02.04.10

Jackson Prosecutors' Internal War

Will the L.A. District Attorney’s office blow yet another big case? Gerald Posner on the internal battles that helped delay the charges expected against Dr. Conrad Murray today.

Will the L.A. District Attorney’s office blow yet another big case? Gerald Posner on the internal battles that helped delay the charges expected against Dr. Conrad Murray today. Plus, read Gerald Posner's report on Conrad Murray's defense attorney.

Will they blow it again?

The Los Angeles District Attorney's office, which has seen a two-decade streak of losing its highest-profile Hollywood cases, from Robert Blake to O.J. Simpson, is supposed to start its latest trial of the century today. So far, with Dr. Conrad Murray expected to turn himself in to face involuntary manslaughter charges, they're off to a rough start.

A retired senior Los Angeles police official and a Los Angeles-based defense attorney, both familiar with the specifics of the Michael Jackson death probe, describe a series of angry battles, encompassing which DA would handle the case, what charges should be brought and whether to go to a grand jury or have a preliminary hearing. This partly explains the long delay in moving forward with the case, which has puzzled so many observers. These fights, the sources said, even pitted prosecutors against their own Bureau of Investigation. Such accounts dovetail with a TMZ report yesterday that the DA's office has been feuding with the L.A. Police Department, and that today's anticipated arraignment of Dr. Murray might even be indefinitely postponed due to disagreements between the two about how he should be arrested and processed.

"They have no choice but to deliver an indictment or there would be hell to pay."

The defense attorney said that war among the prosecutors started last September, three months after the pop superstar died of a drug overdose. The first skirmish, a winner-take-all affair, featured two of the DA office's most powerful figures, Major Crimes's territorial chief, Patrick Dixon, and William Hodgman, the chief of Target Crimes. After Jackson's death, the Los Angeles police had dealt only with the Target Crimes Division, which describes itself as doing work on arson, crimes against peace officers, stalking and threat assessment, and child abductions. It is not clear why Target Crimes got the case in the first place. But Dixon was adamant that his Major Crimes unit, which handles all celebrity cases, should have jurisdiction. When Hodgman dug in his heels, the dispute escalated straight to the desk of the District Attorney, Steve Cooley.

Gerald Posner: Conrad Murray’s Defense Attorney Is the Next Johnnie CochranCooley, the son of an FBI agent and a career prosecutor, is the first Los Angeles County District Attorney in 70 years to be re-elected to a third term. He has a no-nonsense reputation, and sided with Dixon, much to the chagrin of Target Crimes, which had by then put in more than two months of work.

Ed Chernoff, Murray’s Houston lawyer, knew around this time that there was something wrong when in late August, a Los Angeles police detective told him, “Hodgman is going to be taken off the case.”

“Why,” Chernoff asked.

“There’s something going on at the DA’s office.”

“I had a warm relationship with Hodgman,” Chernoff told me. The two exchanged information, and worked together in vain to try and stop the late August release of a sealed search warrant in Houston. Hodgman had even promised to call Chernoff and discuss the case before the DA settled on any charges.

The move to Major Crimes may have ended the fight over turf, but once it was there, more problems followed. David Walgren, a respected veteran who is also handling the Roman Polanski case, took on the assignment. He had no rapport with Chernoff as a starter.

“When I would call him and say, ‘Hi, this is Ed Chernoff. What’s going on?’ He would say, ‘No comment.’ I’m not kidding. He wouldn’t talk to me at all.”

Chernoff wasn’t the only one having trouble adjusting to Walgren. Throughout the fall, Walgren was at odds with Dominick Rivetti, Chief of the DA’s Bureau of Investigation. According to the former police official, who counts many current members of the DA's office as friends, some of Rivetti's investigators had dubbed the Jackson probe "a shit case," and thought that if it were not for public and family pressure, there might not even have been a probe.

"Eight months of a costly investigation, in a bankrupt state," one prominent defense attorney told me, "they have no choice but to deliver an indictment or there would be hell to pay."

