Feldman & Wallach Blog On Current Legal Matters

May 1, 2013 UPDATE: Why Conrad Murray isn’t a defendant in the Michael Jackson trial

This is a wrongful death trial – without the killer. How does that make sense? Why isn’t the individual who administered the drugs that killed Michael Jackson being sued for the death of Michael Jackson?

The answer is money. Suing Conrad Murray, in addition to AEG, Live (the Tour Promoter of the “This Is It” tour), would have reduced the amount of money that the Jackson family can pursue if they win.

In a civil trial, money is awarded for “damages.” Damages can be awarded for economic losses (“special damages”) – which are things that are easy to calculate – like lost earnings or medical expenses. Non-economic damages can also be awarded, and these include “general” damages, such as compensation for pain and suffering, and punitive damages (awarded to punish defendants for engaging for highly-offensive conduct).

“Joint and Several Liability” means that each defendant is independently responsible for the whole amount the plaintiff is awarded. If a joint and several award of a million dollars is issued against two brothers, one brother can’t satisfy his entire obligation by paying $500,000 – each brother is obligated for the full million, until it is paid off (the plaintiff can’t collect more than the $500,000.)

Under California Law, economic damages are awarded against defendants as joint and several. But non-economic damages are not joint and several and can be “apportioned.” (see Cal. Civil Code Section 1431.2). So consider this – a jury finds that two companies, Company A and Company B, contributed to an injury. The jury decides that the plaintiff had $500,000 in medical costs and lost earnings. The jury also decides to award the plaintiff $1,500,000 for pain and suffering, plus another $500,000 in punitive damages, totaling $2,000,000. And the jury gets a damages verdict form and decides that Company A is responsible for 99% of the injury and Company B is responsible for 1% of the injury. Under this scenario, both Company A and Company B are each responsible for the $500,000 in economic damages until that’s paid off. If Company A has no money and can’t pay, Company B has to pay the full $500,000. But as to the remaining $2,000,000 in non-economic damages, Company A would owe $1,980,000, and Company B would owe only $20,000.

Let’s put this in the context of the Jackson trial. Imagine that the jury decides in the Jackson family’s favor, and awards twenty million dollars in lost earnings, plus one billion dollars in pain and suffering. Then imagine that Conrad Murray was a defendant and the jury found him to be 99% responsible for Michael Jackson’s death. In this case, Conrad Murray and AEG Live would each be responsible for the twenty million dollars in lost earnings. And Murray doesn’t have any money, so that would be paid by AEG, Live. But as to the one billion dollars in non-economic damages, Murray would owe 990 million – which he doesn’t have and would never get paid. AEG would be on the hook for 10 million. AEG’s total obligation would be thirty million dollars.

Now consider the same result, but with the case brought in its present form — where Conrad Murray is not a named defendant. The jury decides in the plaintiffs’ favor, awards the Jackson family twenty million dollars in lost earnings, and one billion dollars in pain and suffering. There is no Conrad Murray to apportion damages to. So AEG, Live is on the hook for the one billion and twenty million dollars.

An award of one billion and twenty million dollars is a lot higher than an award for thirty million dollars. Which is why Conrad Murray is not a defendant.

April 22, 2013 Update: Public Safety Exception to Miranda in USA v. Tsarnaev

By Ian Wallach, Feldman & Wallach

“NBC News’ Pete Williams said authorities could invoke the public safety exception for up to 48 hours before reading Tsarnaev his Miranda rights, a period of time that far exceeds all previous cases in which federal agents invoked the exception….”

Many are asking what this exception is and what is its origin – a judicial creation that is rarely invoked? An Executive Order? A law enforcement decision? Or some rarely-addressed legal concept that – if expanded – could largely render Miranda obsolete?

The answer, in brief, appears to be “all of the above.”

