Chauvin Trial Day 9 Wrap-Up: Prosecution Has A Not-Bad Day With Medical Experts

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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Today the state presented three medical/science experts. The first was Dr. Martin Tobin, Physician in Pulmonary and Critical Care Medicine, Chicago, presented as an expert witness on respiratory matters. He was followed by Daniel Isenschmit, Forensic Toxicologist, NMS Laboratories, who was involved in drug testing Floyd’s blood. And the day closed with Dr. William Smock, Emergency Medical Physician, and self-described “Police Surgeon,” who discussed excited delirium and some other issues.

OK folks, I won’t bury the lead—today’s trial proceedings looked a lot more typical for a prosecution presenting its case in chief than has been the case so far in Minnesota v. Chauvin.  What I mean by that is that the state finally had a day in which its own witnesses did not end up doing the defense more good than themselves.

We’ve grown so accustomed to Nelson simply having his way with prosecution witnesses that today might appear as if it were bad for the defense.  It would be more accurate to say it was not a great day for the defense—which is quite a change from past experience.

In truth, however, this is what every day of the trial should have looked like so far. Right now it is the prosecution in charge, presenting their case, in control of direct questioning.  The defense is very limited in what they can do on cross-examination. They can’t simply produce their own evidence for the jury, they can’t argue with the state’s witnesses, they are limited in their cross-examination to only the issues the state has chosen to raise in their direct questioning.

These are all real and substantive constraints on the defense while the prosecution is presenting their case in chief.  The amazing thing about this trial to date is how well the defense has been doing even while bound by those constraints.

Today was, again, far more typical of what should be expected.  The prosecution is putting forth its witnesses, framing the issues the way they want them framed, asking the scope of questions the way they want them scoped—every day should make the prosecution look just awesome.

The turnaround on that perception really ought not be expected until the defense has their turn at bat, gets to present their own witnesses, to frame the issues the way they want them framed, ask the scope of questions the way them want them scoped—and the state finds itself bound by all the constraints that so far have limited only the defense.

This is also why I urge all of you to not make day-to-day judgments about how the trial is going, at least not in the sense of expecting any day’s events to predict the likely outcome of the trial.   A football game is not decided in the first half, and a criminal prosecution ought not be expected to be a wrap when only the state’s version of the narrative has been fleshed out in court.

That said, the state got done what it needed to get done today with its expert witnesses, who unambiguously told the jury that Floyd’s death was the direct result of the police restraint used to hold him for EMS, period, and that nothing else mattered. Not Floyd’s fentanyl level, not Floyd’s substantial co-morbidities. Not Floyd’s poorly made decision to fight four police officers against lawful arrest.

So, as would normally be expected at this point in the trial, but which has gone missing up to now, the state had a good day today.

That’s not to say the defense did poorly, within the constraints already described.

I will note that Defense Counsel Eric Nelson definitely appeared tired today, he was hoarse, and clearing his throat. Could he be wearing down? With any luck tomorrow, Friday, will be an early day and he’ll have the weekend to get some R&R. I trust he’ll be back to form on Monday.

It must be said that getting handed new state exhibits at night, as occurred to him just last night, after being in court all day, and knowing that review of those exhibits will be necessary for cross-examination of witnesses today, certainly can’t be making his job any easier.

Dr. Martin Tobin, Physician in Pulmonary and Critical Care Medicine, Chicago

A couple of interesting points about Dr. Tobin, up front. First, although he normally charges substantial fees ($500 per hour) for acting as an expert witness in court, he agreed to provide his services in this case for free.  His explanation is that he’s never been an expert witness in a criminal trial before, so didn’t want to charge.  I suppose that could be why. Alternatively, I suppose it’s possible he’s motivated to do the job for free for political reasons.  Who knows?

Second, while Prosecutor Blackwell was walking Dr. Tobin through his background, training, education, expertise, and all the other stuff you do to qualify your expert in front of the jury, Dr. Tobin mentioned that a chunk of his practice consists of treating patients who require mechanical ventilation due to a variety of underlying causes—including drug overdose. No kidding.

Third, Tobin would arrive at his expert opinion after watching videos of the event literally “hundreds of times,” as well as after leisurely reviewing perhaps thousands of pages of investigative reports, forensic results, medical history and more.

None of that, of course, was available to officers on scene as they fought an intoxicated 6’ 6” 230-pound  Floyd as he violently resisted lawful arrest, in the presence of a hostile and threatening crowd, as they waited for the code 3 “lights and sirens” requested paramedics to finally arrive on scene.

In any case, Tobin gave Prosecutor Blackwell on direct questioning exactly what they needed from him, and that was an expert opinion, to a reasonably degree of professional certainty, that what killed Floyd was impaired breathing that resulted in sufficiently low oxygen levels to cause his death, as a result of the manner in which he was restrained by Chauvin and the other officers.  Here’s video of his testimony that captures those statements.

So there we have it: According to the opinion of the state’s retained expert witness, it was Chauvin et al. who killed Floyd.  Exactly as the state’s expert witness is supposed to do.  Surprise, surprise.

