I think they still plan to put the State's ME on the stand. But yes they had a lot of 'paid' witnesses on the stand. The difference yesterday is that they actually did right by the prosecution. The prior 8 days the defense ate them up.
Floyd-Chauvin Case - what's your thought on the outcome
- Thread starter rog1187
- Start date
State ME on the stand today.
Dr. Andrew Baker, the Hennepin County chief medical examiner, is expected to testify today. This comes after a day of medical testimony yesterday that may have rescued a flailing prosecution. I still don’t understand how Dr. Martin Tobin was permitted to testify to his hocus-pocus precise oxygen calculations based on video review. Is this a methodology accepted in the medical community? What is his background as an attending physician would allow him to make such conclusions not only as to oxygen level but to cause of death? In my opinion, his testimony was devastating to the defense. I don’t understand how defense counsel Nelson didn’t fight it harder.
Also, note that the prosecution changed approach. The first eight days were spent trying to convince the jury that pressure to the carotid artery due to the ‘knee on the neck’ cut off blood flow to the brain causing Floyd to stop breathing. But Tobin said it was how Floyd was restrained on the ground that made it hard for him to inhale. You can’t have it both ways, but apparently the prosecution is trying to do that.
Dr. Andrew Baker, the Hennepin County chief medical examiner, is expected to testify today. This comes after a day of medical testimony yesterday that may have rescued a flailing prosecution. I still don’t understand how Dr. Martin Tobin was permitted to testify to his hocus-pocus precise oxygen calculations based on video review. Is this a methodology accepted in the medical community? What is his background as an attending physician would allow him to make such conclusions not only as to oxygen level but to cause of death? In my opinion, his testimony was devastating to the defense. I don’t understand how defense counsel Nelson didn’t fight it harder.
Also, note that the prosecution changed approach. The first eight days were spent trying to convince the jury that pressure to the carotid artery due to the ‘knee on the neck’ cut off blood flow to the brain causing Floyd to stop breathing. But Tobin said it was how Floyd was restrained on the ground that made it hard for him to inhale. You can’t have it both ways, but apparently the prosecution is trying to do that.
I’m not an attorney, clearly. The Defense was underprepared for yesterday in my opinion from previous days.
State ME testimony from today:
- "There's nothing in autopsy that shows low oxygen" - no test for low oxygen at autopsy. "No physical findings that show low oxygen" in autopsy reports
- death certificate doesn't use words asphyxia or low oxygen as cause of death. She would not have used that term here (huh?)
I think he's doing it by himself. I'm not sure there would have been much he could have countered with on cross examination. His time to battle their testimony will be during the defense phase. It'll be their opinion versus the defenses opinion. It'll be interesting to see how the ME does on cross today.
The experts are bad witnesses for the defense. Get them off the stand as fast as you can without a bunch of drama in front of the jury. You will never get an expert to change their mind at trial regardless of the facts. I have presented facts previously unknown to an expert at trial which render their opinion impossible and they still don't admit being wrong (they should post here on the blue lot, lol). Too much ego.
Get them off the stand then you bring your experts to state how there is no way that MD could determine the oxygen levels and they aren't the typical state ME, ie, hired guns. This approach prevents the expert from explaining away any discrepancies or problems with their testimony because they are long gone. Just like the neck. Don't correct the expert on the stand that there was no neck compression. That gives them the opportunity to say chest and neck compressions have identical results. Bank those facts and argue them to the jury later on. Too many lawyers play the gotcha game with witnesses and it bites them in the ass every time.
All the defense needs to do is show he cold have died from fentanyl and at the end of the day there will be a couple doctors who says yes, and a couple who say no. Typically, I'd take those odds 100 out of 100 times but in this case, minds are already made up.
I'd ask them if they had to choose - would they take 3 times the lethal dose of fetanyl or would they let someone put their knee on their neck area for 8.5 minutes
Summary from Day 10
In the case of both Thomas and Baker, there was a common pattern in the nature of their testimony. On direct questioning by Prosecutor Blackwell they would both say the magic words they certainly knew the state needed them to say on the witness stand—in effect, and perhaps even literally word-for-word—they identified the primary cause of George Floyd’s death as asphyxia complicated by law enforcement subdual restraint and neck compression.
When asked on direct if any of the other notable factors everyone knew the defense would raise on cross—the existing cardiovascular disease with 75% to 90% occlusion of all three major coronary arteries, the hypertension-induced enlarged heart, the presence of fentanyl and methamphetamine in Floyd’s system, the adrenaline induced by Floyd’s poorly made decision to fight four police officers for 10 minutes—could any of that have been the cause of Floyd’s death.
The answer was a flat no, period. Floyd’s death could only be attributable to asphyxia complicated by law enforcement subdual restraint and neck compression.
On cross examination, however, both Thomas and Baker agreed that every single one of those factors, by themselves, even in the absence of any police involvement, or any of the other factors, if viewed in isolation could be an entirely reasonable cause of death for an official death certificate. (I’m amalgamating the responses of both Thomas and Baker, as they were so similar—video of their individual cross-examination testimony is embedded below for those wishing a more granular sense of what each said.)
In other words, had Floyd been found dead at home and autopsy revealed the 75% to 90% occlusion of his three major coronary arteries, would it have been reasonable for a medical examiner to attribute cause of death to that heart condition? Yes.
You’ve signed thousands of death certificates listing cause of death as atherosclerotic disease in patients with similar levels of occlusion as Floyd? Yes.
