Updated: Murray's lawyers want new lab tests: the judge rejects the request

Just days before sentencing, lawyers for Conrad Murray want a judge to order independent testing of a vial of the powerful anestethic propofol.

Attorney J. Michael Flanagan wrote in a court filing that the testing is necessary to analyze the prosecution theory that Murray placed Jackson on an IV drip of propofol and the painkiller lidocaine then left the room.

Prosecution expert Dr. Steven Shafer testified during the six-week trial of Murray that the only plausible scenario to explain Jackson’s death was that Murray left him on the IV drip.

Dr. Shafer said he ruled out all other scenarios, including the defense theory that Jackson somehow gave himself the fatal dose of the anesthetic being used as a sleep aid.

The chemical makeup of the propofol vial “has become relevant to confirm or negate the accuracy of Dr. Shafer’s proposed scenario,” Flanagan wrote.

Publicists for Murray and his lawyers say the results may form the basis of an appeal.

Prosecutors and Flanagan were expected to argue about the request during an 11 a.m. hearing.

Murray was convicted on November 7 of involuntary manslaughter. He remains jailed while awaiting sentencing on November 29.

Update

Los Angeles Superior Court Judge Michael Pastor denied a request Monday by lawyers for Murray to have an independent laboratory test the contents of a key vial of evidence.

Just days before the scheduled sentencing of Conrad Murray, Superior Court Judge Michael Pastor said defense attorneys could have sought the testing months ago or even during the doctor's six-week trial but chose not to.

"You're not involved in fishing, you're involved in foraging," Pastor said.

Defense lawyer J. Michael Flanagan argued the results would reveal the accuracy of a theory by a prosecution expert who testified that Murray left Jackson's bedside while the singer was on an IV drip of propofol and the painkiller lidocaine.

Murray had been giving Jackson nightly doses of propofol to help him sleep.

Deputy District Attorney David Walgren contended there was no legal basis for the testing and said Murray received a fair trial.

Pastor examined the propofol vial, which was found in the closet of Jackson's bedroom, before issuing his ruling.

Flanagan said it didn't occur to him that the contents of the vial should be tested until after the conclusion of Murray's trial, which ended Nov. 7 with his conviction on the involuntary manslaughter charge.

Flanagan said if prosecution expert Dr. Steven Shafer's theory is correct, the small amount of liquid that remained in the vial should contain lidocaine. In that case, "that's the ballgame" and would prove Murray did leave the singer alone on an IV drip, Flanagan said.

Flanagan also argued that Dr. Shafer didn't tell jurors that he believed Murray injected lidocaine into the propofol vial until Dr. Shafer was called as a rebuttal witness in the final moments of testimony.

Walgren said Dr. Shafer and other witnesses acknowledged that they didn't know exactly what happened in Jackson's bedroom on June 25, 2009. Dr. Shafer was one of several experts who told jurors that he could only theorize on events based on toxicology results, Murray's statements to police and evidence found at the scene.

"Whether there was lidocaine in that bottle or not is completely irrelevant," Walgren said.

Murray is set to be sentenced on Nov. 29. Walgren said he is finalizing work on a sentencing memorandum and several people may speak during the hearing. He did not say whether members of Jackson's family, several of whom attended the trial daily, would offer statements.

MJFS - Ap