Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd. I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.
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OK folks, I’m playing a bit of catch-up here on last Friday’s testimony of state witnesses, Dr. Lindsey Thomas, a forensic pathologist retained as another expert witness for the state, and Dr. Andrew Baker, the Hennepin County Medical Examiner who conducted the autopsy of George Floyd.
I know that Professor Jacobson did an awesome job live blogging this testimony as it was happening on Friday, which kindly gave me the opportunity to take the day to attend to other commitments, so I’ll treat my view of Friday’s proceedings in a rather more summary fashion that is my usual practice. In part this is also because of the nature of the testimony provided.
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 to 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.
Good for the state, right?
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. (Below I’m just 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 flighting 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.
In the context of death being purportedly afflicted by subdual restraint and neck compression, Nelson also hammered on the absence of any objective evidence of actual force sufficient to achieve such a result.
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 explaining away an absence of evidence.
Then, for both Thomas and Baker, on re-direct by Prosecutor Blackwell they would both once again parrot the magic words desired by the state: Floyd’s death could only be attributable to asphyxia complicated by law enforcement subdual restraint and neck compression. Not to heart disease? No. Not to hypertension? No. Not to fentanyl? No. Not to Meth? No. Not to fighting the police? No.
This generalized and simple-minded denial of the uncertainty and doubt raised in detail by the defense on cross once again may provide fodder for conviction-favorable headlines, but it doesn’t push the needle closer to certainty beyond a reasonable doubt in court.
And that is precisely the state’s burden: certainty beyond a reasonable doubt. Any ambiguity in the case necessarily accrues to the benefit of the defense, and the lengthy cross examination of both Thomas and Baker revealed plenty of ambiguity.
It’s also worth noting that the state calling for the testimony of Thomas immediately before that of Baker borders on the inane. The entirety of Thomas’ testimony was premised on Baker’s autopsy report, and other materials also used by Baker to arrive at his conclusions on cause and mechanism of death.
With Baker appearing to testify himself about his autopsy and conclusions, what purpose could possibly be served by first having Thomas provide her own interpretation of Baker’s work? What would she know that he didn’t know? What could she testify about on these issues that Baker himself—the only one of the two of them who actually did an actual autopsy of Floyd—could not testify about?
Even worse than simply be a less well-informed and duplicative witness immediately preceding Baker, Thomas also had some serious missteps of her own. For example, at one point Nelson raised a Canadian study that looked at 3,000 instances of Canuck police putting suspects in prone position, without even a single one of them dying of this purported positional asphyxia.
Thomas’ response was not to impeach the quality or methodology of the study, but simply to express bewilderment. She simply had no idea why the Canadian study should be so different, she said, she was completely baffled, given that in her experience virtually every forensic pathologist in the United States had experience with positional asphyxia.
Frankly, I thought Nelson could have been much more aggressive on cross of Thomas on this point in particular, because her bafflement reflected a profound failure to understand the essential issues at play here.
For example, even if it were true that every forensic pathologist had experience with positional asphyxia—a claim I would strongly question—the forensic pathologist by definition only ever sees dead people. They would have no knowledge of the number of suspects placed prone who did not as a result require an autopsy. Thus they could have no informed opinion on the relative risk of prone restraint.
Further, there were obvious points to hammer home on here. Was Dr. Thomas suggesting that human physiology worked differently for Canadian criminals than it did for American criminals, in such a way that the Canadian suspects were apparently immune to ill effects from a restraint technique that presented an imminent threat of immediate death to American suspects?
Of course, perhaps Nelson does intend to make such points with vigor, but with his own experts on direct questioning, rather than on cross of the state’s witnesses.
By the way, Prosecutor Blackwell’s response to this Canadian study on re-direct of Thomas was to ask her if Floyd had died while a Canadian suspect. As if that matters.
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.
So how again, exactly, did Chauvin’s conduct kill Floyd?
Baker also testified that a factor in his consideration of cause of death was that Floyd had been given CPR and survived until he reached the hospital, only dying there. This testimony directly contradicts that of early state expert witnesses who testified that they could identify the precise moment of Floyd’s death as he lay prone on the street based on police body camera, surveillance, and bystander videos.
My take away from watching the entirety of the testimony of Thomas and Baker was that, like other earlier state expert witnesses, they’d said the magic words the state had called them to say, but then had their credibility and purported certainty was profoundly gutted by the defense on cross examination.
This is particularly so given that it is the state that needs to prove a cause of death attributable to the defendant, and do so beyond a reasonable doubt. The defense does not need to prove some alternative cause of death. The defense need merely raise a reasonable doubt that some cause of death not attributable to the defendant may have been what killed Floyd.
OK, folks, that’s it for tonight. I’ll be back on the case every morning, LIVE blogging right here at Legal Insurrection, and of course with our end-of-day wrap-up commentary and analysis in the evening.
Finally, anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial can access the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including Pandora, iHeart, Spotify, Apple Podcast, Google Podcast, simple RSS feed, and more.
Until next time, stay safe!
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service. If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here: Law of Self Defense Membership Trial.
[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]