Blackwell stepped Tobin through more than two hours of direct questioning, during which Tobin provided a lengthy rationale for how he’d reached his opinion. Frankly, the entire rationale struck me as working back from a conclusion.  That is, it appeared that Tobin started with the conclusion that the officers’ conduct had killed Floyd, and then worked backwards from there to build out a framework that led him right back to where he’d started.

Of course, circumstances were quite different for the officers actually dealing with Floyd, who didn’t have the ability to see into the future and know that Floyd would die that day, nor did they know a great many other relevant facts made available to Tobin but unknown to the officers attempting to, first, lawfully arrest Floyd and, second, get him apparently badly needed medical care.

In addition, Tobin’s path to reach his opinion involved a substantial amount of high-level medical expertise, complex biological and physics models, even mathematics of a degree that the notation was indecipherable to this small-town lawyer. How any of this would be actionable by police officers called to a crime scene and compelled to fight a large and violently resisting suspect was not explained.

Tobin also demonstrated an amazing ability—or, at least, claimed an amazing ability—to make precise biological determinations from cell phone and body camera video.  For example, Tobin claimed to be able to tell the precise instant when Floyd suffered brain damage as a result of low oxygen levels (it was when Floyd abruptly kicked out a leg).

He could discern precisely what was happening within Floyd’s body, despite there being no physical manifestation of those processes either while Floyd was alive or upon medical examination after Floyd had died. Indeed, he claimed to discern the exact moment that Floyd died, by the expression on Floyd’s face:  “One second he’s alive, and one second he’s no longer.”

He had models illustrating loses in lung function to the individual percent, although he had no personal knowledge of Floyd’s respiratory capacity when alive.

When asked by Blackwell whether it was true that if someone could speak, it meant they could breathe, Tobin cautioned that this was a dangerous view, because just because someone was breathing now didn’t mean they would be breathing 10 seconds from now. Which strikes me as just another way of conceding that the actual statement itself is, in fact, true—if you’re speaking, you’re breathing.  Nobody has ever claimed that if you’re speaking now it means you’ll be breathing later.

To undercut the theory that Floyd might have died not from police restraint but because of fentanyl overdose, Tobin argued that this could not be the case because fentanyl slowed the rate of respiration, and from the video he measured Floyd’s rate of respiration as normal.

Unaddressed on direct was the fact that Floyd’s respiration was being subject to a wide variety of biological drivers besides fentanyl—including arguably the combination of Floyd’s COVID history and the prospects for long-term lung disfunction, his existing cardiovascular disease, the presence of methamphetamine in his system, and his just completed 10-minute physical fight with multiple police officers.

The bottom line, again, is that Tobin on direct delivered what any prosecution should expect their expert witnesses to deliver—the opinion they needed to buttress their narrative of guilt.

Here’s that couple of hours of direct questioning of Dr. Martin Tobin by Prosecutor Jerry Blackwell:

Tobin Direct Questioning

On cross-examination, Nelson touched on many of the points I hit on above.

Police officers have nowhere near the medical expertise of Tobin, indeed they’re not even trained to the level of an EMT.

Tobin had the luxury of watching the videos hundreds of times, all different angles, still framing, slow motion, and so forth, as well as seven meetings with the prosecutors, including as recently as yesterday and the day before.

Tobin had also had the opportunity to prepare for the prosecution a whole series of exhibits—diagrams, illustrations, graphs—to use alongside his testimony.

Exhibits that were provided to Defense Counsel Nelson … last night.

That’s not a typo. Last. Night.

Nelson also emphasized that the biological circumstances around Floyd’s death were not a simple model of four force factors and limited to the conduct of the officers, as simplistically described by Tobin, but in fact were much more complex. Floyd’s drug levels, his badly impaired health, his decision to fight four police officers for 10 minutes before they were compelled to restrain him for EMS, all played a role in that day’s outcome.

Tobin, however, insisted that it was all very simple. Just one biological process resulting solely from the officers’ force upon Floyd was all that mattered. Again, exactly what the state had ordered up from their expert witness.

On the “if you can speak you can breathe” issue, Nelson noted that in Tobin’s own report he’d written that even physicians often believe this to be true. Tobin agreed.  You may recall that state witness MPD use-of-force trainer Lt. Mercil had previously testified that he himself taught that concept when instructing officers.

Nelson pointed out that Tobin’s purportedly precise calculations of how many pounds of force Chauvin was placing on Floyd were based on assumptions.  You’ve assumed the weight of Chauvin on May 25, 2020? Yes. You’ve assumed the weight of his equipment, you didn’t actually weightthat equipment?  Correct.

Body weight force model assumes that Chauvin kept his weight equally balanced on both legs throughout his restraint of Floyd, but in fact his weight was pretty frequently re-distributed.  That’s correct, Tobin answered.

The biological models purporting to pin down precisely what happened to Floyd internally as he was restrained by police were based on generalized assumptions for a 46-year-old of the same height and weight as Floyd. Yes.

