George Floyd

Although a Defense Witness Says George Floyd's Death Should Not Have Been Deemed a Homicide, His Account Underlines Derek Chauvin's Culpability

The defense rested without calling Chauvin to the stand, and closing arguments are expected on Monday.

|

To avoid a murder or manslaughter conviction, Derek Chauvin needed to undermine at least one of the two pillars supporting the prosecution's case: that the former Minneapolis police officer used excessive force against George Floyd, and that Floyd died as a result. Barry Brodd, the defense's use-of-force expert, took aim at that first claim on Tuesday, but his testimony was unconvincing and in some respects utterly implausible. While forensic pathologist David Fowler did a better job of contesting the second claim in his testimony yesterday, even his account is consistent with a causal link between Chauvin's actions and Floyd's death.

The defense rested its case today without putting Chauvin on the stand, and closing arguments are scheduled to begin on Monday. Chauvin's testimony could have illuminated his reasoning when he kept Floyd pinned facedown to the pavement for nine and a half minutes, although it would have left him open to a potentially brutal cross-examination focusing on the justification for that prolonged prone restraint. But even the defense's medical testimony left little doubt that the use of force against Floyd, whether or not it was legally justified, caused his death.

The prosecution's medical witnesses all agreed that Floyd's death was properly classified as a homicide, even when they differed on the details. Fowler, by contrast, said he would have listed the manner of death as "undetermined," noting Floyd's heart disease, his drug use, and even his possible exposure to carbon monoxide from a patrol car's exhaust while he was pinned to the pavement. Fowler, who worked for the Office of the Chief Medical Examiner in Maryland prior to his retirement, thinks Floyd died from "a sudden cardiac arrhythmia" unmediated by the impeded breathing that the prosecution identifies as the primary cause.

Yet if Floyd was exposed to vehicle exhaust, which Fowler said may have contributed to his cardiac arrest, it was only because of the prolonged prone restraint, which was also responsible for the "very stressful situation" that Fowler said was another factor. So Fowler's account is consistent with the proposition that Floyd would have survived this encounter if Chauvin had handled it differently, meaning that Chauvin's actions were the but-for cause of Floyd's death.

"In my opinion," Fowler said, "Mr. Floyd had a sudden cardiac arrhythmia…due to his atherosclerotic and hypertensive heart disease…during his restraint and subdual by the police." He added that "his significant contributory conditions," in addition to heart disease, included the fentanyl and methamphetamine Floyd had ingested and "potentially carbon monoxide poisoning" from "exposure to a vehicle exhaust." But Fowler also noted that Floyd's restraint created "a very stressful situation," which "increased his fight-or-flight-type reaction," resulting in a surge of adrenaline that would have strained his cardiovascular system. Fowler even conceded that if that reaction caused Floyd's death, it "would be considered a homicide."

During cross-examination, prosecutor Jerry Blackwell questioned Fowler's suggestion that car exhaust may have contributed to Floyd's death, noting that there was no evidence concerning how much carbon monoxide Floyd might have inhaled and that the autopsy report said nothing about this possibility. He also asked Fowler, "How do you know the car was even on?" Fowler said he reached that conclusion by observing what appeared to be water dripping from a tailpipe in video of Floyd's arrest. But he agreed that he never confirmed the impression that "the vehicle was running" with anyone who would have known.

Chicago pulmonologist Martin Tobin, whom the prosecution called back to the stand today as a rebuttal witness, disagreed with Fowler's suggestion that vehicle exhaust could help explain Floyd's death, saying that theory is inconsistent with testing of Floyd's arterial blood. He also took issue with Fowler's statement that he could not find research to support Tobin's conclusion that the pressure Chauvin exerted on Floyd would have compressed the lower part of his throat, further impeding his breathing. Tobin said there is "extensive" research on that subject "in the physiological literature."

