Discord over strategy on Murray's defense team

The lawyers representing Conrad Murray in Los Angeles Superior Court had no reason to cheer on Nov. 7, but it wasn't  just the guilty verdict that created tension on the trial team.

For much of the trial, discord dominated relations between Houston lawyer Ed Chernoff, who led the criminal-defense team for Murray, and his co-counsel J. Michael Flanagan of Glendale, Calif.'s Flanagan Unger Grover & McCool. Neither lawyer plans to represent Murray on appeal.

"This is the first time I've done a case with co-counsel in 30 years, and we had a difference of opinion about how the case should be handled," Flanagan says.

The California criminal trial of Murray ended with the jury convicting him of one count of involuntary manslaughter related to the death of pop star Michael Jackson. Citing Murray's significant ties outside the state of California (Murray formerly had a practice in Houston) and public safety concerns, Los Angeles Superior Court Judge Michael E. Pastor remanded Murray into custody, noting sentencing would occur on Nov. 29.

Chernoff of Stradley Chernoff & Alford sat at the defense table with Flanagan for the entire six weeks of the trial. At the start, Chernoff lived at Flanagan's home to save on expenses, but after several weeks Chernoff says he moved out. The cause of the strained relationship? Disagreements over trial strategy, specifically how to handle the examination of expert witnesses, among other things. Plus, Chernoff says, "You can only impose on co-counsel for so long."

Flanagan says, "Dr. Murray got Monday morning-quarterbacking on his doctoring, so I don't want to be Monday morning-quarterbacking Ed's lawyering." But he notes that he disagreed with Chernoff over whether Murray should testify on his own behalf: Flanagan thought he should, but Chernoff said no. In the end, Murray did not take the stand.

"You had a doctor providing an unusual drug under unusual circumstances for an unusual person. We could never get past that as logical as we tried to be. And as much as we tried to differentiate the case from that, we couldn't get past it. There was an elephant in the room and we could never feed it enough peanuts," Chernoff says, referring to the decision not to have Murray testify.

But Flanagan says, "I think the elephant was the need for the doctor to explain what he did."

Flanagan says he also proposed a different tack for cross-examining the last prosecution witness: Dr. Stephen Shafer, an anesthesiologist. "I thought we ought to go after Shafer real hard. Ed didn't," Flanagan says. At trial, it was Chernoff who cross-examined Shafer — instead of Flanagan, as the defense team initially had planned.

The tension between Chernoff and Flanagan was apparent in the documentary "Michael Jackson and the Doctor: A Fatal Friendship," which recently aired on MNSBC and other networks. In one scene, Chernoff prepares to leave Flanagan's house as Flanagan curses at Chernoff, then admonishes him saying he has the trial strategy "all mapped out. . . ."

Chernoff says "the carnival atmosphere" put more pressure on the defense team and on Murray. "The press tried to create drama; the whole thing was a reality show," Chernoff says. Thankfully, the Los Angeles County Sheriff's Department helped the defense team use "backdoor entrances" to avoid the press, he says. "They took my client and me away from the hordes of people out there when they could have done nothing."

Occasional weekends home in Houston and several excursions to the beach in California also eased the stress, Chernoff says.

"In a trial like this you are going to have some disagreements among the counsel, and the lead counsel has to make the decisions," Chernoff says. "And that's the way it was happening at this trial. I had to make some decisions."

Back to California

Within 48 hours of the verdict in People of the State of California v. Conrad Robert Murray , Chernoff had flown back to Houston, welcomed by his law partners who needed him to get back to work right away. But it isn't just Murrays' sentencing that will have Chernoff and partner Matt Alford back in California on Nov. 29.

Judge Pastor has ordered Alford to appear before him at a hearing related to Alford's September appearance on NBC's "Today" show. Pastor had issued a gag order in Murray's case. "In my 20 years of practice I have never knowingly or otherwise violated a court order," Alford says.

Chernoff says of the hearing, "I think it's bullshit and typical."

Chernoff and Flanagan will represent Murray at his Nov. 29 sentencing hearing, where Murray faces up to four years in prison. Chernoff says he has turned to a sentencing specialist with a background in the California justice system for help preparing. He has not decided if he will present any witnesses at the hearing. Unlike Texas, California juries do not participate in sentencing, he says.

Sandi Gibbons, a spokeswoman for the Los Angeles County District Attorney's Office, which prosecuted Murray, did not return a telephone call and an email seeking comment.

Chernoff says he has received telephone calls from prospective clients who watched him defend Murray. "I've already got a couple calls from California," notes Chernoff, who passed the California bar exam last year. [See "        Houston Meets Hollywo od," Texas Lawyer , Jan. 31, 2011, page 1.]

But he has no plans to take on any more California cases. "I'm not saying there is not another case; I reckon I will. But it's going to have to be a special case."

It is unknown who will represent Murray in his appeal, Chernoff says. Flanagan says he prefers trial work. Chernoff says he already has spent three months away from his Houston firm, and his partners and family "deserve better than that." Plus he has a trial set to begin in a Houston court on Dec. 15.

He believes a new lawyer who wasn't involved with the trial will have a fresh perspective and be better equipped to develop an effective appellate strategy for Murray.

Citing attorney-client privilege, Chernoff and Flanagan decline to discuss how much they charged Murray in legal fees. But so far, the financial remuneration for representing Murray has not been equal to the task, Chernoff says. "If Dr. Murray had paid me a quarter-million dollars, it was entirely too little considering the amount of work that was involved and the collateral issues that were attached," Chernoff says.

In January, Chernoff told Texas Lawye r, "If I walk out with my client at the end of the trial, it's going to have a tremendous impact on my practice. If I don't walk out [with him], I'm going to be the guy who lost the biggest trial since O.J. Simpson's." Now that Murray's trial is over, Chernoff sticks by that sentiment.

"I'm glad I did it," he says, "but, yes, it's a big loss. But as a defense attorney you are not worth a crap if you don't try these things. Defense attorneys often lose, but what differentiates those attorneys are those who are willing to get on the bull in the first place."

MJFS - law.com