Almost 30 years ago, in New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court recognized a very narrow exception to the strict application of Miranda that can apply when there is an immediate need for information to secure public safety. In Quarles, a woman claimed a man raped her and pointed a gun at her. The police officer raced into a supermarket the suspect and found a man with an empty holster and demanded to know where the gun was, and the defendant told him. It was conceded that the man was in custody and not Mirandized. But the trial prosecutor argued that there should be a “public safety” exception to the requirement, and ultimately the Supreme Court agreed, stating – “We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”

The real issue in Quarles wasn’t the statement – it was the admission of the gun that was found as a potential result of the “fruit of the poisonous tree.” And today I spoke with Attorney John Wallenstein, who, many years ago, was the trial prosecutor who argued (and perhaps invented) the exception, and he clarified that it was meant to address immediate, real-time harm, and applicable only to true public emergencies where they believe other weapons or explosives are in a place where they can be imminently dangerous. And all courts that have interpreted Quarles have interpreted it to mean “immediate” as in “right now.”

On October 21, 2010, the DOJ issued a memo to the FBI stating that it is more important to get information about terrorist activities than to give Miranda warnings. The DOJ was concerned that if FBI agents continued to give Miranda warnings, the suspects would quickly “lawyer up” and the FBI would not be able to get valuable information. But a DOJ memo does not change the law — this was a DOJ policy decision. It did not create or alter a rule of evidence.

Police are always free to not give Miranda warnings, and frequently don’t, simply because they don’t want the suspect to stop providing information (which happens when anyone gets a good lawyer, as the first bit of advice from any good criminal lawyer is “stop talking”). This is common when Law Enforcement Officers feel that they don’t need a confession to prove the case (as all Miranda does is keep statements that someone makes, while in custody and before being Mirandized, and other evidence found only because of those statements, away from a jury).Many lawyers are justly concerned that this tragic event in Boston, and the Tsarnaev case, can present an opportunity for prosecutors to try to expand Quarles – because, in theory, everything a criminal knows can be related to a public safety issue. Any confession can address someone’s likelihood to commit another crime, etc. And contrary to public opinion, Miranda is a good thing, and protects a lot of people (most of whom are underprivileged and uneducated).Even if every statement that Dzokhar Tsarnaev made over the past few days (or writing or by gesture, as he apparently can’t communicate verbally) was excluded from his trial, it wouldn’t likely have much effect on the ultimate determination as to guilt or innocence. There is enough other evidence to sustain a conviction.
USA v. Tsarnaev will bring a lot of attention to the Public Safety exception expressed in Quarles, and might clarify the exception and its reach. But that case is almost thirty years old — and its reach shouldn’t suddenly be expanded as a result of the Boston tragedy. For now, lets be patient and preserve those (few) rights afforded by our constitutions and our courts.

APRIL 8, 2013 update re: MICHAEL JACKSON CIVIL TRIAL — No Cameras in the Courtroom

The Court has already decided to not have cameras in the Courtroom. The decision as to whether media organizations can bring cameras in the courtroom is, under California state law, left entirely up to the trial judge. The organization fills out a “MC-500” “Media Request to Photograph, Record, or Broadcast” application and proposed order and the parties can support or oppose the request, and the judge will decide. Here, the Jackson family wanted the trial images broadcasted, but AEG Live argued that it would create a media circus, with tons of Michael Jackson fans at the courthouse, and create a huge risk for witness tampering and even pose a serious threat to the health and safety of AEG’s counsel and witnesses. AEG’s counsel, Marvin Putnam, brought the fact that a witness banned from being present at the Conrad Murray trial for being disruptive and threatening witnesses had been present at a hearing in this very trial.
AEG’s reply brief further argues that rather than go through the many factors that a court should determine in deciding whether media access should be allowed, the plaintiffs instead engaged in an attack on Mr. Putnam’s character, including his decision to appear on CNN. However, Kevin Boyle, one of the Jackson family’s attorneys, also appeared on television (and had agreed to prior to Mr. Putnam agreeing to be interviewed). The tone of the attacks and response is more evidence of how nasty this trial will be (as a general rule, for reasons I have a hard time understanding, conduct between attorneys in civil cases is far less “civil” than conduct between attorneys in criminal ones).There are other risks to having microphones and cameras in the courtroom as well — as today’s electronic equipment is so sensitive that confidential communications can easily be intercepted.
I agree with the judge’s decision, and think that cameras inside celebrity trials can interfere with the judicial process and also makes it harder for the lawyers to perform their job. The line-up of potential celebrity witnesses (Prince, Osbourne, the Jackson children) would render this one of the most popular events on television and mandate crowd control outside of a courtroom that is drastically underfunded and short on resources. Plus, inside the courtroom, jurors might focus on the media employees when they are supposed to be watching the witnesses. It could also damage an attorney’s capacity to provide a zealous defense. Sometimes lawyers have to be tough against witnesses. Members of the general public are not likely to send hate mail or heckle Prosecutor Juan Martinez outside of a courtroom after he badgers a witness in the Jody Arias murder trial — but the same may not be true of an attorney who is tough on a child or friend of a beloved celebrity.