Fowler questioned the prosecution's claim that "positional asphyxia" killed Floyd, saying "there is no evidence right now" that "the prone position by itself" is "a significant issue." But in addition to lying on his stomach, Floyd was handcuffed behind his back, and he was pressed against the pavement by the weight of Chauvin's body and equipment. Chauvin had one knee on Floyd's neck and the other knee on his back or arm, while Officer J. Alexander Kueng applied pressure to his back and Officer Thomas Lane held his legs. According to the prosecution's witnesses, all of those factors would have made it harder for Floyd to breathe, as reflected by his repeated complaints to that effect. And as Blackwell noted, Floyd had just struggled with Kueng and Lane when they tried to force him into their patrol car, and that exertion likely would have increased his need oxygen. During his testimony last week, Tobin gave a detailed explanation of how the prone restraint would have impaired Floyd's ability to get enough oxygen to stay alive.

Notwithstanding his disagreement about the manner of death, Fowler's medical conclusion is pretty close to what Hennepin County Chief Medical Examiner Andrew Baker said last week, when he testified that the use of force against Floyd fatally interacted with his "very severe underlying heart disease." But Baker, like the other medical experts who testified for the prosecution, is confident that "law enforcement subdual, restraint, and neck compression" caused Floyd's "cardiopulmonary arrest," which is why he described the incident as a homicide. "I would still classify it as a homicide today," Baker said.

Baker did not mention asphyxia in his autopsy report. But as Blackwell noted, citing a forensic pathology textbook, "the majority of cases where someone dies of asphyxia are very subtle," and "no traumatic manifestations are visible at all," meaning "there isn't necessarily any physical evidence on autopsy of what it is that caused the low level of oxygen." And during his testimony, Baker did not rule out the possibility that impaired breathing contributed to Floyd's death, saying, "I would defer to a pulmonologist."

Tobin, the prosecution's pulmonologist, concluded that "Floyd died from a low level of oxygen" caused by impeded breathing, which ultimately "caused his heart to stop." Tobin said even a perfectly healthy person would have died in these circumstances.

All of these scenarios—including the one described by Fowler—are consistent with the allegation that Chauvin killed Floyd. The relevant question is not whether other factors may have played a role in Floyd's death but whether he would still be alive but for Chauvin's actions.

In addition to faulting Chauvin for the prolonged prone restraint, the prosecution noted that neither he nor the other officers performed CPR after Floyd became unresponsive and no longer had a detectable pulse. Fowler acknowledged that "immediate medical attention for a person who has gone into cardiac arrest may well reverse that process." He said "as a physician, I would agree" that Floyd should have received aid right away.

NEXT: Is Stephen Breyer About To Retire? His Clerk-Hiring Spree Suggests Otherwise.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. ‘Culpability’ – in other words, not premeditated murder.

    Chauvin had a 98% blood oxygen saturation level – he wasn’t being choked by a knee ON HIS BACK.

    Fuck off, Sullum.

      1. JOB FOR USA Making money online more than 15$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings are much sdf better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
        on this page…..VISIT HERE

    1. Making money online more than 15$ just by doing simple works from home. I have received $18376 last month. Its an easy and simple job to do and its earnings are much better than regular office job and even a little child can do this b hjgyuand earns money. Everybody must try this job by just use the info
      on this page…. Visit Here

    2. The irony was that statement was made after the prosecution entered new evidence in the rebuttal from Dr. Tobin after the Judge warned them that if they did it would lead to a possible mistrial.

      What sullum also ignores is the defense ME pointing out there was no bruising anywhere, the shoulder blade and location of his knee was on a hard ligament, and Dr. Tobin was wrong to say there was tracheal obstruction.

      1. Also brought forth testimony that about 8% of people sleep in a prone position, further diluting Dr Tobin’s analysis.

    3. This is worse than Pravda
      Sullum has mischracterized and miseditorialized every single second of this trial. There are in the bag lefty woke outlets doing a better job of covering this trial

      1. Yeah, you’d think it was Trump on trial for all the effort Sullum is putting into the spin here.

        -jcr

    4. Most people do not sleep on the pavement with their arms in handcuffs behind their backs and a strong police officer compressing their neck and back. The nice comfy mattress moves and you can wrap your arms around a pillow which takes pressure off your upper chest and airway. People move around when they sleep.

