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  Prosecutors from the Los Angeles County, Calif., District Attorney’s office provided the first glimpse of their criminal case on Tuesday against Dr. Conrad Murray, who faces charges that his actions in June 2009 contributed to the death of pop star Michael Jackson.   Unlike most cases against doctors of celebrities, Murray is not accused of crimes relating to the prescriptions he wrote for his patient, according to Ellyn Garofalo, a partner at Los Angeles-based Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor.   Garofalo represented Dr. Sandeep Kapoor, who was acquitted of illegally providing prescriptions to Anna Nicole Smith before she died of a drug overdose in 2007. Two other defendants in that case, psychiatrist Khristine Eroshevich and Smith’s attorney, Howard K. Stern, are scheduled to be sentenced on Thursday on charges of writing prescriptions using false names.   Garofalo told The National Law Journal that the Murray case could be much more clear-cut than the Smith matter, but that prosecutors still face a high burden of proof.   NLJ: What was your first impression of the government’s case that was outlined on Tuesday?   E.G.: It’s an odd case. It’s different from our case because it’s not an over-prescribing case. It’s a murder case. What really surprised me is that in the opening statement they started to talk about the deviation from the standard of care. Generally, that’s a negligence theory. That was a big issue in our case. We were successful in arguing standard of care is inapplicable in a criminal case. Where do you draw the line? That a doctor’s medical judgment was so bad that he engaged in criminal conduct? It’s really tough. They said my client, in the Anna Nicole Smith case, gave her more medication than other doctors would have, that he deviated from a standard of practice. How much propofol Murray may have given Jackson is a medical judgment. The D.A. might think it’s bad medicine, but if he believed in good faith that’s how to treat this patient, should that be criminal?    NLJ: So what do prosecutors in the Murray case have to prove?   E.G.: They have to show that something Murray did caused Jackson’s death. It sounds like the autopsy report shows propofol killed him. They have to show Murray administered the propofol that killed him, and that with that act, although it was lawful to administer propofol, Murray should have known it could have resulted in Jackson’s death, or that Murray didn’t exercise due caution in using the drug.    NLJ: What appeared on Tuesday to be the government’s strongest arguments?   E.G.: The fact that he’s using a drug that is not ordinarily administered outside a hospital setting for purposes for which it’s rarely used is a bad fact. If — and I don’t know the evidence — he did leave the room while Michael Jackson was being given the drug, I think that’s a bad fact. And then if the papers are correct and he waited 21 minutes to call 911, that’s a bad fact. On the other hand, if Michael Jackson already was dead, waiting 21 minutes didn’t kill him. If there’s evidence that in that 21 minutes Michael Jackson might have been revived, that’s going to be a very bad fact. They’re also arguing Murray didn’t do proper CPR.   NLJ: This is a preliminary hearing, not a trial. What does that mean exactly?   E.G.: A preliminary hearing is a probable cause hearing. They have to show a reasonable suspicion that a crime was committed. It’s a very, very low standard. Any evidence a crime was committed is enough for the judge to bind the case over for trial. It is very, very rare that a judge finds there’s not at least a reasonable suspicion that a crime’s been committed.    NLJ: What is different between your case and the Murray case?    E.G.: Firstly, you had a death involved. In our case, although she died, that was not part of the criminal case because she didn’t die here. In the Murray case, you don’t have a prescribing issue because he didn’t prescribe anything. That drug is not a prescription drug. There are no prescribing charges in this case, and that makes it different from an ordinary celebrity case. It’s a much simpler case, in some ways, than ours was because our case involved a whole host of statues that had never been litigated — areas where there is no law. This is really a more typical criminal case, in that everybody knows what the statute is, and this will be based on the evidence and the facts.    NLJ: Your case involved two doctors, one of whom you represented. Why was your client acquitted, but the other doctor was found guilty of prescribing drugs using a false name?   E.G.: My client was Anna Nicole Smith’s doctor for years. He inherited her when he bought the practice. The file he inherited was in the name of Michelle Chase. And my doctor continued to use the name used by the doctor before him. He used only one pharmacy, only one name. The jury found there was no intent to deceive anybody. The other doctor used multiple names and multiple pharmacies. The jury didn’t talk to anyone, but that was indicative of some intent to deceive.    NLJ: Thursday is the sentencing hearing for the other doctor and Howard Stern. What’s your prediction?    E.G.: I anticipate that the sentences will be probation, no jail sentences. The judge may reduce the charges or the crimes from felonies to misdemeanors. The few convictions were false name statutes. There were no convictions on the prescribing side.   [Los Angeles prosecutors have recommended supervised probation for both defendants, but has asked that the convictions remain felonies, according to a Jan. 4 sentencing memorandum filed in the case].   NLJ: We seem to be seeing a lot of criminal cases against doctors with celebrity clients. Is this a growing trend?   E.G.: You’ll see less of them. Even though the D.A.’s office says they’re happy with the result in our case, they didn’t get any convictions on the prescribing charges. Historically, these cases are difficult to prove. Elvis’s doctor was acquitted. Doctors have medical reasons for doing what they do. Even where celebrities have overdosed, there have been very few prosecutions and very few convictions. According to news reports, in the Michael Jackson case there were doctors writing unbelievable amounts of prescriptions over the years, and they haven’t charged those people.   Amanda Bronstad can be contacted at [email protected] .  

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