A defense lawyer in the trial of Michael Jackson's doctor disclosed in court Friday that he knew months before trial that a theory that the singer drank a fatal dose of the anesthetic propofol would have to be abandoned.
Defense attorney J. Michael Flanagan, who represents Dr. Conrad Murray in the involuntary manslaughter case, made the statement without the jury present.
The idea of Jackson orally giving himself the fatal dose was long touted by defense attorneys as a centerpiece of their case. Documents had been filed and arguments heard about studies on the issue.
The attorneys have even referred to a fruit juice jar found on Jackson's bedside table, suggesting he had taken the drug with juice.
Flanagan initially dropped the bombshell Wednesday that the defense was abandoning the strategy.
"We are not going to assert at any point in this trial that Michael Jackson at any time orally ingested propofol," said Flanagan, who revealed he had commissioned a study that concluded propofol would not be absorbed into the body when ingested.
But he did not say when the study had been done.
Prosecutors and the judge appeared stunned at the announcement
At Friday's hearing, on a day when testimony was not heard, Deputy District Attorney David Walgren told the judge, "We are dealing with an ever-changing defense. It was just a couple of days ago they abandoned oral propofol."
"Oh, your honor, that is not correct," Flanagan said.
"No?' Walgren asked incredulously.
"We abandoned oral propofol months ago," said Flanagan, saying they were swayed by a report from the leading expert on the drug, who is expected to testify for the prosecution next week.
He said Dr. Steven Shafer had questioned "the bioavailability of oral propofol," meaning whether it would be absorbed into the body if swallowed.
Flanagan said the defense decided to have its own study conducted and, "We determined back in May that bioavailability of oral propofol was not feasible."
Superior Court Judge Michael Pastor said he had never been advised in advance that the theory would be dropped. He said he would not be dealing with Walgren's claims of an ever-changing defense.
"I don't have to go there," he said. "It is what it is right now."
Murray was not in court for the hearing. He has pleaded not guilty to involuntary manslaughter in the June 2009 death of the superstar from an overdose of propofol.
Flanagan's disclosure offered a backstage look at possible defense gamesmanship in leading prosecutors to prepare to answer a defense theory that would never be presented.
A defense attorney not involved in the case said it is not an ethical or legal obligation of the defense to keep the prosecution posted on its strategies.
"I don't personally see a violation," said attorney Thomas Mesereau Jr. "You're supposed to operate in good faith, but you don't have to tell them every little strategy you intend to employ ... . Maybe this defense team was debating whether to use the issue up to the end."
In opening statements, defense attorney Edward Chernoff told the jury he would allege that Jackson self-administered drugs but did not specifically mention oral ingestion of propofol.
In other developments, the prosecution said its last witness will be Shafer and his testimony could take a day. The defense said it would call 15 witnesses including police officers, experts and some character witnesses. Attorney Nareg Gourjian estimated that would consume the rest of next week.