By Alan Duke, CNN
LOS ANGELES (CNN) — Every issue in the Michael Jackson wrongful death trial is so disputed that even giving candy to jurors caused an argument.
AEG lawyers gave a bag of peppermint patty candy to the bailiff to hand out to the jury this week. Even Katherine Jackson — the pop icon’s mother — enjoyed the treat.
But Jackson’s lawyer raised an objection Tuesday afternoon, suggesting jurors might be influenced if they realized the source of the sweets.
A compromise was reached. Each side can provide snacks for jurors, but they’ll be placed at the bailiff’s desk before jurors enter court so they have no clue who brought it.
While the candy controversy might seem trivial, the stakes are high for AEG Live. The promoter and producer of Michael Jackson’s comeback concerts could be found liable for billions of dollars in damages if the jury decides the company is responsible for the star’ death.
Jackson’s mother and three children are suing AEG Live for the negligent hiring, retention or supervision of Dr. Conrad Murray, the physician convicted of involuntary manslaughter in his death.
The candy argument may be the most interesting thing about Tuesday’s proceedings, unless you are a student of employment law and budgeting.
AEG Live Senior Vice President/General Counsel Shawn Trell was on the stand for a second day hoping to give testimony that would convince the jury that Murray was chosen, hired and supervised by Jackson — not his company.
Murray never had an executed contract with AEG Live, although one had been negotiated. The doctor signed it and returned it to the company on June 24, 2009, but the AEG Live executive decided not to sign it after Jackson died the next day.
Jackson lawyers contend Murray was already on the job, working under an oral agreement confirmed by a series of e-mails that promised him $150,000 a month to be Jackson’s full-time physician.
With Trell on the stand, Jackson lawyer Brian Panish played part of an interview that AEG Live President Randy Phillips gave to Sky News television soon after Jackson’s death.
“This guy was willing to leave his practice for a very large sum of money, so we hired him,” Phillips said.
Panish also showed jurors an e-mail between AEG lawyers suggesting that Phillips told other interviewers AEG Live “hired” Murray.
Trouble at the Front
The Jackson lawyers argue that AEG Live executives ignored a series of “red flags” that should have alerted them that Jackson needed help as he prepared for his comeback concerts.
Earlier testimony from Jackson’s make up artist, choreographer and an associate director described his failing health and mental condition in the last two weeks of his life.
Panish asked Trell about e-mails titled “trouble at the Front” between AEG executives and people working on the production starting on June 19, 2009 — a night that show director Kenny Ortega sent Jackson home because of his strange behavior.
“He was a basket case and Kenny was concerned he would embarrass himself on stage, or worse yet — get hurt,” production director John “Bugsy” Houghdahl wrote to AEG Live top execs Randy Phillips and Paul Gongaware. “The company is rehearsing right now, but the DOUBT is pervasive.”
Phillips forwarded the e-mail to his boss — Tim Leiweke — at AEG Live’s parent company, with the comment: “We have a real problem here.”
Jackson had missed a number of rehearsals and the “This Is It” tour debut was just three weeks away in London.
Ortega, in an e-mail previously reported, told Phillips that same morning — five days before Jackson died — that he did not think he would be ready for the shows.
“I honestly don’t think he is ready for this based on his continued physical weakening and deepening emotional state,” he wrote. Ortega described seeing “strong signs of paranoia, anxiety and obsessive-like behavior” with Jackson. “I think the very best thing we can do is get a top psychiatrist to evaluate him ASAP.”
Even John Branca, a former Jackson advisor and lawyer who had just been rehired, weighed in with advice in an e-mail: “I have the right therapist/spiritual advisor/substance abuse counselor who could help (recently helped mike tyson get sober and paroled) … do we know whether there this is a substance issued involved (perhaps better discussed on the phone.)”
Does Trell consider that exchange a “red flag” that AEG Live should have noticed, Panish asked.
“I would take it seriously, as I believe Mr. Phillips did,” Trell answered. “I don’t know I would use the word ‘red flag.’”
Phillip called a meeting the next afternoon with Murray at Jackson’s home.
Afterward, he sent this e-mail to Ortega:
“Kenny, it is critical that neither you, me, or anyone around this show become amateur psychologists or physicians. I had a lengthy conversation with Dr. Murray, who I am gaining immense respect for as I get to deal with him more. He said that Michael is not only physically equipped to perform and that discouraging him to, will hasten his decline instead of stopping it. Dr. Murray also reiterated that he is mentally able to and was speaking to me from the house where he had spent the morning with MJ. This doctor is extremely successful (we check everyone out) and does not need this gig so he totally unbiased and ethical.”
The Jacksons’ lawyer called this e-mail “a flat out lie,” since AEG Live had not done a background check on Murray before hiring him — and if they had it would have disclosed that he was in deep debt and not a successful doctor.
“We did not do a background or credit check on Dr. Murray,” Trell conceded.
No due diligence
The Jackson lawyers contend that AEG Live is liable for his death because they did not do their “due diligence” by checking Murray’s background and credentials.
If they had done so, they would have realized that Murray had a major conflict of interest that made him vulnerable to break rules in his treatment if Michael Jackson, they argue.
Murray needed the high-paying job because he was more than $1 million in debt, his home was being foreclosed on, he was being sued for unpaid child support and delinquent taxes, and his cardiology clinic in Las Vegas faced eviction. His $150,000 a month job would end if Jackson’s shows were canceled or delayed, according to the terms of his contract.
AEG Live failed to conduct the background check, which the company’s own expert witness said would between cost between $40 and $125.
“I am not familiar with the process of doing background checks,” Trell said. “No training.”
Trell is back on the witness stand Wednesday for questioning by AEG Live lawyer Jessica Stebbins Bina.
The trial, which is in its fourth week in a Los Angeles courtroom, is expected to last through July.
