By Thomas M. O’Toole, Ph.D.
Jury deliberations began yesterday afternoon in the Michael Jackson wrongful death case after about five months of trial. According to media reports, jurors heard from 58 witnesses over the course of trial. The number of trial exhibits does not appear to be reported anywhere, but one can presume the number is in the hundreds, if not thousands. And then of course, there are the jury instructions. There were over 60 pages of jury instructions read to jurors at the close of the trial. So the question is, after over five months of a constant bombardment of information, what narrative will jurors craft in the deliberation room and how will this shape the way they make sense of the evidence, testimony, and jury instructions? Additionally, in light of the damaging emails by AEG executives, what narrative can defense advocates push in deliberations to potentially drive a defense verdict?
Theme development and story provide what psychological experts might refer to as “a peripheral route” to persuasion. To momentarily venture off into the obscure world of academia, a 50 year-old theory of persuasion called “elaboration likelihood model” says people are persuaded in 1 of 2 ways: through the “central route” in which they engage the substance of the message and consider its merit; or through the “peripheral route” in which they use a peripheral cue to draw conclusions about the substantive message rather then evaluate the substantive message itself. In short, the central route is where someone buys Cheerios because they are nutritious and affordable whereas, with the peripheral route, someone buys Cheerios because Michael Jordan is on the box cover.
Theme development and story constitute the peripheral route because they are means by which jurors can sidestep the overwhelming amount of complex information at trial and the sometimes convoluted framework through which the jury instructions imply they need to decide the case. They paint a picture of what jurors want to believe (by spinning narratives that tap into core human principles) and rely the common reality of the human experience to do the rest: seek out the facts and testimony that support what they want to believe while ignoring or discounting that which does not support what they want to believe. This is sometimes referred to as “motivated reasoning.”
So to determine which narratives might emerge and take control of the deliberative environment in the Jackson v. AEG trial, it makes sense by looking at what each side wants them to believe. Each side has a relatively simple story. The Jackson family’s story is that AEG is a corporate Goliath that saw Michael Jackson as an object they could manipulate to maximize their profits. They acknowledge the King of Pop had is own demons, but argue it was all under control until AEG forced Jackson to stop seeing his own physician and instead rely on AEG’s hired gun, Dr. Murray, a doctor who only made money if Jackson continued with his preparations for the “This is It” tour. Elaborating on the notion that a verdict is a product of what jurors choose to talk about, this strategy means AEG and its key people, mainly Randy Phillips, should be the focus. Randy Phillips is an ideal focus because he appeared to be the author of the vast majority of the “bad” emails for AEG. If I’m consulting for the Jackson family, Phillips and his emails are the centerpiece of the case because they represent the type of behavior and attitudes that can infuriate a jury and motivate them to “want to send a message.” As a consultant, I would encourage the plaintiffs to get those emails in front of jurors at every opportunity.
The real challenge in this case is for the defense. Not to suggest the plaintiffs have it easy, but they have a case theory that is more naturally compelling for most jurors. It taps into common beliefs and has documents to fuel that focus. Often, this creates a “reverse burden of proof” for defendants.
AEG’s theory appears to be that Michael Jackson was a fallen celebrity embroiled in a cocktail of drug addictions…that his death was inevitable due to his own personal choices that would have been made regardless of whether or not AEG was involved. This is a risky endeavor since Jackson was a beloved pop-start to many and even the critical media portrayals of him in recent decades cast him as more of a child-like, victim personality. Despite the apparent strength of Jackson’s story and the “smoking gun” emails that appear to support their narrative, there appear to be a variety of opportunities for defense advocates to control the momentum of the deliberations.
First, defense advocates need to successfully sell Dr. Murray as a rogue. The story of his desperate financial situation, apparently unknown to AEG, provides an easy-to-believe motive to practice dangerous medicine, particularly in light of the amount of money Murray was making in the Jackson deal. It allows AEG to argue a point in which their goals and Murray’s goals diverged. AEG can argue they wanted Murray to do everything possible to keep Jackson healthy so that he could complete the tour, but Murray simply took this too far. Additionally, this gives AEG a potential out even if the jury concludes that AEG hired Murray. Defense advocates could argue, while AEG technically hired Murray, Jackson had a history with Murray and likely played a significant role in his hiring. Essentially, this could result in a wash on this issue and at least put downward pressure on jurors to want to punish AEG simply for hiring Murray.
Second, there’s an immediate opportunity to turn a weakness in to a strength. The Jackson family has made this a story about money. However, AEG profits most if Jackson is healthy and completes the tour. This creates an opportunity for defense advocates to argue in the deliberation room that AEG had every motivation to want to get Jackson healthy. In other words, if plaintiff is correct that all AEG cared about was its profits, the best way to maximize its profits was to keep Jackson healthy enough to complete the tour. There appears to be evidence to support this theory in the record. Despite the “smoking gun” emails that naturally draw the most attention, there were enough AEG internal emails expressing concern over Jackson’s wellbeing to at least buttress the argument that AEG’s financial motivation is to keep Jackson healthy.
Third, defense advocates need to focus jurors on the catch-22 the plaintiffs’ theory of the case places AEG in. On the one hand, the family argues AEG used the constant threat of cancellation of the tour to scare Jackson into line. On the other hand, the implicit theory seems to be that AEG should not have forced Jackson into a situation where he was taking pharmaceutical cocktails that risked his life. Together, it’s unclear what path AEG could have taken. This creates an opportunity for defense advocates to shift focus to Jackson. They can argue that AEG threatened to cancel the shows unless Jackson committed to getting healthy and that it was ultimately Jackson who, pressured by his own financial situation, chose the path that put himself in danger.
Finally, a key factor that will determine the verdict is how jurors choose to think and talk about Michael Jackson. AEG needs jurors to see Jackson as a responsible adult who had a pattern of dangerous decision-making that predated any involvement by AEG. Historical media coverage of Jackson’s problems could make this a natural perception for some jurors, but those jurors were likely weeded out during the jury selection process if plaintiffs did their job. Defense advocates need to reduce the plaintiff’s theory to an argument that AEG should have protected Jackson from himself. This taps into a core principle that is widely held by many. There is a large portion of the population, for example, that gets tired of arguments that amount to suggesting the government needs to protect people from themselves. It’s a matter of persona responsibility and we know from decades of jury research that personal responsibility is a strong driver of defense verdicts.
Needless to say, it will be interesting to see where the jury lands. Given the number of claims they must determine and the spectrum of evidence supporting and refuting each claim, some horse-trading should be expected. It is incredibly difficult for advocates to maintain the motivation, energy, and motivation in a case like this (with so many issues to be decided) during deliberations in order to deliver a verdict that amounts to a clean win for either party.
