Tu be or not Tu be

by Anne Bremner

In the ever-evolving investigation into the death of Michael Jackson, there has been yet another bizarre twist: Dr. Conrad Murray has lodged his defense as suicide by Jackson. But there was another bizarre twist before of great note; the one-minute YouTube video released by Dr. Murray in August 2009, a sort of infomercial for the old PR tactic of answering the question you wish was asked. In this instance, a PR ploy that may well have backfired.

While YouTube is unquestionably an effective vehicle for producing and disseminating an unassailable statement, the public is not that easily duped. Evading cameras, microphones and probing questions--understandable. When that silence is broken by an obviously orchestrated statement such as Murray's, however, it is redolent of propaganda. Truth isn't delicate, fragile or easily shrouded. It can withstand being scrutinized, poked at, and examined from every angle. We, the public, have a healthy skepticism towards anything too slickly packaged. This is déjà vu all over again.

YouTube allows us to create our own entertainment, create instant celebrities--the piano playing cat, skateboarding bulldog, Snowball the disco cockatiel. It is a forum for raw footage of everything from natural disasters and amazing accidents, to horrifying incidents--the honor killing of a young woman by her own family, protests that turn into riots, or the abuse of power. It is predictable that such a powerful medium would mutate into an easily accessible marketing tool. 

Murray's tape, however, is a prima facia case of exploiting the medium, some would say, not well. The slickly produced video is out of place among the delightfully homespun wobbly, grainy, videos we find so endearing. The obvious splice in Murray's short video brings to mind (for those of us old enough to remember) the Nixonian 18-minute gap in the Watergate tapes. It raises our curiosity, prompting us to ask, "What was left out?"

Couldn't this man make it through a 60-second statement without requiring editing?

Disseminating information on YouTube is the cyber equivalent of a driving a top-speed funny car dragster--a short burst of excitement that requires the ability to maneuver a vehicle at lightening speed, and more importantly, bring it to a stop. As any lawyer who has represented a high-profile client will tell you, we spend far more time and effort keeping clients out of the public eye, flying under the radar. High publicity, sensational cases require meticulous handling, from the basics of keeping a client safe and safeguarding their privacy, to preserving their legal rights, staunching the flow of misinformation, and conducting independent investigation while responding to media, law enforcement and government inquiries.

While many lawyers utilize the advice and services of public relations professionals, there is a danger in confusing clever PR for skilled lawyering. In many cases, the lawyers and PR agents involved in a case early on will be replaced or dismissed as a case gathers steam and proceeds through the judicial system. One of the difficulties of taking on a client in those circumstances is undoing the damage that well-intentioned but detrimental PR may have already done--clients who have said too much, said the wrong thing, given the wrong impression. PR professionals can often have divergent purposes from defense lawyers. PR may concentrate on salvaging a career, public image, and even arranging paid appearances or book deals without an eye to how that may play out to a jury later.

As we often say, silence requires no PR. In this case, it may turn out that the evidence will exonerate Dr. Murray if it proves impossible to isolate, from a medically convoluted sequence of events, a single act that irrefutably lead to Jackson's death. Witnesses can and do lie, but evidence never does. In the certainty that evidence will exonerate, no words are necessary. The problem with self-serving statements is that they are often made by individuals whose credibility is already in dispute. I laughed at my 20-something neighbor's reaction to Murray's video. "The dude has passed the point where we're just gonna take his word for it. Dur," my neighbor said.

As the medium evolves, so will its implementation. I love it as a forum for all sorts of wacky, fascinating, shocking, inspiring and entertaining moments. As a lawyer, I would approach its use with great caution. Tu-be? Dancing Cats, singing dogs, surfing squirrels. The rest, at least for now, is not tu-be.

Now, Dr. Murray is presenting his defense in person. From the sublime to the ridiculous, the resulting disbelief may remain the same.

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Doctors Who Do Harm: Beware the Ghost of Anna Nicole

by Diane Dimond

You may not give a darn about the late buxom sex-pot Anna Nicole Smith, but the recent verdict in a Los Angeles criminal case stemming from her drug-overdose death has certainly captured the attention of doctors nationwide. I’ll bet insurance companies specializing in malpractice medical coverage have snapped to attention as well.