The Jury Questionnaire

The jury pool (currently at about 60 potential jurors, and expected to grow to about 100) has been given a 29-page, 123 question questionnaire. http://amradaronline.files.wordpress.com/2013/04/katherine-jackson-vs-aeg-jury-questionnaire.pdf.

Jury questionnaires assist the court in the “Voir Dire” process – a process that, in theory, is designed to help the Court and counsel remove jurors that may be predisposed to one side or another. But in practice, Voir Dire is the only time that lawyers get to directly communicate with jurors, and it’s where solid lawyers begin to sell the themes that they hope will last throughout the trial and to the verdict. This questionnaire illustrates that this game is well underway.

Initially, the questionnaire asks basic juror questions (area you live, highest level of education, if you are in school, what your job is, etc.). Jurors are asked if they know other jurors, the lawyers, or anyone else that might be involved in this case or with the legal system in general. It asks questions about whether the potential juror has received any medical or legal training – which can help determine whether a juror will (properly) be limited to the evidence and knowledge presented, or will (improperly) rely on external facts – things they know that were not presented at trial. It asks about the educational level of others in their home — as the jury won’t be “sequestered” (kept away from the public), so naturally their opinions have been, and will continue to be, formed by those around them.

Smartly, jurors are asked if they blog, or have written to media outlets. This is a quick way for the court to weed out jurors that could be lured into improperly providing information before the trial is over, which could not only result in that juror being removed, but could also result in a mistrial, a tremendous waste of money and court resources. It also asks if they’ve ever suffered extreme financial hardship, which could be another way of finding out which jurors might be susceptible to improper premature requests for information, (or, even worse, improperly exercising their power as a juror). It also asks if they or their family members or friends have worked for media agencies.

The questions then help the lawyers see factors that identify whether a juror is pro-plaintiff or pro-defendant. It asks about political views – conservative, middle, or liberal. It asks their views on the legal system (Are there too many cases? Are verdicts too high? Should their be caps on damages?). It asks about children and grandchildren.

Then come questions that are clearly included to both weed out biased jurors and help set out each party’s theme. For example:

“DO YOU THINK OFTEN BLAME OTHERS FOR THEIR OWN PROBLEMS, RATHER THAN TAKE RESPONSIBILITY FOR THEIR OWN ACTIONS” (the central theme of the defense is that Michael Jackson hired and controlled Dr. Murray, not AEG).

DO YOU HOLD THE OPINION THAT IF SOMEONE DIES UNEXPECTEDLY, IT IS USUALLY THE RESULT OF SOMEONE’S NEGLIGENCE? (Jurors frequently have to wrestle with the sad and frightening truth that people die young. And that is an easier reality to accept if you can blame someone for else for it, even when there may be no fault at all, or the fault may lie with the decedent. This question helps the defense weed out those who don’t wish to accept that, in nature, people can die you without the fault of third parties).
Many questions are about how people perceive celebrities – do they think celebrities can act as they please, abuse their power, bend the rules, etc. All of these questions support the defendants theme that Michael, not AEG, had control over Dr. Murray. Conversely, there are questions asking if famous musicians have too much power placed on them to perform, and whether they are victims of the practices of entertainment executives (supporting the theme of the Jackson family – that Michael Jackson’s death was actually the result of AEG’s control over Dr. Murray).

The 29 page, 123 question questionnaire asks about jurors’ thoughts on drug addiction, recovery, responsibility, reliance on physician’s advice, and, most importantly, if they’ve already formed an opinion as to who is responsible for Michael Jackson’s death. The questionnaire is another example of what the core legal and factual issues will be — legally — who controlled Dr. Murray when Michael Jackson died (AEG or Michael Jackson:), and factually — will the jury be emotionally-biased and be inclined, no matter what the law is, to compensate the family of a beloved icon who died too soon?