The O.J. Simpson trial cost the state $9 million and Michael Jackson's $2.7 million child abuse trial ended in an acquittal. The Robert Blake murder trial, which ended in a "not guilty" jury verdict, cost the state an estimated $5 million between the investigation and the trial.

Walgren, according to the police official, had contentious meetings with Rivetti's investigators, sometimes irate that they were unable to draw a firm consensus on the medical evidence needed for a higher charge. He was also disappointed when he initially reviewed the police evidence, which reportedly included conflicting conversations with medical experts to determine whether Murray's behavior in his treatment of Jackson, especially on the fatal night, fell outside the bounds of reasonable medical practice. And he was disappointed, says the police official, to discover that investigators had determined that Murray's medical past did not include a large dispensing history of opiates or pain pills—the types that were prescribed in significant amounts to Jackson by other physicians.

The early debate in Major Crimes was whether to seek a murder indictment or merely involuntary manslaughter. Evidently, says the source, voluntary manslaughter was not seriously considered. "It either was going to be strong enough to go after a murder charge, or they were going to settle for the safest charge," he says.

At one impassioned meeting last November, a member of the Bureau of Investigation is said to have told Walgren, "How are we going to convince 12 people to understand all the medical terminology and believe Propofol killed him when our experts don't even know for sure." It was a turning point in the internal debate over what charge to pursue. By December, the consensus was that involuntary manslaughter was the charge on which the office had the greatest chance of obtaining a conviction. Walgren, according to an attorney who knows him well, says he's always been an advocate that over-charging is problematic. "He'd rather get a conviction on a smaller count than have someone walk free on a headline grabbing indictment," says his friend.

As a consensus swirled around involuntary manslaughter, the next fight was over whether to proceed to a grand jury to obtain an indictment—preventing the defense from getting an advance look at the prosecution's case—or to bring the matter for a hearing before a judge, as was done in the O.J. Simpson case. According to the retired police official, Walgren urged that the case be presented to a grand jury but was overruled by Dixon.

Prosecutors often joke that they can get a grand jury—which only receives handpicked evidence—to indict a ham sandwich for a crime, but there was fear in the office that a grand jury might not find the evidence developed by the investigators to be compelling enough to issue an indictment.

"This may be one of those rare cases where a grand jury of ordinary citizens is not ready to attach criminal liability to the doctor," prominent Los Angeles defense attorney, Mark Geragos, tells me. "The DA might feel better off in front of a judge."

Also, if there are internal doubts about the strength of the case, and how best to present complicated medical testimony to a jury, the District Attorney might want to do a test run through a preliminary hearing and afterward make adjustments for the trial.

"They did that on the USC case (a 2007 infanticide case against a USC student)," Geragos adds. "I destroyed the coroner in the preliminary hearing, and they hired a new expert to repair the damage for the trial." In that case, the DA's plan didn't pay off. A trial judge dismissed the charges.

In overruling Walgren, says the former police official, Dixon and others also decided they gained a strategic advantage in a preliminary hearing. In Los Angeles court jurisdiction, a case brought by indictment goes to the downtown courts. One brought by a preliminary hearing will go before the LAX Court, which has a higher demographic of black jurors. Says the attorney who is a friend of Walgren's: "Since Michael Jackson has been totally embraced now by the black community, it's better for the prosecution to have a large black jury pool."

That preliminary hearing could be held as soon as 10 days after Murray's arraignment, but it's not expected for several weeks since the defense is likely to use that time to digest all the documents they will receive from the prosecutors after Murray is officially charged. From there, the Jackson drama will move from the private to the public domain. When asked for comment on the internal acrimony so far, Sandi Gibbons, the Los Angeles District Attorney Public Information Officer responded: "We would not comment on such unfounded drivel."

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Gerald Posner is The Daily Beast's chief investigative reporter. He's the award-winning author of 10 investigative nonfiction bestsellers, on topics ranging from political assassinations, to Nazi war criminals, to 9/11, to terrorism. His latest book, Miami Babylon: Crime, Wealth and Power—A Dispatch from the Beach, was published in October. He lives in Miami Beach with his wife, the author Trisha Posner.