You’ve signed death certificates listing cause of death as hypertensive cardiomegalopathy in patients have a similar degree of enlarged heart as Floyd? Yes.
Did you tell investigators when interviewed that cardiovascular disease was a significant contributo rto Floyd’s death? Yes.
If Floyd had been found dead at home, and toxicology had revealed 11 ng/ml of fentanyl in his system, would it have been reasonable for a medical examiner to attribute cause of death to fentanyl overdose? Yes.
Have you signed death certificates as overdose deaths in cases where fentanyl levels were at 11 ng/ml? Yes. Below 11 ng/ml? Yes. As low as 3 ng/ml? Yes.
Would the presence of a combination of drugs, like fentanyl and methamphetamine, make overdose a more likely cause of death? Yes.
Could asphyxia of the heart be induced by methamphetamine creating a higher demand for oxygen by the heart than Floyd’s body could deliver? Yes.
However low the level of methamphetamine in Floyd’s system, is there any level which is safe? No. Would you recommend methamphetamine or even prescription amphetamine for a patient with Floyd’s cardiac status? No.
Would this the demand for oxygen of Floyd’s heart, and the inability of his body to deliver on that demand, be worsened by adrenaline resulting from Floyd’s physical confrontation with the officers? Yes.
So, even if we don’t consider Floyd’s exertion in fighting police, take the police out of the question entirely , pretend there was no impact made by the illicit drugs in Floyd’s system, a reasonable call on cause of death was simply Floyd’s existing cardiovascular disease and hypertension? Yes.
What percentage of restriction of the coronary arteries would be potentially fatal? 70% to 90%. What was the restriction of the coronary arteries in Floyd’s heart? 75% to 90%. Does a 90% stenosis of a carotid artery limit blood to the heart? Yes. Does adrenaline increase the heart’s demand for blood? Yes. Does meth increase demand for blood? Yes.
Was there any bruising to the back of Floyd’s neck or back? No. Either on the surface or even deeper in the tissues? No. Would a knee and shin applied with substantial force be expected to cause a bruise? Yes, would be expected, but absence of bruising doesn’t mean it didn’t happen. That’s true of course, but one does not get to guilt beyond a reasonable doubt based on explaining away an absence of evidence.
On cross-examination Baker was also specifically asked by Nelson if the prone position was inherently dangerous? His answer was that according to his understanding of medical literature, it was not.
Did it appear to Dr. Baker, based on autopsy, review of all videos, and every other piece of evidence made available to him, that Chauvin’s knee ever occluded Floyd’s carotid artery? It did not.
But even if it had, noted Baker, it would have done so to only the carotid artery on that side of the body, and the non-occluded artery would have continued to carry blood to the brain.
So much for the testimony of the state’s MMA expert bystander witness Williams who had testified under oath that a “blood choke” could be effectively applied by the knee to merely one side of the neck.
Would the placement of Chauvin’s knee have been able anatomically to cut off Floyd’s airway? It would not, answered Baker.
In the case of both Thomas and Baker, there was a common pattern in the nature of their testimony. On direct questioning by Prosecutor Blackwell they would both say the magic words they certainly knew the state needed them to say on the witness stand—in effect, and perhaps even literally word-for-word—they identified the primary cause of George Floyd’s death as asphyxia complicated by law enforcement subdual restraint and neck compression.
When asked on direct if any of the other notable factors everyone knew the defense would raise on cross—the existing cardiovascular disease with 75% to 90% occlusion of all three major coronary arteries, the hypertension-induced enlarged heart, the presence of fentanyl and methamphetamine in Floyd’s system, the adrenaline induced by Floyd’s poorly made decision to fight four police officers for 10 minutes—could any of that have been the cause of Floyd’s death.
The answer was a flat no, period. Floyd’s death could only be attributable to asphyxia complicated by law enforcement subdual restraint and neck compression.
On cross examination, however, both Thomas and Baker agreed that every single one of those factors, by themselves, even in the absence of any police involvement, or any of the other factors, if viewed in isolation could be an entirely reasonable cause of death for an official death certificate. (I’m amalgamating the responses of both Thomas and Baker, as they were so similar—video of their individual cross-examination testimony is embedded below for those wishing a more granular sense of what each said.)
In other words, had Floyd been found dead at home and autopsy revealed the 75% to 90% occlusion of his three major coronary arteries, would it have been reasonable for a medical examiner to attribute cause of death to that heart condition? Yes.
You’ve signed thousands of death certificates listing cause of death as atherosclerotic disease in patients with similar levels of occlusion as Floyd? Yes.
You’ve signed death certificates listing cause of death as hypertensive cardiomegalopathy in patients have a similar degree of enlarged heart as Floyd? Yes.
Did you tell investigators when interviewed that cardiovascular disease was a significant contributo rto Floyd’s death? Yes.
If Floyd had been found dead at home, and toxicology had revealed 11 ng/ml of fentanyl in his system, would it have been reasonable for a medical examiner to attribute cause of death to fentanyl overdose? Yes.
Have you signed death certificates as overdose deaths in cases where fentanyl levels were at 11 ng/ml? Yes. Below 11 ng/ml? Yes. As low as 3 ng/ml? Yes.
Would the presence of a combination of drugs, like fentanyl and methamphetamine, make overdose a more likely cause of death? Yes.
Could asphyxia of the heart be induced by methamphetamine creating a higher demand for oxygen by the heart than Floyd’s body could deliver? Yes.