Thoughts on the Civil Trial of Michael Jackson’s Family against AEG, Live
By Ian Wallach, Feldman & Wallach, http://www.feldmanwallach.com

This case will consume perhaps three months of trial, then years of appeals and other proceedings. It’s about an astronomical amount of money (up to $40 Billion). There is one remaining legal cause of action; one real question (who controlled Dr. Murray); and two great lawyers playing a double-sided game – what does the law require, and how can the law be used to present facts that effect the jury?

Normally, complaints seek unrealistic sums of money. Because of years of this “shoot-for-the-moon” pleading practice, the amount sought in a complaint rarely reflects what a plaintiff really wants. But here, who knows? Michael Jackson’s estate was worth billions. At times, he was worth billions. And the plaintiffs are his family who lost their iconic-pop-star father too early — no one can put a value on that.

The lawyers are among the best in the country. KC Maxwell, representing Michael Jackson’s mother, Katherine, and his children, successfully prosecuted Scooter Libby in the Valerie Plame scandal and got a conviction and a very severe sentence (which was then drastically commuted (reduced) by President Bush). She is trying the case with Kevin Boyle of Panish, Shea, and Boyle — who has won several multi-million dollar trial verdicts.The tour company, AEG Live, is represented by Marvin Putnam of O’Melveny and Myers, who embodies professionalism — towering, impeccable, professional, eloquent, polite, and razor-sharp.

Two of the three original legal theories are gone. The Jackson family previously argued that there was a “special relationship” between the tour company and Michael Jackson, and that the company had a duty to protect him from all foreseeable harms. “Special Relationships” exist under California law for situations where one has almost complete control over the other – for example, a jailor has a special relationship to an inmate (an issue in many of our cases), and a shopping center owner or restaurants can have a special relationship to customers. The Court didn’t believe there was sufficient evidence of control to let this argument proceed to trial. Another theory was that Murray was the employee of the tour company and therefore the tour company was responsible for his actions. But the Court didn’t see any evidence of this, so this was dismissed too.

This leaves a theory of negligent entrustment – did the tour company have and continue a relationship with Dr. Murray, such as an independent contractor relationship, where the tour company should have known that Dr. Murray would put the tour company’s interests above Michael Jackson’s health? That is what the jury must decide. And Murray won’t testify – he has on ongoing appeal of his criminal conviction, so he will have a 5th amendment right to stay silent and will exercise it.

It is a hard theory to prove legally. A jury will have to decide who controlled Murray – the tour company or Michael Jackson. But in making that decision, they will see information that may make them dislike both parties, and be more guided by human sympathies than reason.

Legally, the tour company has a strong case — Michael Jackson used other doctors, and he used Dr. Murray before. And he was a grown man, capable of making his own decisions (and he did make decisions that could seem controlling – he was eccentric and could afford to be). The Court stated that evidence that Murray was in debt could be important, as the tour company apparently never looked into it. But when hiring a doctor, do you hire who you think will heal you, or who has better credit?

Practically speaking, however, it’s tough to decide whose case is stronger. On the side of Jackson’s family, the jury has to consider the mother and children of a beloved iconic pop-star who died too early. A jury will sympathize (that weight is tremendous). The family will argue that the tour company was so concerned about money that it didn’t pay attention to warning signs (including an internal memo about Jackson’s health). And this legal argument will allow the jury to see shady practices of tour promoters, potentially turning jurors against the defendants.

And a parade of celebrities will be condemning AEG and assisting the plaintiff in their pursuit – Sharon Osbourne has stated that she will testify that AEG executives knew that Michael was not doing well and might not be able to perform (an argument of little legal significance, as the Court has already ruled that AEG had no duty of care to Michael, but an argument that will have a strong emotional impact on the jury). And Prince reportedly is ready to testify to talk about how AEG mistreated him in the past (again – not really relevant to the question of who controlled Dr. Murray, and to what extent, but potentially impactful on the jury).

Conversely, the tour company will introduce evidence of the child molestation cases (even though the validity of those cases isn’t relevant to this trial) and argue that these cases stressed Jackson out, and so he ordered Murray to give him more drugs. Just discussing these molestation cases may turn some jurors against Michael Jackson and make them not see him as a victim.

The plaintiffs face an uphill battle as to the law. The tour company faces an uphill battle as to the jury. The war promises to be disturbing, sad, and fascinating.