After Anna Nicole Smith died in February 2007, three of the people closest to her--her attorney and lover Howard K. Stern, her psychiatrist, Dr. Khristine Eroshevich, and her personal physician, Dr. Sandeep Kapoor were criminally charged. Among the most serious of the original 23 charges was “providing controlled substances to a known addict.”

Interestingly, the trio was never accused of actually causing Smith’s death, and along the way some of the other charges were dismissed. It came down to a trial about whether they’d engaged in a conspiracy to help the 39-year-old former Playboy cover girl and TV personality obtain prescription drugs through the use of false names and misrepresentation.

During nine weeks, the jury testimony boiled down to this:

Stern, Eroshevich and Kapoor finagled prescriptions using both real and fictitious names to get mountains of drugs for Smith. She had recently given birth to a baby girl and a few days later she suffered through the overdose death at her hospital bedside of her 20-year-old son, Daniel. So, as the defense team presented it at trial, no wonder the poor woman needed drugs to get her through the ordeal! The prosecution argued this threesome of so-called professionals--an attorney and two doctors--acted not only unethically but that they each also crossed the line sexually with Anna Nicole Smith.

The 11 drugs found in Smith’s systems ranged from methadone (10 pills a day as prescribed by Dr. Kapoor and taken even while Smith was pregnant), to powerful sleep aids like chloral hydrate, and a long list of narcotic painkillers like Vicodin (prescribed by Dr. Eroshevich). The name found most often on her prescription bottles was Howard K. Stern but the doctors also used Jane Brown, Susie Wong and Vickie Lynn Marshall, which just happens to be Anna Nicole’s real name. Dr. Eroshevich was warned by two different pharmacists that the type and amount of prescriptions she was writing for her patient amounted to “pharmaceutical suicide.” Still, the state said, Eroshevich personally transported massive amounts of prescription drugs to Smith in both Florida and the Bahamas.

The jury ultimately acquitted Dr. Kapoor but found Stern and Dr. Eroshevich guilty of the false name conspiracy. While the dead starlet’s supporters moaned that it wasn’t enough of a conviction, the verdict still sent an earthquake sized shock through Hollywood’s celebrity, medical and legal communities.

California defense lawyer Harlan Braun told the Associated Press that writing bogus prescriptions in today’s paparazzi inspired media atmosphere is routine. “It’s absolutely necessary for survival in Hollywood. If … keeping these people anonymous is a criminal act, a lot of doctors will have to refuse to take celebrity patients.”

Do famous people deserve privacy about their medical conditions? You bet. Do their doctors get to break the law while attempting to facilitate their privacy? No way. I, for one, hope we’re witnessing the beginning of a trend where over-prescribing doctors are charged with serious crimes and lose their medical licenses permanently if convicted.

Prescription drug abuse is at epidemic levels. We spend millions on campaigns against street drugs like cocaine, methamphetamine and heroin but we say little about the scourge of desperation and crime left behind by those drugs that come via a prescription pad or an illicit internet “pharmacy.” I quoted studies in this space last year saying a total of 34 million Americans are currently taking painkillers or anti-depressants. Our kids watch us do it and many mimic the behavior.

L.A.-based attorney and addiction intervention specialist Darren Kavinoky agrees: “The fact is that we, as a nation, love our drugs. Pharmaceuticals appeal to a broader (and sadly, younger) audience, because they don’t have the stigma associated with street drugs, and are readily available … pills are now number two behind marijuana for young people, and we are seeing more addiction and more overdose deaths because of it.”

On the verdict in the Anna Nicole case Kavinoky says there’s one upcoming defendant who should be shaking in his boots. He is Dr. Conrad Murray who was tending to Michael Jackson when the entertainer died last June and who is set to go on trial soon on charges of involuntary manslaughter. Kavinoky explains that to reach their guilty finding the Smith jury had to have dismissed the expert medical testimony, “We’re all taught to believe doctors, to trust their judgment as being superior to our own. Those jurors had to disregard this notion in order to get to a conviction. This willingness to disregard the judgment, wisdom and experience of a medical professional should make Dr. Murray righteously nervous.”

Frankly, I hope it makes over-prescribing doctors everywhere mighty nervous.

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