However low the level of methamphetamine in Floyd’s system, is there any level which is safe? No. Would you recommend methamphetamine or even prescription amphetamine for a patient with Floyd’s cardiac status? No.
Would this the demand for oxygen of Floyd’s heart, and the inability of his body to deliver on that demand, be worsened by adrenaline resulting from Floyd’s physical confrontation with the officers? Yes.
So, even if we don’t consider Floyd’s exertion in fighting police, take the police out of the question entirely , pretend there was no impact made by the illicit drugs in Floyd’s system, a reasonable call on cause of death was simply Floyd’s existing cardiovascular disease and hypertension? Yes.
What percentage of restriction of the coronary arteries would be potentially fatal? 70% to 90%. What was the restriction of the coronary arteries in Floyd’s heart? 75% to 90%. Does a 90% stenosis of a carotid artery limit blood to the heart? Yes. Does adrenaline increase the heart’s demand for blood? Yes. Does meth increase demand for blood? Yes.
Was there any bruising to the back of Floyd’s neck or back? No. Either on the surface or even deeper in the tissues? No. Would a knee and shin applied with substantial force be expected to cause a bruise? Yes, would be expected, but absence of bruising doesn’t mean it didn’t happen. That’s true of course, but one does not get to guilt beyond a reasonable doubt based on explaining away an absence of evidence.
On cross-examination Baker was also specifically asked by Nelson if the prone position was inherently dangerous? His answer was that according to his understanding of medical literature, it was not.
Did it appear to Dr. Baker, based on autopsy, review of all videos, and every other piece of evidence made available to him, that Chauvin’s knee ever occluded Floyd’s carotid artery? It did not.
But even if it had, noted Baker, it would have done so to only the carotid artery on that side of the body, and the non-occluded artery would have continued to carry blood to the brain.
So much for the testimony of the state’s MMA expert bystander witness Williams who had testified under oath that a “blood choke” could be effectively applied by the knee to merely one side of the neck.
Would the placement of Chauvin’s knee have been able anatomically to cut off Floyd’s airway? It would not, answered Baker.
Day 11
The obvious implication given that the state hasn’t yet quite concluded its case in chief? That the defense case in chief is expected to be no more than three days in duration.
That’s in contrast to roughly 11 days of the state’s case in chief.
Again, in the context of Dr. Rich, he said what the state needed him to say:
George Floyd died from cardiopulmonary arrest caused by low oxygen levels, those were induced by the prone restraint and positional asphyxiation that he was subjected to.
Of course, we’re once again dealing with a physician making detailed clinical findings based on other people’s reports, and smartphone, body camera, and surveillance video, without ever having actually seen or examined the patient in any way.
Further, like all the previous similarly minded physicians who similarly lacked direct examination of Floyd, Rich very much presented the appearance of someone who’d watched the most awful looking part of the Floyd bystander video, drawn an immediate conclusion, and then identified an opportunity for professional advancement by working his way backwards from that conclusion to a speculative medical rationale consistent with where they once again wanted to end up.
Like some earlier state expert witnesses, Rich claimed to be able to identify on video the precise moment that Floyd went into cardiopulmonary event, right there on the street in front of Cup Foods—in contrast to other state expert witnesses, for example Dr. Baker the only physician in all of this who actually laid hands on Floyd’s body for post-mortem examination, and who testified that he believed Floyd was alive when put into the ambulance and didn’t die until he reached the hospital.
If that sounds to you like the state’s expert witnesses fostering reasonable doubt around Floyd’s manner of death, welcome to the club.
Rich also informed the jury that “I counted the minutes that Floyd was pulseless without CPR,” as part of the state’s argument that delayed care by Chauvin and the other officers is what killed Floyd.
In fact, the period of time from which the officers determine they can’t find a pulse to the arrival of the paramedics the officers know to be en route per code 3 lights and sirens is about 90 seconds, not minutes.
The bottom line from Dr. Rich’s testimony was that nothing else about Floyd could possibly have killed him, but for the conduct of the officers. 90% occlusion of coronary arteries? Nope. Fentanyl overdose. Nope. Pathological hypertension? Nope.
Other people die of those things? Yes.
But not Floyd? Nope.
Could Floyd have had a heart attack? Nope, no chest pain.
Stoughton examines this question with zero inquiry into the standards, practices and policies of the actual department of the officer in question. That officer may have followed his own department’s policies to the letter, but if he didn’t meet the national generally accepted police standards as defined by Stoughton, his use of force was unreasonable and worthy of criminal conviction, and perhaps life in prison.
Stoughton said, once a suspect is handcuffed, he no longer represents any degree of threat to anybody, and therefore the police should be using no force against him whatever.
Stoughton at one point took all this to truly ridiculous lengths by suggesting that instead of trying to fight Floyd into the back seat of the squad car in attempting his lawful arrest, once he’d made them aware of his anxiety and claustrophobia the officers instead should have offered to allow Floyd to ride in the front seat of the squad car—presumably one of the two officers would take the back seat, behind the barrier, while Floyd rode up front with his partner.
Indeed, whereas I’m largely speculating that other state’s witnesses followed this “build your rationale from the conclusion you want” approach, we actually have evidence consistent with that approach in the case of Professor Stoughton.
This came in the form of an op-ed that Stoughton wrote with two others (both co-authors on his latest book) in which they concluded that Floyd’s death was the result of Chauvin’s RACISTPOLICEMURDER!!! neck restraint and positional asphyxia.