Who is healthy. Yes. Of course, we know that Floyd was far from healthy, with severe cardiovascular disease—including a 95% blockage of a coronary artery and seveer hypertension—as well as recent COVID

In the real world, Nelson suggested, the specific biology of Floyd comes into play.  That’s correct, answered Tobin.

On the issue of fentanyl, Tobin insisted that the drug could not have played a role in Floyd’s death because he claimed Floyd’s respiration was not depressed, as would be the case with fentanyl overdose.  Might there be competing factors that could offset fentanyl’s respiratory effect, at least transiently?  Meth on board? Adrenaline from a physical fight with police?  Tobin downplayed the importance of these factors.

Also on the topic of fentanyl, Tobin insisted that fentanyl made people sleepy, even unconscious, when it killed via overdose, and Floyd had after all just been fighting police.  In response Nelson brought up the pill fragments found in the squad car, the pills that were found to consist of fentanyl and meth, covered in Floyd’s DNA.

If Floyd had consumed the pills in the squad car immediately before being proned on the street, wouldn’t we expect it to take some five minutes before the drugs reached peak effect? Yes, answered Tobin. And continue their effect after that point? Yes.

This would coincide, of course, with that period of time in which Floyd was visibly slowing down and apparently losing consciousness.

With respect to how Tobin had purportedly identified the precise moment at which Floyd had suffered brain damage, the kick of Floyd’s leg, Nelson asked if it might be reasonable for a police officer to perceive such movement as continued resistance.  The state objected, and that objection was sustained—but the jury heard the question posed, which was really the point.

And that about wrapped up Nelson’s cross-examination of Tobin:

Tobin Cross-Examination

Make no mistake, however, that this cross-examination was nothing like the train wreck the state had experienced with so many of their earlier witnesses, including experts, including MPD officers.  Nelson hit important points on cross-examination, but Tobin remained adamant that it was the officers’ restraint of Floyd that killed him, period.

In short, as already noted, Tobin served the purposes the state intended for him when he was retained as a medical expert for this trial, precisely as he ought to have done for the state.

There were also brief re-directs, re-cross, and even a re-re-direct of Tobin, but none really amounted to much. In any case, here they are:

Tobin Re-Direct

Tobin Re-Cross

Tobin Re-Re-Direct

Daniel Isenschmit, Forensic Toxicologist, NMS Laboratories

The next state’s witness was Forensic Toxicologist Daniel Isenschmit, of NMS Laboratories, whose direct questioning was conducted by Prosecutor Erin Eldridge.

Isenschmit had been involved in toxicology screening of Floyd’s blood, with a particular focus on concentrations of fentanyl and its metabolites, as well as methamphetamine.

The purpose of this testimony was to play around with various statistics to encourage the jury to infer that Floyd could not have died of fentanyl overdose. In this context, Isenschmit compared the concentrations of fentanyl, metabolite afentanyl, and methamphetamine to selected populations of people who had also tested positive for these drugs, with the goal of showing that, hey, look, Floyd’s drug levels weren’t really all that high after all!

As a reminder, Floyd had a concentration of fentanyl in his blood of 11 ng/ml, often described (including by me) as a three-fold fatal dose of the drug.  It must be said that this fatal dose is presumably for a naïve user of fentanyl, and that a chronic user could have a substantially higher tolerance—and indeed, would be expected to.

Of course, we also have testimony from Floyd’s co-addict lady friend that he had (she claimed) been clean for some lengthy period prior to the May 25, 2020 arrest, right up until shortly before that event when he began using again. Tolerance is lost as well as acquired, so to what extent Floyd had fentanyl tolerance on the day of his death is probably unknowable.

In any case, Isenschmit would present the jury with a chart like this one:

The point was to illustrate that, hey, when NMS Labs tested the blood of 19,815 people who had died and who also had fentanyl in their system, those people had an average concentration of 16.80 ng/ml, and a median level of 10.0 ng/ml.

Well, look at that—now Floyd’s concentration of 11 ng/ml doesn’t look so bad? I mean, look at all those dead people, they had a way higher average concentration of fentanyl than did Floyd. Surely that means Floyd could not have died of fentanyl overdose!

One obvious weakness of this argument is rather dependent on people not understanding what an average and a median are—and that’s probably a pretty safe assumption these days.

The median of 10 ng/ml, for example, means that exactly half of the dead people had blood concentrations greater than that amount—but it also meanst hat half of the dead people had blood concentrations lower—and therefore lower than Floyd’s concentration of fentanyl.

Even worse, however, and a point brought up by Nelson on cross-examination, these dead people were not necessarily people who died of fentanyl overdose—they were just people who died, who happened to also test positive for fentanyl.

Could they be people who were fentanyl users who had died not from fentanyl but because they’d been shot? Sure. Because they’d been in a car accident? Sure. Because they’d had cancer? Sure.

Did Isenschmit know what any of these people had died from? He did not.

Was it possible that of the 19,815 people whose positive fentanyl result was included in this graph, fully 19,814 of them had died of gunshot wound?

