Jacko's Lethal Injection?

New reports suggest that Michael Jackson's personal doctor may have administered the powerful anesthetic that killed the King of Pop. Former O.J. prosecutor Marcia Clark on the charges Dr. Conrad Murray could face—and whether it was murder.

The timing is amazing. No sooner did California Attorney General Jerry Brown bring down the hammer on prescription-pad pushers in the case involving Anna Nicole Smith, than a star with a million times the wattage, Michael Jackson, died of a drug cocktail seemingly administered by his recently hired live-in doctor, Conrad Murray. The Golden State’s crackdown on doctor-enablers could not be timelier had Brown owned a crystal ball.

Prosecutors must decide between a relative slap on the wrist—involuntary manslaughter—or the severity of second-degree murder. They have absolutely no options in between.

Until now, prescription-drug abuse hasn’t been a particularly sexy issue, news-wise, Rush Limbaugh’s laughably hypocritical OxyContin busts—yes, multiple—notwithstanding. Jackson changed that, drawing attention to an issue that, more than crystal meth or medical marijuana or the return of heroin, is the drug story our time—prescription narcotics have become America’s favored adult high, the cocaine of the new millennium.

And standing right in the middle of the bulls' eye is one Conrad Murray. I can’t say I’m surprised. As the last of a conga line of doctors administering to Jackson, he is the most logical loser of smoking gun musical chairs. And the fact that his lawyer has refused to say whether he gave Jackson the dangerous anesthesia Propofol—even as reports emerge that he administered it on the night of Jacko's death—hasn’t been lost on anyone, nor has the suspected use of Diprivan. I’ve watched as the focus of the search warrants went from the outer rings, tracing drug lot numbers and pharmacies, to each successively closer inner ring, until they finally aimed straight at the 10-ring: Murray himself.

As someone with some experience prosecuting high-profile California murder cases, I’m struck by the two extremes the government faces as it builds a case against Murray. If they go forward, prosecutors must decide between pursuing a relative slap on the wrist—involuntary manslaughter—or the severity of second-degree murder charges. They have absolutely no options in between.

To understand why, here’s the fact set that prosecutors are dealing with: In order to make a viable case against Murray, or anyone else, the government will have to carefully connect the dots and leave no gaps for the defense to slide through. “If the cause of death is Diprivan, it gets a lot easier, because there’s no such thing as a valid prescription,” explains a friend of mine, a veteran Southern California prosecutor. “Only a doctor or nurse, or someone with access to a hospital medical supply can get it. The trick then will be to prove how Murray got it and that he gave it to Michael the day he died.”

That’s easier than it sounds. If Jackson died from Diprivan and cops find evidence that shows what numbered lot the fatal dose came from, then they can trace it to its originating facility. If Murray was tied to that clinic, and he was there shortly before Jackson’s death, then a witness putting Murray with Jackson near the time of his death creates a decent case that he injected the lethal dose.

This would be true of any other drug that caused Jackson’s death. The only difference: If it’s a lawfully prescribed drug, there might be no case, because a doctor isn’t liable if a patient overdoses on something properly prescribed. This is Murray’s best hope. Thus, the specific drug mix in Jackson’s system is as critical a component of the autopsy report as a confirmed overdose.

Assuming the results come back showing traces of Diprivan, and the timeline points to Murray, here’s how the prosecutor’s dilemma breaks down:

Involuntary manslaughter: Sometimes called “misdemeanor manslaughter,” this is the lowest form of homicide charges. It is based on criminal negligence, meaning that the defendant didn’t have an intent to kill and didn’t act with a conscious disregard for life and it typically occurs when someone commits a misdemeanor in a way that is dangerous, or when someone commits a lawful act but in a manner that involves a high risk of death. For example, shaken baby syndrome, or the commission of an assault in the course of a bar fight may qualify as an involuntary manslaughter.

Giving a dangerous drug like Diprivan to someone in their home could fit here, depending on the circumstances. Sentence exposure: two, three or four years in state prison.

Voluntary manslaughter: This is a homicide that’s committed in the heat of the moment under circumstances that make it reasonable for someone to think he needed to use lethal force. For example, if a big guy threatens your best friend with a knife and you grab a nearby tire iron and bash him in the head before he can make a move, you’ll likely be found guilty of voluntary manslaughter, not murder.

This is often a compromise charge for murky circumstances. But the circumstances that allow for a voluntary manslaughter charge don’t apply in this case—splitting the baby is not an indictment option, should prosecutors target Murray.

Second-degree murder: Because no one’s going to claim that Murray meant to kill Jackson, save an eight-digit Swiss bank account found somewhere, first-degree murder is off the table. To prove second-degree, it would have to be shown that Murray acted with gross negligence in administering the lethal drug. In legal parlance, that he intentionally committed an act that the natural consequences of which were dangerous to human life.

If it can be proven that Murray knew of the risks involved in injecting Jackson with the drug that killed him and did it anyway, the law presumes that he acted with malice and he can be found guilty of murder.

Due to the Diprivan speculation, second-degree murder looks like a real possibility. By all accounts, the dangers of administering this drug outside a hospital, where a patient can’t be effectively monitored, are very clear. No jury’s going to believe Murray didn’t know that giving Jackson Diprivan was life-threatening.

A conviction of second-degree murder carries a sentence of 15 years to life.

Obviously, a lot is riding on those toxicology reports. And no one is anticipating them more than the local prosecutors—and Conrad Murray.

Marcia Clark, the former L.A. district attorney who prosecuted the O.J. Simpson murder case, has since served as a legal commentator on television. She has written a bestselling book, Without a Doubt, served as a columnist for Justice magazine and is finishing a crime novel.