Many fans were upset when Michael Jackson's doctor, Conrad Murray, wasn't charged with murder.  After hearing a preview of the evidence in yesterday's opening statements, it seems clear why Dr. Murray is not facing a murder charge.

Murder in California requires that the killer acted with a state of mind called "malice aforethought," which is generally referred to simply as malice.  Malice may be either express or implied.  

Express malice is where the defendant intended to kill.  There is no evidence that Dr. Murray intended to kill Michael Jackson.  Indeed, it appears that Michael Jackson's death cost Dr. Murray a lucrative contract of $150,000 per month to be Michael Jackson's personal physician.  Dr. Murray thus had every incentive to keep Michael Jackson alive.

Implied malice occurs when:  1) the defendant intentionally committed an act, the natural consequences of which were dangerous to human life, 2) at the time he acted, he knew the act was dangerous to human life, and 3) he did the act with a conscious disregard for human life.

There is a stronger case for implied malice than express malice here.  The combination and amount of drugs found in Michael Jackson's system have been described as extraordinarily high.  However, if Michael Jackson was an addict who had developed a high tolerance for these medications, and if Dr. Murray had been giving Michael Jackson similar doses in the months prior to his death without issue, he would have a strong argument that he did not act with a conscious disregard for human life.  Similarly, if Dr. Murray was attempting to wean Michael Jackson off the more dangerous drugs, like Propofol, as he claims, he could argue that he was not acting with a conscious disregard for human life. 

However, such arguments will have a harder time overcoming the "criminal negligence" standard for involuntary manslaughter.  (See posts from yesterday and the day before for more information on criminal negligence and involuntary manslaughter.) 

Sometimes overcharging a case can backfire and lead to an acquittal (like some suggest happened in the Casey Anthony case).  The DA's office likely charged conservatively to have a better chance of success, and the charge of involuntary manslaughter is really a better fit for the evidence here (as discussed yesterday). 

The prosecution completed its opening statement in the trial of Michael Jackson's doctor, Dr. Conrad Murray.  The prosecution alleges that Dr. Murray is guilty of involuntary manslaughter because he breached a duty of care to Michael Jackson.

A person may be convicted of involuntary manslaughter based on the failure to perform a legal duty owed to the victim.  Under this theory, the prosecution must prove:  1) Dr. Murray owed a legal duty to Michael Jackson; 2) Dr. Murray failed to perform that duty; 3) Dr. Murray's failure to perform that duty was criminally negligent; and 4) Dr. Murray's failure to perform that duty caused Michael Jackson's death.

I discussed the concept of criminal negligence at length here yesterday.

The prosecutor identified numerous acts and omissions (failure to act) that qualified as Dr. Murray breaching his duty of care as Michael Jackson's doctor:
* Michael Jackson's home was an improper setting for using Propofol, which is intended for use in hospital surgery rooms
* Using Propofol to treat insomnia, when it was intended as a general anesthetic
* Failure to properly continually monitor Michael Jackson's vitals, as required with Propofol
* Administering Propofol without resuscitation equipment available
* Failure to maintain constant visual monitoring and presence, as required with Propofol
* Administering benzodiazepines combined with Propofol, which heightens its dangers
* Failure to provide and receive informed written consent for medical procedures
* Failure to chart and document what was administered
* Failure to call 911 immediately upon finding Michael Jackson unresponsive
* Abandoning the doctor-patient relationship, where the doctor is in charge of care and refuses inappropriate treatment, in favor of an employer-employee relationship
* Deceiving the paramedics and ER doctors, by refusing to tell them of his administration of Propofol when asked what he had given Michael Jackson

The prosecution asserted that each of these breaches of care was an "extreme deviation" of the standard of care expected of a medical doctor. 

Opening statements in the trial of Michael Jackson's doctor, Dr. Conrad Murray, begins tomorrow.  He has been charged with involuntary manslaughter in Michael Jackson's death.  This begs the question, what is involuntary manslaughter?

Michael Jackson died of an overdose of an anesthetic called propofol with other medications.  Dr. Murray had given Jackson propofol and other drugs to help him sleep.  Dr Murray was supposed to be monitoring Jackson while he slept.  Propofol is not usually used as a sleep aid, but as an anesthetic during surgery.

In California, a person commits involuntary manslaughter when he does something that is a misdemeanor or is a lawful act done in an unlawful manner.  The person must have committed the act with criminal negligence.  Finally, the person's act must have caused a death.

"Criminal negligence" is a key component of involuntary manslaughter.  A person acts with criminal negligence, when he acts with something more than ordinary carelessness, inattention, or mistake in judgment.  Criminal negligence is when a person acts recklessly, creating a high risk of death or great bodily injury.  The jury must also find that a reasonable person would have known that the act done would create such a risk.

Criminal negligence is also described as acting so different from how an ordinarily careful person would act in the same situation that it amounts to disregard for human life or indifference to the consequences of his act.

Sometimes it is unclear if the person's act actually caused the death.  An act causes death if the death is the "direct, natural, and probable consequence" of the act, and the death would not have happened without the act.  A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual interferes. 

The prosecution here thus has to prove that Dr. Murray committed an act that was criminally negligent and caused Michael Jackson's death. 

A common question people ask is what is the difference between murder and manslaughter?  The definitions of these crimes vary somewhat from state to state, but a recent California trial provides a good example for generally understanding what constitutes murder versus voluntary manslaughter.

A 14 year old eighth grader shot and killed an openly gay 15 year old classmate.  Evidence showed Larry King had worn high heels and makeup to school, and that he often teased Brandon McInerney.  McInerney brought a gun to school and shot King twice in the back of the head while they were in English class.  He had told a friend the day before that he planned to bring a gun to school the next day.

McInerney was tried as an adult.  The prosecution theory was that this was a first-degree murder, planned, contemplated and discussed in advance, and carried out with conscious intent to kill.  The defense presented the case of an overwhelmed child who felt sexually harassed by the gay teen's unwanted attention and snapped.  There was no dispute that McInerney pulled the trigger.  The only question was his state of mind.

Murder in California is a killing with malice aforethought.  Malice is found when the defendant intended to kill.  If a murder is committed with premeditation and deliberation, it is first-degree murder.  (There are other ways of elevating a murder from second to first degree, but they aren't relevant here.)

A murder can be reduced to voluntary manslaughter if the person acted in the heat of passion.  A killing in the heat of passion requires 1) that the defendant was provoked, 2) that the provocation caused the defendant to act rashly and under the influence of intense emotion that obscured his judgment and reasoning, and 3) the provocation would have caused the average person to act rashly.  In other words, the defendant was so provoked by what the victim did, and reasonably so, that he acted out of intense emotion rather than deliberate judgment.

The jury was unable to make a decision in this case, and a mistrial was declared.  McInerney will have to be tried again.  The jury simply could not decide whether McInerney acted deliberately or in the heat of passion.

UPDATE 11/21/11:  McInerney pled guilty to second-degree murder and voluntary manslaughter, accepting a sentence of 21 years in prison, and avoiding a second trial.

For more about the differences between murder and manslaughter, check out the Resources section.