It was unlikely, Isenschmit replied. But of course, that’s not really the point.

If the presentation of this data is to suggest that Floyd’s 11 ng/ml was too low to have killed him, this data is in fact entirely useless for that purpose, but we’re not comparing apple to apples, fentanyl overdose death to fentanyl overdose deaths.

A second data presentation, this one in the form of a pie chart, was also presented, for much the same purpose:

This one purported to compare fentanyl concentrations found among people involved in DUI, on the one hand, and Floyd, on the other hand. Here the data representation was really remarkably disingenuous, particular in the manner in which data was sorted and organized within the pie.

I mean, look at that—about 10% of the people involved in DUI cases had fentanyl levels comparable to those of Floyd! And they were alive, driving cars! Surely that means Floyd’s mere 11 ng/ml of fentanyl could not have been a fatal dose!

Much like the chart above, however, the presentation of the data here intended to mislead. Before, we were presented with dead people who tested positive for fentanyl, but had to dig before we learned we had no idea whether they’d died of fentanyl or from some entirely unrelated cause.

Here we are presented with DUI cases, but guess what—we have no idea of any driver’s intoxication was the result of fentanyl or some entirely unrelated substance—meth, pot, even simple alcohol.

So, again, we’re not comparing apple to apples.

There is, of course, a fundamentally different flaw in all of this data presentation and that is that even if we had apples to compare to apples, all the apples are substantively different—so not even that comparison can be done.

If we had the identical fentanyl dose, and gave it to two different people, the physiological response could easily be wildly different, depending on their size, general health, developed tolerance to fentanyl or other opiates, and more.

But we never have identical fentanyl doses, because there’s no control for that in this data.

Some of these people were likely taking fentanyl lawfully prescribed by a physician for lawful purpose.  Others were taking prescription drugs, but unlawfully. At least those two populations have some idea of the dose they were ingesting, because they are consuming pharmaceutical grade fentanyl.

Many of those people, however, are consuming street fentanyl—and there are no Good Manufacturing Practices for street fentanyl.  No two pills are the same even physically characteristics, much less in their constituent chemistry.  When one takes a street fentanyl, one is taking an unknown dose of fentanyl, and one likely mixed with some other combination of illicit drugs, methamphetamine being a common pairing.

The direct of Isenschmit then stepped through a similar faux data representation in the context of methamphetamine, but I won’t bother dragging you through that here.

I will note, however, that it does appear that Floyd’s concentration of methamphetamine was rather low.  This raises the legitimate question of whether it could have had the “offset” function to counter the sedative effects of fentanyl as has been occasionally suggested by Nelson.  Obviously, the state’s witnesses play down that possibility, so having heard only them the theory appears tenuous. We won’t really have an informed understanding, of course, until we hear from the defense medical experts later in the trial.

Another issue raised by Eldridge on direct of Isenschmit was the ratio between fentanyl and its metabolite afentanyl.  So, when fentanyl is ingested we get an immediate level of fentanyl in the blood, and then over time the fentanyl is metabolized to afentanyl, which can also be measured.  If limited to that single dose, eventually the levels of fentanyl will drop as the levels of the metabolite afentynal will increase.

Floyd had significant levels of both fentanyl and afentanyl in his system. Eldridge argued from this that, hey, look, Floyd must have taken his last dose of fentanyl some time ago, because a bunch of it had already metabolized to afentanyl—therefore, given that the peak effect of fentanyl occurred five minutes after dosing, Floyd could not still have been under the effect of fentanyl when subject to arrest.

If Floyd had only just taken fentanyl moments before, there would have been no time for afentanyl to be present at such meaningful levels.

There is, of course, an entirely distinct and opposite interpretation of that same data, and it was one pointed out by Nelson on cross-examination.  What if we’re not talking about someone who took just a single dose of fentanyl, but rather someone who took fentanyl on a habitual basis—like, you know, a opioid drug addict like Floyd.

In that case we’d expect him to take fentanyl dose 1, fentanyl levels would quickly spike, then begin to drop as levels of the metabolite afentynal increased.  Left there, eventually fentanyl would go to zero, even as afentynal was increasing.

But what if the user than took a second dose of fentanyl—perhaps while fighting multiple officers in the back of a squad car, spewing partially chewed and spit-covered fentanyl tablets over the back seat of the vehicle in the process? Then we’d expect to see the afentanyl levels present for the metabolization of dose 1, but also high fentanyl levels present from the just-taken dose 2.

Nelson pointed out some of these data incongruities and metabolite deceptions in his cross of Isenschmit, but I’m pretty sure that he wasn’t a statistics major in college, and so it was difficult to substantively and clearly undermine Isenschmit’s presentation of these data and figures.

And even if Nelson had possessed the necessary statistical savvy, the effectiveness of deploying it would also be a function of the ability of the jury to absorb what was being said—and I expect there wasn’t all that much of that ability for much of this jury.