How do we know about this Washington Post op-ed? Nelson was kind enough to ask Stoughton about it on cross-examination.
What’s notable about this conclusion was that the op-ed was written in a four-day period between the date of Floyd’s death and when it was published in the Washington Post, and before Stoughton had seen anything other than the bystander video—no medical reports, no autopsy report, no toxicology results, no hours of body cam footage or surveillance camera footage, no 40,000 pages of investigative reports and MPD policy and training materials.
Who needs all that when you already know what happened from the bystander video?
STATE WITNESS DR. JONATHAN RICH, CARDIOLOGIST
At the end of court today Judge Cahill informed the jury that they should expect testimony to end this week, and that they should arrive Monday ready for deliberations to begin-which means, bring an overnight bag, because once deliberations begin, sequestration of the jury begins.The obvious implication given that the state hasn’t yet quite concluded its case in chief? That the defense case in chief is expected to be no more than three days in duration.
That’s in contrast to roughly 11 days of the state’s case in chief.
Again, in the context of Dr. Rich, he said what the state needed him to say:
George Floyd died from cardiopulmonary arrest caused by low oxygen levels, those were induced by the prone restraint and positional asphyxiation that he was subjected to.
Of course, we’re once again dealing with a physician making detailed clinical findings based on other people’s reports, and smartphone, body camera, and surveillance video, without ever having actually seen or examined the patient in any way.
Further, like all the previous similarly minded physicians who similarly lacked direct examination of Floyd, Rich very much presented the appearance of someone who’d watched the most awful looking part of the Floyd bystander video, drawn an immediate conclusion, and then identified an opportunity for professional advancement by working his way backwards from that conclusion to a speculative medical rationale consistent with where they once again wanted to end up.
Like some earlier state expert witnesses, Rich claimed to be able to identify on video the precise moment that Floyd went into cardiopulmonary event, right there on the street in front of Cup Foods—in contrast to other state expert witnesses, for example Dr. Baker the only physician in all of this who actually laid hands on Floyd’s body for post-mortem examination, and who testified that he believed Floyd was alive when put into the ambulance and didn’t die until he reached the hospital.
If that sounds to you like the state’s expert witnesses fostering reasonable doubt around Floyd’s manner of death, welcome to the club.
Rich also informed the jury that “I counted the minutes that Floyd was pulseless without CPR,” as part of the state’s argument that delayed care by Chauvin and the other officers is what killed Floyd.
In fact, the period of time from which the officers determine they can’t find a pulse to the arrival of the paramedics the officers know to be en route per code 3 lights and sirens is about 90 seconds, not minutes.
The bottom line from Dr. Rich’s testimony was that nothing else about Floyd could possibly have killed him, but for the conduct of the officers. 90% occlusion of coronary arteries? Nope. Fentanyl overdose. Nope. Pathological hypertension? Nope.
Other people die of those things? Yes.
But not Floyd? Nope.
Could Floyd have had a heart attack? Nope, no chest pain.
STATE WITNESS SETH STOUGHTON
Stoughton appears to be among the more rabid defund the police, reform the RACISTPOLICEMURDERERS activists out there.Stoughton examines this question with zero inquiry into the standards, practices and policies of the actual department of the officer in question. That officer may have followed his own department’s policies to the letter, but if he didn’t meet the national generally accepted police standards as defined by Stoughton, his use of force was unreasonable and worthy of criminal conviction, and perhaps life in prison.
Stoughton said, once a suspect is handcuffed, he no longer represents any degree of threat to anybody, and therefore the police should be using no force against him whatever.
Stoughton at one point took all this to truly ridiculous lengths by suggesting that instead of trying to fight Floyd into the back seat of the squad car in attempting his lawful arrest, once he’d made them aware of his anxiety and claustrophobia the officers instead should have offered to allow Floyd to ride in the front seat of the squad car—presumably one of the two officers would take the back seat, behind the barrier, while Floyd rode up front with his partner.
Indeed, whereas I’m largely speculating that other state’s witnesses followed this “build your rationale from the conclusion you want” approach, we actually have evidence consistent with that approach in the case of Professor Stoughton.
This came in the form of an op-ed that Stoughton wrote with two others (both co-authors on his latest book) in which they concluded that Floyd’s death was the result of Chauvin’s RACISTPOLICEMURDER!!! neck restraint and positional asphyxia.
How do we know about this Washington Post op-ed? Nelson was kind enough to ask Stoughton about it on cross-examination.
What’s notable about this conclusion was that the op-ed was written in a four-day period between the date of Floyd’s death and when it was published in the Washington Post, and before Stoughton had seen anything other than the bystander video—no medical reports, no autopsy report, no toxicology results, no hours of body cam footage or surveillance camera footage, no 40,000 pages of investigative reports and MPD policy and training materials.
Who needs all that when you already know what happened from the bystander video?
Day 12
BARRY BRODD, DEFENSE USE-OF-FORCE EXPERT WITNESS
This defense witness was not a very good witness for the defense.
DIRECT OF PETER CHANG, PARKS OFFICER
DIRECT QUESTIONING OF SHAWANDA HILL
BARRY BRODD, DEFENSE USE-OF-FORCE EXPERT WITNESS
This defense witness was not a very good witness for the defense.
