9/20/2011

By Danielle Goldman, J.D. Candidate

Last week, jury selection began in the trial of Dr. Conrad Murray, a man who has become a media sensation, if not a household name, since June 2009. Unfortunately for Murray, the cause of his renown is not a lauding of his medical skill, but rather the allegation that he killed Michael Jackson. Charged with involuntary manslaughter in the King of Pop’s death, Murray faces up to four years in prison for his supposed role in administering to Jackson an ultimately lethal dose of the surgical anesthetic propofol.[1]

Unsurprisingly, given the publicity surrounding the case and the fact that the trial is to be televised, Murray’s attorneys sought to have the jury sequestered during the length of the trial. However, Superior Court Judge Michael Pastor has refused to sequester, a decision affirmed by the California 2nd District Court of Appeals,[2]begging the question: Will Conrad Murray receive a fair trial?    

The Sixth Amendment guarantees defendants such as Murray the right to a jury comprised of unbiased jurors, specifically providing, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….”[3] According toU.S. ex rel.Stickler v. Tehan, the test for impartiality is “whether the publicity created such a deep impression upon a juror such as to raise a presumption of partiality, and which would close the juror’s mind against testimony offered in opposition to the purported facts.”[4] The defense makes a strong case that if the minds of the jurors are not already made up due to publicity leading up to the case, there is a strong likelihood that they will become contaminated as a result of the ongoing official and unofficial media commentary throughout the trial.

Murray’s attorneys assert that the trial is likely to generate an unprecedented amount of media coverage given Michael Jackson’s role as a beloved public figure. The outpouring of grief around the world has been astounding, with millions of people consistently tuning into any and all news of Jackson’s death and its circumstances since the tragic event itself just over two years ago. When polled by Judge Pastor at the start of jury selection last Thursday, every one of the approximately 160 individuals in the jury pool had heard about the case beforehand,[5] indicating the widespread publicity that both the case specifically, and Jackson’s death in general, have received over the last several years.

In requesting sequestration of the jury, defense attorneys expound upon this, pointing to the amount of attention applied to the recent trial of Casey Anthony—who, unlike Michael Jackson, was not a public figure prior to the case—as a warning of “‘the danger that is created to a fair trial when basic information is managed for the purpose of entertainment and television ratings.’”[6] During the Anthony trial, television personalities such as HLN host Nancy Grace continually assassinated the defendant’s character, engaging in “‘virtually nonstop on-air abuse of not only [her] but of the jurors and the defense attorneys involved.’”[7] In the case at bar, such abuse will only be compounded by the reality that Jackson was a world-renowned public figure whose fans are out for justice. They want to see someone held responsible for the King of Pop’s death and, as a result, have been vilifying, and will continue to vilify, the man allegedly responsible.  Even more so than in the Anthony case, in addition to traditional television and news-media coverage of the trial, fans will be taking to Facebook, Twitter, blogs and other such sites to publicly cry out for a conviction. Exposure to such chatter can easily result in contamination of the jury, either swaying individual jurors to align themselves with the expressed views of the public, or causing jurors to base their decisions on the potentially untrue “facts” spouted over social media, rather than on the true evidence of the case that is presented at trial.

Judge Pastor’s response to the ubiquity of information that will be available during the trial is two-fold. His first contention is that people already know so much about this case that they have likely already made up their minds, in which case there is little harm to be done by exposure to additional media coverage. As was noted inUnited States v. Moon,

Jurors need not be totally ignorant of a defendant in order to be fair and unbiased. Even where a prospective juror has formed some preconceived opinion as to the guilt of the accused in the case on trial the juror is sufficiently impartial if he or she can set aside that opinion and render a verdict based on the evidence in the case.[8]

Additionally, Judge Pastor trusts in the jurors to follow his instructions regarding taking care to avoid any outside information about the trial. The selected jurors will be advised that, while they are allowed to use the internet, they may not post any messages on social media, send or read Tweets, or Google information about the case on penalty of jail time or fines.[9]

However, it is simply not realistic to expect jurors to go home every day and manage to avoid all mention of the case while engaging in standard leisure activities like watching television and browsing the web. Due to each of the potential juror’s prior familiarity with the case, it is questionable whether Murray could have been afforded a truly impartial jury even if his request that they be sequestered during the trial had been granted; without insulation of the jury, impartiality seems impossible. Perhaps Murray’s attorneys should have attempted to take advantage of the “Singer exception,” through which a trial by judge alone may be granted in “situations where ‘passion, prejudice, public feeling’ or some other factor may render impossible or unlikely an impartial trial by jury”[10]; yet they did not pursue this path, and trial by jury is set to commence shortly.        

In the court of public opinion, Dr. Conrad Murray has already been convicted. The combination of the media maelstrom surrounding this case and Judge Pastor’s refusal to sequester the jury can only lead to one end: exertion of significant influence over the jury to lay down a conviction in Judge Pastor’s courtroom as well.