If all Isenschmit accomplished for the state was to throw some data and charts in front of the jury at the prosecution’s request, and created the inference that this meant the prosecution’s narrative on the role of fentanyl in Floyd’s death was supported by “the science,” he accomplished his mission for the state—at least, again, until the defense can bring their own medical experts before the jury.

Here’s the direct, cross, and re-direct of Isenschmit

Isenschmit Direct Questioning

Isenschmit Cross-Examination

Isenschmit Re-Direct

Dr. William Smock, Emergency Medical Physician, “Police Surgeon”

The next state medical expert witness, and the last of the day, was one Dr. William (“Bill”) Smock, an Emergency Medical Physician who claimed specialized training in forensic medicine.  Direct questioning was conducted by Prosecutor Jerry Blackwell.

Frankly, Dr. Smock struck me as a bit of a nut job.  He was portrayed by the state as having a substantive expertise in forensics.  In fact, a close reading of his self-stated background and qualifications suggests his expertise is much more akin to that of a hobbiest in forensics than actual formal expertise.

Further, he oddly informed the court that he engaged in “living forensics,” which he described as applying the same forensic techniques to living patients as was more routinely applied to corpses. I’m presuming that does not include autopsy.

Further, Dr. Smock is not board certified in forensics, has no degree in forensics, and has never been employed to do forensics.  Rather, he has “specialized training” in forensics.  This could simply mean that he has a personal interest in the subject and attends local continuing medical education courses in the subject. Oh, and he subscribes to a forensics science journal—though I note he did not say he actually reads it, he only said he “gets it.”

Like Dr. Tobin at the start of the day, Smock was present for the explicit purpose of sharing his expert opinion that Floyd’s death was the result of hypoxia induced by police restraint of Floyd, period.  And he did that.

Indeed, he stated outright at the start of direct questioning: “Floyd died of positional asphyxia from pressure to his chest, back, and neck.” Period.

He had as a second purpose to share his opinion that excited delirium could not have been a causal factor of Floyd’s death, and he spent considerable time during his direct questioning focused on this particular issue.

Specifically, he showed a list of 10 characteristics of excited delirium, announced that at least 6 of the 10 must be present for a diagnosis of excited delirium, and then concluded that in fact not a single one of the 10 characteristics could be found in Floyd—and thus excited delirium was off the table.

I found Smock’s testimony on this point to be really disingenuous, in that he would carefully cherry pick Floyd’s conduct from different points during the interaction with police until he found evidence that was contrary to a diagnosis of excited delirium—and then would choose the next example of Floyd’s conduct from a different point in the Floyd timeline entirely.  As a result, his portrayal of Floyd as not suffering from excited delirium was made up of a patchwork of different Floyd characteristics chosen from different points of time.

Here’s Smock’s slide with the 10 characteristics of excited delirium:

Note that one of these is “constant/near constant physical activity.”  In concluding that this characteristic was off the table in terms of a diagnosis of excited delirium that could have caused Floyd’s death, Smock pointed to the period very late in Floyd’s restraint and pointed out that he wasn’t moving much.

Well, of course he wasn’t—he was probably dead, or about to die. And that period of relative inactivity would be true of every single person who has ever died while experiencing excited delirium—once dead, they engaged in very limited physical activity.

Another factor is “unexpected/unusual strength.” In this context Smock claimed this characteristic was missing because Floyd wasn’t merely hurling the officers off him like the Hulk.  Of course, it’s also true that early in the confrontation Floyd managed to fight off four police officers attempting to place him in a squad car until they gave up the effort as futile. If that’s not remarkable strength, I don’t know what is.

I could go on with other characteristics, viewed from one perspective by Smock for the jury, but also readily viewed from an entirely different perspective by a reasonable commentator—but the truth is it doesn’t matter.

The legal question on the subject of excited delirium is not whether Floyd’s conduct and appearance actually met the clinical criteria for diagnosis as that would be applied by a highly trained and experienced physician with the appropriate background and education—you know, like Dr. Smock.

Rather, the legal question is whether a reasonable police officer could have believed that he might be dealing with a citizen suffering from excited delirium, thus warranting use of the police-trained response for that condition, which is full-body restraint, from head to toe, until EMS arrives with the ketamine.

It’s not important for legal purposes whether officers possessing such a believe are correct. It’s only important for legal purposes that the belief, even if mistaken, was reasonably and genuinely held, given the background, training, and experience of a police officer not even trained to EMS standards.

Whether a medical doctor making an evaluation with the luxury repeatedly watching a variety of videos from all different angles, the full medical history of the suspect, as well as the suspect’s autopsy and toxicology results, would have come to the same conclusion is entirely irrelevant to whether the officer’s conduct was reasonable and lawful.

Smock was also used to attack the defense theory that Floyd’s fentanyl concentration might have contributed to his death, and he did so in a genuinely ridiculous manner.

Why, Smock recounted, there was one time when Floyd was brought to the hospital after taking 7 or 8 fentanyl pills, and it didn’t kill him. Indeed, all they did was watch him for a while and then let him go.  (This was likely the year-earlier drug ingestion event by Floyd upon police contact.). Based on that experience, the notion that 11 ng/ml of fentanyl might have killed him on May 25, 2020 was ridiculous.