- there are two main paths of attack for the prosecution on the facts of this case: first, that Chauvin’s conduct was a substantial contributor to Floyd’s death, and perhaps even the primary cause; and second, that Chauvin was not justified in his use of force upon Floyd.
- Nelson got a narrative of justified use of force out of Brodd, but it was one that appeared had never been prepared or stress tested for resilience against cross-examination by skilled and motivated opposing counsel. It looked good on the surface, but the failure to effectively armor this narrative of justification against attack on cross-examination left that narrative—and expert Brodd himself—humiliatingly vulnerable to damage on cross-examination.
- Nelson also had Brodd touch upon a number of truly important points in the necessary narrative of justified use of force.
For example, it’s not the severity of the initial call that controls how much force may be used, but how severe the interaction becomes over its entire duration—a call for a minor offense could become a deadly force confrontation.
Further, how much force a reasonable officer was obliged to use was, at the end of the day, a decision made by the suspect—whether they complied or resisted, and if they resisted to what intensity. - Nelson also had Brodd testify about the reality that a reasonable officer was permitted to use force not just against actions being taken by a suspect in the moment, but against actions which were imminently about to be taken (suspect reaching for an apparent, but not yet seen, weapon) or even heightened risks of harm (suspect refusing to show his hands, to maintain position, and so forth).
- Brodd also informed the jury that an officer could use force even if a suspect wasn’t using any force against the officer or others—for example, if the officer had a reasonable suspicion that a suspect had committed a crime, and the suspect refused commands to stop walking away, the officer could use force to detain the suspect, and even handcuff the suspect, without having to meet the higher requirements of a formal arrest.
- Then, however, Nelson’s direct questioning of Brodd opened a huge target of attack for the prosecution, when Brodd testified that he didn’t consider prone restraint to be a form of use-of-force.
At. All.
Folks, that’s simply not a reasonable use of the concept of force. It is common police practice to describe even mere physical presence or verbal commands as a form of force. Certainly anything involving the laying on of hands by an officer on a suspect is going to be considered a use of physical force. - Schleicher immediately attacked Brodd’s view that prone restraint was not a form of force at all.
So, Floyd, in handcuffs, prone, on a hard street, that was not a use of force at all. Correct, answered, Brodd. Not even if the enforced position caused Floyd pain? That position doesn’t cause pain. Not even with a cop on top of your back and neck? Not even given the abrasions to Floyd’s face and shoulder from the street? (Schleicher didn’t mention, but should have, that Chauvin was also grippingd Floyd’s hand in an explicit pain-compliance technique.) - Schleicher often facilitated this “facts in isolation” tactic by supplementing his cross with still photographs of the 9 minute plus prone restraint, or perhaps isolated 10 second videos obviously carefully chosen to maximize the apparent reasonableness of the state’s position, and minimize the reasonableness of the defense position.
Is a suspect’s intoxication, by itself, sufficient to justify a use of force by an officer? Can an officer use force on someone merely because they are intoxicated? Brodd agreed not. What about a suspect’s disparate size, could an offer use force on someone merely because they were much larger than the officer? Brodd agreed not.
Of course, nobody is attempting to justify the use of force on the basis of any of those factors in isolation—rather, those are among the many factors that play a role in the totality of the circumstances. - Isn’t the passing of a bad $20 bill really a small crime, no matter if the state lists it as a felony, compared to say domestic assault, which the state lists as a misdemeanor, at least in the context of risk of physical violence? Sure, answered Brodd. Of course, the necessary context is that the use-of-force upon Floyd was not premised on his passing of a $20 bill—for which he likely would have ended up with just a summons—but for his forcible resistance of the officer’s lawful efforts to place him in the squad car. Not even the prosecution contests that the police were privileged to their use-of force for that purpose.
- Schleicher badgered Brodd into agreeing that officers could not use force against a mere risk, thus zero force allowed—and surely after Floyd lost consciousness he was at worst a risk, not an active threat, and thus Chauvin was not privileged to use force against Floyd at all.
DIRECT OF PETER CHANG, PARKS OFFICER
- Chang was on duty in a nearby park when he heard the radio chatter about Floyd’s arrest, including that police were taking someone [Floyd] out of a vehicle, believed he heard a struggle over the radio, and self-assigned himself as backup to the scene.
- Chang had remarkably favorable testimony for the defense, perhaps most importantly that he perceived the growing and angry crowd as a prospective threat to the officers on scene. Indeed, he described the crowd as “very aggressive” to the officers.
- The commentary of Hill, Hall, and McMillian was particularly helpful to the defense.
Hill can be heard exclaiming aloud: “Man, [Floyd] STILL won’t get in the car. Just get in George!” and “WHAT is he doing? Now he’s going to go to jail!”
Morries Hall can be heard muttering about Floyd: “He over there fighting with the law and sh!t!”
McMillian is overheard telling Hill and Hall: “I saw everything, [Floyd] f’d up. He f’d up. I tried to get him to get into the car, told him he can’t win.”
It was pretty good stuff for the defense.
DIRECT QUESTIONING OF SHAWANDA HILL
- Not only did Shawanda Hill, the female passenger in Floyd’s SUV and also described as his “ex-girlfriend” appear in the body camera footage of Officer Chang, she also appeared in court today to testify in person.
- The most important part of her testimony for the defense was describing how Floyd was initially pretty regular in demeanor when he first attempted to pass a bad bill in the Cup Foods store, but that shortly after returning to the Mercedes SUV he suddenly fell asleep. Indeed, he fell into such a deep sleep that she could not rouse him, or when roused he immediately fell asleep again. It was bad enough that she gave up the idea of getting a ride home from Floyd, and called her daughter to come pick her up.
