Maryland’s former chief medical examiner testified that George Floyd died of an irregular heartbeat after the judge declined to acquit the officer who knelt on the Black man’s neck.
MINNEAPOLIS (CN) — A Hennepin County judge declined to acquit Derek Chauvin or to require George Floyd’s friend to testify on Wednesday morning, leaving Chauvin’s attorney to spend the remainder of the morning on direct examination of his first expert medical witness.
Defense attorney Eric Nelson moved for acquittal first thing Wednesday morning, arguing that prosecutors’ case against Chauvin was contradictory and inadequate. Differences between the prosecution witnesses on when Chauvin’s use of force on Floyd became unreasonable and on his cause of death, Nelson said, created sufficient reasonable doubt to torpedo the charges.
“The two [use-of-force] experts that the state has presented, Jodi Stiger and Seth Stoughton — they even disagree with each other,” Nelson said. He also pointed to testimony about use of force by police department leadership like Chief Medaria Arradondo and a homicide lieutenant, Richard Zimmerman, as contributing to these varied standards.
“While they all ultimately said it was objectively unreasonable at one point, the question is, when did it become? And we have six or seven different opinions on that,” Nelson said. “The state has essentially introduced doubt in the context of presenting multiple opinions, multiple experts, all of which seem to contradict each other.”
He also noted differences among the state’s medical experts and witnesses, pointing out that several expert witnesses attributed Floyd’s death to asphyxia while Hennepin County Medical Examiner Dr. Andrew Baker said Chauvin’s restraint was “too much” for Floyd’s heart.
Prosecutor Steve Schleicher said that Nelson’s argument missed the forest for the trees. “The issue is not whether there are inconsistencies, minor inconsistencies, in what witnesses say. The issue is whether, taken as a whole, the state has proved its case,” he said.
“The witnesses who have testified have all opined that the defendant’s use of force was objectively unreasonable,” Schleicher continued. “He was not trained to do this by the Minneapolis Police Department, he did not follow policy, he did not follow procedure, and the force that he exercised was unnecessary under the circumstances and simply continued on too long.”
He also noted that the medical testimony, while varied, agreed across the board that Chauvin played some role in Floyd’s death.
Judge Peter Cahill quickly denied Nelson’s motion, saying that any inconsistencies were for the jury to evaluate.
“The court’s duty at this point is to look at the evidence in the light most favorable to the state, and even when there are inconsistencies, major or minor, between witnesses, the jury is free to believe some and not the others,” the judge said.
He then moved on to another hot-button issue in the case: the possibility of testimony from Floyd’s friend Morries Hall, who was with him on the day of his arrest.
Hall asserted his Fifth Amendment right against self-incriminating testimony, but Nelson has argued that he should be able to testify on a narrow basis. Public defender Adrienne Cousins, representing Hall, agreed in a recent hearing to review a list of proposed questions with Hall and determine whether or not they raise Fifth Amendment concerns for her client. On Wednesday morning, she told Cahill that all of those presented a potential threat to Hall.
Cahill zeroed in on questions about Floyd’s appearance in the SUV from which police eventually took him, since he’d previously given tentative approval to those queries. Cousins said that even admitting to being in the car could open Hall up to criminal liability.
“Mr. Hall cannot put himself in that car with Mr. Floyd. Again, this is a car that was searched twice, and drugs were found twice,” Cousins said, arguing that put her client at risk of a possession charge and possibly worse. “We discussed this at the last hearing, judge, but there’s a potentially third-degree murder liability here, under that overdose statute, which is very broad.”
Cousins was referring to Minnesota’s third-degree murder statute, which imposes criminal liability for anyone who “directly or indirectly, unlawfully selling, giving away, bartering, delivering, exchanging, distributing, or administering a controlled substance” to someone who subsequently dies.
Cahill agreed with Cousins’ reasoning. “Counsel’s argument is persuasive that that could provide a link,” the judge said of potential testimony confirming Hall’s presence in the car. He asked both parties to file their proposed questions of Hall as an offer of proof and dismissed him from the case.
With those issues settled, testimony proceeded with Nelson’s first medical expert, retired Maryland chief medical examiner Dr. David Fowler, who presented the opinions of 13 members of The Forensic Panel, a company that frequently provides expert witnesses for cases against police officers. Fowler began his career in South Africa in the 1980s before coming to Baltimore in 1991, and spoke with an accent as he explained the myriad factors he believed led to Floyd’s death.
“Mr. Floyd died of a cardiac arrhythmia, due to hypertensive, atherosclerotic cardiovascular disease during the restraint,” he opined. Complicating factors, he said, included “the substances, the fentanyl and the methamphetamine, the potential of a carbon monoxide role, and the potential that [a tumor] was adding adrenaline to this whole mixture, making things even worse.”
Fowler’s testimony included the first thorough discussion of a new argument in favor of Chauvin: the idea that carbon monoxide poisoning from the police squad car’s exhaust contributed to Floyd’s death. The possibility was alluded to at one point during the state’s case, when prosecutors asked Minnesota Bureau of Criminal Apprehension investigators about the fact that the car was a hybrid, and did not always have its gas engine running even when the car is on.
Fowler pointed out that carbon monoxide does not always show up on blood screenings like one that measured Floyd’s blood carbon dioxide levels. Floyd’s proximity to the squad’s exhaust car may have been a contributing factor, he said, although he clarified that it wasn’t a major one.
He instead cited Floyd’s enlarged heart, history of hypertension and drug use as the primary drivers of what he believed to be an arrhythmia, when the heart beats too fast, too slowly or with an irregular rhythm.
With that in mind, he said, ruling the death a homicide, as Dr. Baker had, would be difficult. “I would fall back to undetermined, in this particular case,” Fowler said.
Nelson examined Fowler all morning, up to a 12:30 p.m. lunch break. On cross-examination, prosecutor Jerry Blackwell took nearly as long, quizzing Fowler on his affiliations and past work along with his findings in this case.
In one tense moment, he asked about Fowler’s contention that Floyd had undergone cardiac arrest as a result of an arrhythmia. Fowler confirmed that that was his stance.
“Do you feel that Mr. Floyd should have been given needed emergency attention when he went into cardiac arrest?” Blackwell asked.
“As a physician, I would agree,” Fowler answered after a pause.
Fowler is facing civil litigation in Maryland for a similar case. The family of Anton Black, a Black man who died in police custody in 2018, has accused Fowler of helping police cover up his death.
Black, like Floyd, was pinned to the ground by Ridgely Police Chief Gary Manos for several minutes. Like Floyd, he stopped moving before the chief got off of him and was pronounced dead at the hospital. Unlike Floyd, officers initiated CPR on Black at the scene.
Fowler cited an underlying heart condition as causing a “sudden cardiac death” and ruled Black’s death an accident. None of the officers involved in his arrest were charged.