The flaws in this reasoning are obvious and numerous.

First, we have no idea if Floyd had a substantially higher tolerance at the year earlier event than he did on May 25. Indeed, we have reason to believe that his tolerance on May 25 may have been much reduced, based on the testimony of his co-addict lady friend that he had been “clean” for a lengthy period of time leading up to that date.

Second, on the year earlier event he’d consumed fentanyl and had a bad response, but there was a lot of things that he didn’t do like it was May 25, 2020. For one, he didn’t fight police for 10 minutes as they attempted to lawfully load him into a squad car, even as he was apparently munching on who knows how many fentanyl tablets in the process.  He also wasn’t subject to arrest and restraint for 10 minutes or so while officers waited for the EMS they’d summoned on “code 3” lights and sirens basis.

As has always been the case, it is most likely not that any single factor killed Floyd, but that all the factors, working in combination, killed Floyd—his fentanyl levels, his compromised physiology, his lawful restraint by police, his poorly made decision to fight four officers for a full 10 minutes, and more.

Nelson did an OK job on cross-examination of Smock, but Smock was an experienced expert witness who knew who was paying him $300 an hour, and given that opposing counsel isn’t actually allowed to argue with the other side’s expert witnesses, there’s only so much Nelson is able to do in cross.

Again, the real counterpunch from the defense can’t realistically be expected until the defense presents its own case in chief and calls its own medical experts on direct.  We’ve simply been spoiled in this trial with how skillfully Nelson has been able to routinely turn the state’s expert witnesses against them. That is not the norm, and ought not be expected.

In any case, there’s the direct, cross, and redirect of Smock:

Smock Direct Questioning

Smock Cross-Examination

Smock Re-Direct

Bottom line, the state finally had a non-implosive day at trial, which is just another way of saying that today was the normal kind of day one should typically expect with a prosecution preventing their case in chief.  It’s supposed to look good for them right now. That’s how it works. The state’s narrative is supposed to take its hits not during their own case in chief, but only after the defense gets their turn on the offensive.

OK, folks before I close out for the evening, I feel obliged to let you all know that I will not be covering the trial tomorrow, as I have been doing since jury selection began.  I’m afraid I have other obligations to attend to.  I will therefore leave you in the good hands of Professor Jacobson and the wonderful contributors and staff of Legal Insurrection.

But worry not, I’ll be back on the case come Monday!

Until then, 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.]



32 thoughts on “Chauvin Trial Day 9 Wrap-Up: Prosecution Has A Not-Bad Day With Medical Experts”

  1. I thought the defense should have objected to Dr. Tobin testifying as a use of force expert after he testified as a medical expert that there was no evidence of asphyxiation. His entire testimony was Floyd’s casuse of death is undetermined and his opinion based on the videos was that the officers were using deadly force, so mechanical asphyxiation must have been the cause of death. I didn’t was the other so called “experts.”

    As for the good doctor who normally geets $500.00 per hour, I thought that his volunteering to put as many hours as he did into this for free indicated he had an ax to grind and was gringing the hell out of it. Seemed to have a real smug look on his face when the questioning was finished.

    1. I completely agree with your assessment. And I agree that the doc who could have gotten $500/hour but decided to do this for free, he only wants to get his name out and become “famous”. He could care less about the truth.

      Dr. Smock acknowledged that “excited delirium” isn’t a recognized diagnosis, but then tried to fit what he saw on the videos (which he was able to watch over and over again) to his 10 points. However, if you watched the actual video, anyone who had heard of the “diagnosis” and had been trained in how to deal with it, all of the 10 points applied to Floyd.

      It’s so easy to come into court months after the actual event and claim things when you have the ability to look at all the “evidence” over and over again and say, “this is what happened”. However, when you are in the moment, it’s all different. I hope that’s one item Mr. Nelson will bring home when it’s his turn.

  2. Are you sure his previous hospitalization for an OD was a year before his death? My take from the GF’s testimony was that it was in March of 2020. I could be wrong, but if I’m not, it shows a man on a death spiral.

    1. Two different previous hospitalizations for OD, or at least that’s the way I remember it. The one a year ago was the same as this one, swallowing his stash when being approached by police officers.

      1. I haven’t heard about a second hospitalization for OD. From what I understand, the one his GF testified to was in March 2020 — less than two months before his death. I don’t know that LE was involved. Cahill did rule that the video from a prior arrest, where he also ate the evidence, will be allowed in a limited capacity. I think that was approximately a year before his death. I am thinking these two incidents are getting confused.

        1. You may be right. I was under the impression the police had to take him to the hospital when he swallowed his stash, but I could be wrong. And they may have taken him to the hospital, but the hospital didn’t list it as an OD.

  3. Nelson was furnished the notes of the meetings the night before? Does that include the rest of the documentation? The report? I thought that only happened in the movies! How do they get away with it?