- On cross-examination Hill surprisingly presented some difficulty for Prosecutor Frank. At one point when he was having difficulty getting a straight answer from her, she kindly offered to explain if he liked. He invited her to do so.
Accepting his invitation, Hill immediately began a lengthy monologue about how Floyd had tried to pass a bad $20 bill, how he wouldn’t awake when police were knocking on his car window with a flashlight, how she was desperately trying to get him to rouse and comply with police, and—
At that point a horrified Prosecutor Frank abruptly interrupted her.
At which point she looked at him accusingly and said “YOU SAID EXPLAIN!”
Cross didn’t go any better for Frank after that.
Floyd fell asleep? Yes. But you woke him. Yes …. but then he fell asleep again. But he did wake up? Yes … but he was not coherent at the time.
I dont know when I received it but I think it was during surgery. After surgery I was given oxy, toradol and dilantin at different points for pain. The dilantin shot was the one where I learned why people abuse drugs.
Day 13
DEFENSE EXPERT WITNESS DR. DAVID FOWLER, FORENSIC PATHOLOGIST
DEFENSE EXPERT WITNESS DR. DAVID FOWLER, FORENSIC PATHOLOGIST
- As one should expect from a retained expert witness, Dr. Fowler was prepared to say the magic words that the defense needed said, in the context of having formed an opinion, to a reasonable degree of professional certainty, as to the cause and manner of George Floyd’s death.
And that opinion is:
George Floyd had a sudden cardiac arrythmia due to atherosclerotic and hypertensive heart disease, during his restraint by the police. - he reminded the jury of the medical versus legal application of homicide with respect to the death certificate. He also had Dr. Fowler step through the various components of a death certificate to clarify where an actual cause of death was being asserted, and by what means.
- The real take home message in all of this was that Fowler agreed that low oxygen played an important role in Floyd’s death—but it was the manner in which that low oxygen state was achieved that made the difference in this case.
- More specifically, the state was essentially arguing that it was the subdual restraint by the officers upon Floyd that induced positional asphyxia, a low oxygen state, and a consequent fatal arrhythmia in Floyd’s heart.
Fowler’s view, however, was that it was not a profound low oxygen state induced by the police via subdual restraint and positional asphyxia that caused Floyd’s heart to stop, but rather that it was Floyd’s exceptionally fragile physiological condition—a condition unknowable to the arresting officers—that made his heart exceptionally vulnerable to even the modest shortfall in oxygen caused by Floyd’s decision to fight arrest, resulting in the cardiac arrest. - According to the defense narrative it was, in effect, Floyd’s own physiological fragility that killed him when he chose to subject himself to the justified use of force by police officers compelling his compliance with lawful arrest, including his forcible 10-minute struggle with multiple police officers and subsequent restraint.
- Nelson had Fowler explain why Floyd could have died of a cardiac arrest even in the absence of apparent damage to heart cell; how a sudden arrhythmia would have resulted in a low oxygen condition; how Floyd’s enlarged heart induced by his pathological hypertension would have made him particularly vulnerable to even a modest drop-off of oxygen and other resources; how Floyd’s profound coronary artery occlusion made him even more vulnerable in this manner; how Floyd’s heart disease primed him for a fatal arrhythmia; and perhaps an abrupt release of adrenaline from Floyd’s paraganglioma found in his lower abdomen.
All of this fragile physiology was further primed for catastrophic failure by various environmental factors, including Floyd’s fentanyl toxicity, which reduced respiration and thus desperately needed oxygen; Floyd’s methamphetamine use, which increased the heart’s demand for resources even as it reduced his body’s ability to deliver those resources, as well as fostering failure of Floyd’s biological “pacemaker” that prevents fatal arrhythmia; the adrenaline released by the “fight or flight” response triggered by Floyd’s decision to physically resist arrest; and perhaps even acute exposure to carbon monoxide being exhausted from squad car 320, whose exhaust pipe was only about a foot or so from Floyd’s face, which would have bound up a substantial portion of Floyd’s hemoglobin and further reduced his oxygen-carrying capacity.
Nelson also had Fowler address the lack of any indication of physical injury, not even bruising much less broken bones or cervical damage, to Floyd’s neck and back, when in Fowler’s lengthy experience in working with such cases signs of injury were common. Nelson also took the same approach to the state’s arguments that it was pressure on Floyd’s hypopharynx that caused his death—Fowler had never seen that occur and found no reference in the literature to it having ever occurred, as a result of external pressure (as opposed to some ingested obstruction, such as a chunk of food, or an internal tumor).
Nelson also had Fowler speak authoritatively with respect to a number of studies of positional asphyxia that substantially undermined the state narrative that this was a clearly deadly restraint procedure that any reasonable officer should have known created a lethal danger to a suspect.
Indeed, the studies indicated that even lengthy periods of subdual prone restraint while subject to weights of as much as 225 pounds showed little tendency to induce hypoxia in otherwise healthy subjects. - Blackwell began his cross-examination on fire, with contempt dripping from his voice, and engaging Fowler in a manner that to this small-town attorney was outrageously disrespectful and argumentative.
This aggressive approach to Fowler began with a line of questions that superficially asked Fowler how an expert should reasonably approach a case, but which were obviously intended to suggest to the jury that Fowler had approached the case in an entirely unreasonable manner.
