Prosecutors got to call back one of their medical experts to rebut a theory that George Floyd suffered from carbon monoxide poisoning before the jury was sent home for the weekend.
MINNEAPOLIS (CN) — Derek Chauvin’s defense attorney rested his case Thursday in the former Minneapolis police officer’s murder trial for the killing of George Floyd after Chauvin himself declined to testify, invoking his Fifth Amendment right against self-incriminating testimony.
Chauvin, who was filmed last Memorial Day kneeling on Floyd’s neck for upwards of nine minutes, faces second- and third-degree murder charges and a manslaughter charge for the Black man’s death. Floyd’s death sparked protests on a massive scale, along with rioting, looting and arson, in Minneapolis and then around the world in May and June of 2020.
Chauvin affirmed in court that he’d talked the matter over extensively with defense attorney Eric Nelson, and understood his right to decide independently whether or not to testify. He said he did not wish to, and approved a proposed jury instruction notifying jurors that declining to testify should not be considered as evidence for guilt.
The defendant’s brief discussion of the issue was the longest he’s spoken in court thus far. In the month since jury selection began, he has spent much of his time in court writing on a legal pad and only occasionally looking up from it.
The trial was not quite over after Eric Nelson rested his case. Prosecutors got a chance to recall one of their expert witnesses, pulmonologist Dr. Martin Tobin, to rebut part of Wednesday’s testimony from defense expert Dr. David Fowler, a forensic pathologist and retired medical examiner for the state of Maryland.
Fowler raised a novel theory in his opinion of Floyd’s cause of death, saying that lying near the exhaust pipe of a running police squad car could have added carbon monoxide toxicity to the mix of factors he said may have caused Floyd’s heart to stop. Fowler said he believed that Floyd died of a cardiac arrhythmia, influenced by drug toxicity and potentially other factors, and that he would have ruled Floyd’s manner of death to be “undetermined.”
Tobin testified last week, detailing his reasons for believing that Floyd died of asphyxia brought on by Chauvin and two fellow officers’ prone-position hold on him. Prosecutors argued Wednesday that they hadn’t had sufficient notice of the carbon monoxide line of thought, and Judge Peter Cahill allowed for reexamination of Tobin for his opinion on it.
Cahill barred the state from also introducing test results on Floyd’s blood carbon monoxide levels offered up Wednesday night by Hennepin County Medical Examiner Andrew Baker, saying that it was just a little too convenient.
Attorney Jerry Blackwell said Baker had offered the data to the prosecution team after watching Fowler’s testimony, and hadn’t thought to include it in earlier disclosures. Cahill found that fishy.
“I’m not claiming any bad faith on the state’s part, but it seems odd that HCMC, when they’re asked to turn over all of their records, that they don’t include records that were just buried a little deeper,” the judge said, referencing Hennepin County Medical Center, the hospital where Floyd was pronounced dead. He suggested that if this was possible, HCMC might want to take a second look at its disclosure practices more generally.
Cahill decided to allow Tobin to testify, but not to mention the new records. He drew a firm line on that. “If [Tobin] even hints that there are test results the jury has not heard about, it’s gonna be a mistrial. Pure and simple,” he said.
On the stand, Tobin said he disagreed with Fowler’s suggestion that Floyd’s blood could have contained between 10 and 18% of the gas, known for causing headaches, confusion, nausea, unconsciousness and even death. He noted that Floyd’s blood oxygen level was 98%, leaving only 2% available for carbon monoxide.
“When the carbon monoxide binds to the hemoglobin, it displaces the oxygen off the hemoglobin,” Tobin said. “It takes it over.” He added that at any given moment, a person’s carbon monoxide level is usually between 0% and 3%.
The court took a break after the state’s direct examination of Tobin. Nelson declined to cross-examine him, and Cahill dismissed the jury until closing statements, scheduled for Monday.