  4. I was blown away to learn that materials had been given to the defense just the night before. That seems like a cheap shot, and we’ll probably have to wait for Nelson’s book to hear the whole story…but all’s fair in love, war, and the law I guess.

    I thought Tobin was a very solid, effective witness for the state. Couldn’t see the juries reactions of course, but he seemed to be engaging them directly. He fumbled around a bit with procedures, and seemed humble and likable, but he was obviously well prepared. Nelson was probably smart to just touch on his testimony briefly make some small points, and wait to attack his data and methods when somebody more friendly to his case was on the stand. i did think Nelson missed the opportunity to point out that Mr. Floyd was saying he couldn’t breath while standing.

    1. Maybe Nelson intentionally missed the opportunity. By missing the opportunity he didn’t give the witness the opportunity to explain it away to the benefit of the prosecution. Now when the defense expert address it, he doesn’t have to contend with the prosecution’s expert witness’s opinion to the contrary. It will look to the jury like the prosecution’s witness intentionally ignored it because it didn’t fit the prosecution’s narrative.

  5. Causing the death of George Floyd is the actus reus of all three crimes charged, so you really don’t want the state to be able to prove the actus reus beyond a reasonable doubt, but even if they do prove the actus reus beyond a reasonable doubt they still haven’t proven Chauvin guilty of any of the crimes charged.

    When we hear from the defense medical experts I expect we are going to hear a lot about noncardiogenic pulmonary edema and ARDS as cause of sudden death. All the evidence appears to be there. The state’s medical experts are just ignoring it.

    1. Big O,
      I agree it’s not the only hurdle the state has to clear, but it is a big one, and it’s much easier for an emotional jury hungry to convict to latch onto than complicated concepts the defense is going to use to make Chauvin’s action reasonable, if not perfect.

      I don’t disagree with your prediction about the defense using PE and ARDS, the more possibilities the better in casting reasonable doubt, but I’m on record as predicting that the defense is going to hone in on Wooden Chest Syndrome, or Thoracic Rigidity. It is the mechanism by which Fentanyl kills that doesn’t present with the coma like symptoms the State keeps referring to. I was cheering a bit to myself when Nelson got Tobin to admit he has knowledge of it, and that he recognizes how it could mimic Tobin’s stated cause of death without letting Tobin refute it.

  6. Dr. Smock strikes me as someone who is trying to make his own branch of medicine. He has no real forensic training, from what I could gather from when he talked about his credentials. He’s not even board certified in emergency medicine!

    The biggest problem I have with all 3 of these witnesses is they have the advantage of “Monday morning quarterbacking”. They can look at all the lab results, the videos, etc. over and over and over and then make some determination from there. As for the one doc who said he normally charges for his “expert” testimony but is doing it for free in this case, that automatically turned me off regarding him. He only wanted to get on TV and try to make a name for himself.

    Having been on the street as a Medic and in the hospital as a Nurse, none of these 3 struck me as anything other than simply saying what the prosecution wanted them to say. None of them impressed me at all. And no one on the jury, I’m sure, has that knowledge, so these three would sound knowledgeable and as if they were correct. However, with my background, I saw right through them.

    Another problem I have is the fact that the materials weren’t given to the Defense until the night before the witnesses were going to be on the stand. This is reprehensible and a play on the part of the prosecution. They have 12-15 lawyers on their side and could have had this information available a long time ago.

    1. I think the “are you doing this for free?” thing can be taken two ways.

      I remember Massad Ayoob describing a time when he was on the stand, and the lawyer asked him (rubbing his fingers together in the “dirty cash” sort of way) “how much do you normally get paid?”, which the answer was something like $100/hour.

      “And how much is the Defense paying you to be a witness?” He took this particular case for free.

      Incredulously, the lawyer asked “Really?!? Why are you doing that?”

      “Because this prosecution is an outrage! I’ve never seen such an outrageous miscarriage of justice as this!”

      The Prosecution tried to call “Objection” but the Judge overruled — after all, it was him who had asked the question!

      But this is as much a case of “Know the answers to the questions you are asking” as it is “Does providing your services for free help or hurt your case?”

      As for myself? I personally find it an outrage that a medical expert would be so certain about the things he’s confident about — to a ridiculous amount of precision! — than I do that he’s doing this work for free.

  7. Josephdemartino

    “He could discern precisely what was happening within Floyd’s body, despite there being no physical manifestation of those processes either while Floyd was alive or upon medical examination after Floyd had died. Indeed, he claimed to discern the exact moment that Floyd died, by the expression on Floyd’s face: ‘One second he’s alive, and one second he’s no longer.’”

    How do I get in touch with this doctor? I’ve had crippling pain in my left knee since last October. Despite repeated physical examinations, multiple x-rays an ultrasound and some nuclear medicine scan no one has been able to diagnose the cause of my problem and therefore treatment is a matter of guesswork. (Absent certainty, they’re prescribing Naproxen and Ibufrophen, since doctors are convinced the anyone prescribed a Vicodin tablet will immediately turn into a rock musician-level heroin addict and the feds treat any doctor who prescribes that or a Percocet tab as a schoolyard pusher.) I’ve got a half dozen doctors in my primary care office, urgent care and the local ER who have no clue why I’m in such pain, but apparently Dr. Tobin would be able to diagnose my problem if I sent him a cellphone video of me walking around my apartment with my cane. Anybody got his email address?