You would agree that an expert witness should be objective? Yes. Fair? Yes. Impartial? Yes. You agree that you should be thorough? Yes. In order words, that you should do your [damned!] homework before coming into court? Yes. - An expert shouldn’t jump to conclusions? Yes. Shouldn’t connect facts in a way that’s biased? Yes. Shouldn’t cherry pick facts? Yes. Shouldn’t intentionally confuse the jury? Yes.
- By this point, however, Judge Cahill, who has rigidly enforced at least nominal signs of respect among the parties and towards witnesses while in his court room, had had enough of Blackwell’s argumentative conduct.
- Blackwell asked if it was true that there was nothing about CO in the autopsy report? Well, everyone knew that, because medical examiner Baker hadn’t considered the issue during autopsy.
All these EPA and CDC and California car exhaust studies and regulations about carbon monoxide that you cite here in court—you’ve never actually been an industrial hygienist, have you, Dr. Fowler? He had not ever been, and frankly I’m not at all sure that Blackwell didn’t just make that job title up out of thin air.
Can you tell the jury exactly what level of CO Floyd had in his system when he died? Well, naturally not, because the state of Minnesota had never bothered to look. - Do you even know if the squad car was running? There were indications it was running, such as moisture dripping from the exhaust. So ,you just assumed it was running? (I mean, we all know that if you assume, you make an “ass” out of “u” and “me,” right?). No, answered Fowler, I didn’t assume anything. I made an inference from the evidence.
- Do you even know the make and model of this vehicle, he asked in a voice of outrage, certain that Fowler would not know, and would therefore have profoundly undercut his credibility.
Yes, answered Fowler—it was a Ford Explorer, Police Interceptor Model.
Well, fine, but do you even know what exhaust arrangement that vehicle has? Again, in a tone of moral outrage, and with the confidence that Fowler would know nothing of the sort.
I do, answered Fowler—it has a four-pipe exhaust arrangement, with two exhaust pipes at each side of the rear of the vehicle. - Do you have actual data on the carbon monoxide levels in Floyd’s breathing zone while he was in subdual restraint and neck compression? Of course not, nobody knows, it was never measured.
- Blackwell’s asking for data or findings he knew very well did not exist, and which Fowler had never claimed to exist, was a common theme throughout his cross-examination of the pathologist.
- Blackwell showed a short video from inside Cup Foods of Floyd holding a banana. Can’t you see him chewing food in that video? Fowler agreed that Floyd’s mouth was moving in a chewing type manner, but I don’t know why, I personally didn’t see anything of the sort. What I did see was Floyd staggering visibly, but that went unmentioned in court today.
How could you possibly know the white object in Floyd’s mouth while seated in the car wasn’t food, rather than a pill.
Well, answered Fowler, I never said it was a pill. I merely said it was a white substance, and that was quite intentional.
Indeed, the only person to explicitly label the white object a pill was Blackwell himself, another misstep on his part. - Fowler had testified that a noted scientist who had been very prominent about the dangers of positional asphyxia had ultimately retracted his concerns after conducting a variety of clinical studies on the subject.
On cross-examination, Blackwell read from an affidavit of that same scientist, in which he stated that he remained concerned about positional asphyxiation. Proof that Fowler was wrong, or untruthful, about the claimed retraction of concern?
Not so much. On re-direct by Nelson it turned out that Blackwell had skipped some important content in the affidavit—the positional asphyxia that the scientist remained concerned about was not general in nature, but applied only to suspects who were obese or who suffered from congestive heart failure.
Well, Floyd was not obese, and the officers had no reason to infer congestive heart failure, so Floyd would not be among the suspects about whom this scientist would still believe positional asphyxia to be a real concern. - On the issue of Fowler not having considered the weight of Chauvin’s equipment, Nelson asked if the state of Minnesota had ever provided access to that equipment so it could be weighed? They had not. To your knowledge has the state of Minnesota ever made weight measurements of Chauvin’s equipment. Not that I ever saw.
- Whatever the weight of the equipment, after all, it would only have made Chauvin heavier, which was the state’s point in bringing it up, more weight more pressure, more pressure more lethal effect. But of course, more weight and pressure would also be expected to have other consequences.
You said you saw no evidence of bruising to Floyd’s back? I did not. Not even from Chauvin’s knee and shin? No. When you consider not just Chauvin’s weight, but also the weight of his equipment, would that make it more probable that we should have seen injury if undue force was used? Why, more likely, of course. But yet no bruising, no hemorrhage, nothing? Correct. - Nelson also had an opportunity to touch upon the state’s continually-minute dumping of exhibits on the defense. You studied photographs of the bottom of squad car 320? I did, answered Fowler. Provided by the state? Yes. Provided since this trial started? Yes, just the last couple of days.
I doubt the jury understood the significance of this exchange, and can’t see any ready means to help them understand it, but it’s now part of the record of the proceedings, and will be available for reference should an appeal of a conviction be necessary. - Nelson asked Fowler, can you say what that white substance was, with any specificity? I cannot, answered Fowler. But you agree that white pill fragments were found in squad 320? Yes. And those white pill fragments tested positive for saliva? They did. And that saliva tested positive for Floyd’s DNA? They did.
- Nelson here also circled back to Blackwell’s claim that Floyd had been choked by officers at every point that he claimed he could not breathe, including when he was still forcibly resisting being placed into squad 320, long before being put prone on the street.