    1. LOL!! You are 100% correct in your assessment. That doc is an idiot to say that he could tell exactly what was happening. No doc in his right mind would say something along those lines. As a Nurse for over 30 years, I’ve never been able to tell any of these things from a cell phone video.

      Dr. Smock is a quack who wants to be a “forensic expert” but is not. He lied about fentanyl OD symptoms and ignored the fact that Floyd had meth along with the fentanyl in his system, which would complicate things and make his symptoms different from an “ordinary” fentanyl OD.

  8. Thank you for your updates they are very insightful. I do however disagree with you on one very important point. I do not believe the arrest of Floyd was in any way lawful. Passing a counterfeit bill, which I am sure you know is called uttering under the law, is the most specific of all of the specific intent crimes. The reason for this is that fake currency is in wide circulation according to the Secret Service. Meaning that it can be done unknowingly very easily. Doing this is reasonable suspicion for detention but not probable cause for arrest. You have to do some basic investigations first. In most cases we just write a report and send it off to the Secret Service unless we find the person has more counterfeit bills on their person or has priors for counterfeiting. Being under the influence of drugs also requires additional investigation. Frankly I think the officer saw a big highly agitated man and felt threatened so he wanted him in handcuffs, which in itself is fine because it eliminates or at least severely reduces the likelihood of a fight. I have done this myself numerous times. But Floyd should not have been transported. He should have just been sat on the curb and investigated further. Instead the officers just got sucked into his drama.

    Now maybe MN law is different then CA law which is where I worked, but I doubt that because in this case it’s all derived from federal law.

    1. Chauvin did not make the arrest. He was dispached to assist officers in making an arrest and as far as he is concerned, I don’t think it matters whether or not the arrest was lawful.

    2. Video and testimony leading up to this point has made it pretty clear it wasn’t just the fact that Floyd was trying to spend a forged $20 bill. It was the fact that he tried to intimidate the clerk to accept it, and that he refused to leave without the merchandise, and that he was acting rather crazy at the time, that all contributed to the clerk calling the police, and were among the factors that contributed to the police deciding to arrest Floyd.

  9. By far the vast majority of overdoses were a person who had a history of drug abuse but then got clean. When they fall of the wagon they use the same dose that they last used which is now way too strong for them. This is based on my career in LE not actual research on my part. But in LE when we have an OD and we here the family saying “He got clean and has been for months,” we always look at each other and nod, “Yep, another one”

    1. Paul,

      I think the justification for arrest might have come from the 911 call that said the suspect was under the influence, and that the suspect was trying to drive away but couldn’t, followed by the officer’s finding Mr. Floyd behind the wheel of a vehicle and acting in a way he could articulate as under the influence. I’m a layman, but that is what I assumed looking at the info released to the public.

        1. David,
          As a legal matter, the proximate cause of floyd’s death is one thing, and the reasonable use of force that did or did not cause his death is another, given what the officer knew and experienced at the time vis a vis Garner

  10. My problem with Dr. Tobin doing all of this for free is it really matters to me what his motivation is. I had a business law professor who always liked to refer to expert witnesses as “expert prostitutes.” (This was may years ago). So, I’m naturally skeptical of paid experts.

    But the explanation for why he did this for free wasn’t really well explored. I would ask him “Why did you take this case pro bono?” You obviously aren’t doing it because the state lacks resources to prosecute this case. They have a small army of lawyers and support people dedicated to this and it is literally going to cost them millions. Did you just sit up one day and say “Hey, I’ve never been an expert witness on a criminal case before, so I better get my feet wet by making my debut in the criminal case of the century.” Really? You didn’t form an opinion in advance from all the publicity and then find yourself motivated simply by wanting to influence the outcome? Better to do it that way than to join the angry mob outside, I guess. But I still don’t trust this guy.

  11. I found an interesting paper that contradicts Dr. Tobin’s “expert” analysis. See “–webinar_handout_8.pdf” from 2018. Research conclusion reads “Single-officer double-knee techniques apply slightly more weight force than single-knee techniques. The Wisconsin single knee technique provides the least weight force of the single-knee techniques tested. Law enforcement officer body weight is irrelevant to applied prone-force weight with single-knee techniques. With double-knee restraint, it has a modest influence. Prone force weight—with various handcuffing techniques—is less than that demonstrated safe for breathing. Our data do not support the concept of restraint asphyxia.

  12. I watched Tobin’s testimony and I don’t want to have to watch that dog and pony show again. So, did anyone notice whether or not Tobin testified that it was his opinion that Chauvin’s use of force was “the but for cause” of Floyd’s death? And did he testify as to the degree of certainty of his “opinion” as to the cause of death?

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