Nelson pulled up the same photos used by Blackwell. What side of the car is that? That’s the street side of the car. Is that where Floyd got into the car, or was pulled out of the car? Out of the car. Was he saying at this moment that he could not breathe? He was not. Was Chauvin’s arm positioned to choke him? No, it was loosely draped around Floyd’s neck, with clear space between the front of Floyd’s neck and Chauvin’s arm. - Nelson pulled up slightly earlier photos. What side of the car is this? The sidewalk side. Where Floyd is being put in the car? Yes. When he’s saying he can’t breathe? Yes. Is he being choked here? No.
Day 14
STATE DIRECT QUESTIONING OF TOBIN REBUTTAL
DEFENSE CROSS-EXAMINATION OF TOBIN REBUTTAL
At this point the state and defense both made the final announcement that they were resting their case in chief, and Judge Cahill turned his attention to the jury.
They would be dismissed for the day, and until Monday at 9:00am CT, at which time they would return to court to hear the closing arguments of the state and the defense, receive their jury instructions, and begin their deliberations. They were reminded that they were to be sequestered during deliberations, and so were cautioned to “pack a bag.”
- The big surprise of the day, however, was the state’s sudden claim that they had discovered “new evidence” that justified re-calling state expert witness Dr. Martin Tobin, pulmonologist, to the witness stand to rebut some of yesterday’s testimony by defense expert Dr. David Fowler, a forensic pathologist.
- The “new evidence” was purportedly just-discovered data on Floyd’s blood oxygen levels when at the Hennepin County Medical Center.
- The state wished to have Dr. Tobin testify about that data to rebut suggestions by Dr. Fowler that given the proximity of Floyd’s face to the exhaust of squad car 320, it was possible that Floyd’s carbon monoxide blood concentration could have been as high as 18%–a level Fowler testified was sufficient to be dangerous to Floyd, and a contributing cause to Floyd’s death, given Floyd’s fragile physiology.
- the state set out four areas that they wished Tobin to testify about.
- First, the state claimed that the Hennepin County Medical Examiner, Dr. Thomas Baker, after hearing Fowler’s testimony yesterday on the carbon dioxide issue, had somehow dug into the hospital’s records and found that Floyd’s blood concentration of CO had, in fact, been measured at the time—but had never been previously produced when the parties had subpoenaed Floyd’s medical records.
The state now wanted these data to be shared with the jury and explained by Dr. Tobin, to rebut Fowler’s claim that Floyd’s CO concentration could have been as high as 18%. - It was only the state, not the defense, that had possession of the blood. As a result, the state was on notice with respect to the CO issue, and if they failed to address that issue in a timely manner, that was on them.
Judge Cahill agreed with the defense with respect to this “newly discovered” blood gas level data, and informed the state that if Tobin so much as hinted at this new data, the Judge would order a mistrial had occurred.
That said, Cahill said he would allow Tobin to speak to the CO concentration issue if he only referenced data that had long been available to both parties. That opened the door to the prosecution having Tobin reference Floyd’s oxygen (rather than carbon monoxide) levels, and use the O level to infer possible CO level. - Because the parties were aware that blood gas measurements had indicated that Floyd’s blood had O levels of 98%, it could be inferred that his CO levels could be no greater than the remaining 2%, which was well within normal.
- The state claimed that Fowler’s reference to this PubMed search was “new evidence” not previously shared with them, again qualifying as “ambush” testimony, and again providing the exception necessary for them to have Dr. Tobin testify on this issue on rebuttal. The state indicated that Tobin would testify that there were, in fact, a number of scientific papers and studies that supported his claim..
- Judge Cahill ruled that Tobin would be permitted to testify as to the existence of such papers on rebuttal, in a summary fashion.
- The state also wanted to be permitted to have Dr. Tobin testify again on his earlier claim that the cause of Floyd’s death was hypoxia, or low oxygen, claiming that Dr. Fowler had contested that claim in yesterday’s testimony.
- Cahill ruled that Tobin would not be permitted to testify as to this issue on rebuttal.
STATE DIRECT QUESTIONING OF TOBIN REBUTTAL
- That direct questioning on rebuttal was conducted by Prosecutor Blackwell and took only about 8 minutes. Excitement, of the legal type, occurred about four minutes into direct when Tobin appeared to reference the blood gas data that Cahill had cautioned would result in a mistrial.
Nelson immediately objected, and the court went into a couple of minutes of sidebar, during which I’m sure the defense was asking for a mistrial.
DEFENSE CROSS-EXAMINATION OF TOBIN REBUTTAL
- Without any real way to prepare for this unexpected testimony, there really wasn’t much he could accomplish.
At this point the state and defense both made the final announcement that they were resting their case in chief, and Judge Cahill turned his attention to the jury.
They would be dismissed for the day, and until Monday at 9:00am CT, at which time they would return to court to hear the closing arguments of the state and the defense, receive their jury instructions, and begin their deliberations. They were reminded that they were to be sequestered during deliberations, and so were cautioned to “pack a bag.”
Yeah they weren't prepared for the CO argument even though it sounds like the CO argument wasn't an issue. It is interesting that Floyd's blood had O levels at 98% but yet he died of low oxygen brought on by the actions (or reactions) of the officers. Closing arguments and jury instructions will be interesting to see on Monday. I'm thinking guilty of manslaughter at most.
The defense has a built in appeal if chauvin is convicted because the prosecution entered forbidden evidence.