      The high O2 sat which would have been taken after ventilation with high level of oxygen discounts the CO hypothesis. CO kills you by tightly binding to hemoglobin and myoglobin so the blood cells cannot carry oxygen. Even with ventilation the pO2 stays low.

      Furthermore he did not say trachea which is a rather rigid structure. He said hypopharynx which is mobile mucosal tissue above the trachea. It is why people (and my dog) snore or get sleep apnea. The hypopharyx partially obstructs. So if the pressure is from a harder structure above and below what happens to the softer tissue in between. Actually big guys like Floyd are more prone to those kinds of issues.

      He explained all of this in his testimony. Floyd had four things working against him. The upper airway, the up and down movement of the chest, the side to side movement of the chest, and the inability to use his arms to relieve the pressure.

      The problem was he simply could not move enough air.

      First rule of life. Air goes in and out. Blood goes round and round.

      I offer these opinions as a rebuttal to some of the points made here.

      1. Had to laugh reading this:

        “Floyd had four things working against him. The upper airway, the up and down movement of the chest, the side to side movement of the chest, and the inability to use his arms to relieve the pressure.”

        Thought for sure the four things were meth, fentanyl, pot, and enlarged heart.

      2. Man, you really hope they pick you to pull the switch.

        1. And you sound like a defense witness rather than an impartial observer of the trial news.

      3. You left out his heart condition and the lethal level of drugs in his system.

      4. “ The problem was he simply could not move enough air.”

        If he wasn’t moving enough air, his blood oxygenation level wouldn’t have been that high. The heart stops during suffocation when the heart muscles no longer receive enough O2 to operate (cellular respiration: O2 combines with glucose to generate CO2, H2O, and the energy for cells to operate).

        If the prosecution expert witness hadn’t been lying through his teeth about the cause of Floyd’s death, his O2 blood level would have been below the point where cellular respiration was affected. It apparently wasn’t, and indeed, was much higher than I usually experience myself (typing this, with my heart beating merrily on).

    5. Single Mom With 4 Kids Lost Her Job But Was Able To Stay On Top By Banking Continuously $1500 Per Week WD With An Online Work She Found Over The Internet. Check The Details HERE…. Visit Here

    6. Why is *Chauvin’s* blood oxygen level relevant?

      1. Actually, take that back. I know you made sort of a typo, but it does being up the question — if the cars exhaust pipe were cranking out so much exhaust that it contributed significantly to asphyxiation of Floyd, wouldn’t it have affected the police officers, too.

      2. Death by suffocation occurs either when the blood isn’t circulating the blood to the body, or the blood being circulated has insufficient O2, which ultimately causes the heart to stop beating. But the evidence in the trial is that the O2 level was more than sufficient to support muscles, like those in the heart, continuing to operate, so that lack of O2 could not have been the case of the heart stopping. That means that neither the back compression, nor the CO level resulting from the car’s exhaust, could have been the primary reason for the heart stopping, since both would have evidenced a lower O2 level. Which brings us back to the one thing that we know will stop a heart with adequate O2 levels: a fentanyl OD.

    7. So what, NONE of the charges are premeditated murder. the Man charge requires Death because of carelessness, or disregard for someone else’s safety or well being. Pretty much guaranteed other then he’s a copper so only one person has to put his badge above George Floyd’s life and he gets off. The other charges require the commission of a felony which I am presuming is the manslaughter charger, and actions that would reasonably lead to death. Anyone other than a cop and yes pretty certain, but I think he might get off the murder charges due to his badge.

  2. Maybe Chauvin is guilty.

    And maybe – this would be nice – he has an impartial jury.

    I can’t rule anything out, at this distance from events.

    From what I know about Minneapolis, it seems like a nice enough city. Let’s see how much of it is left after a couple weeks.

    1. Due process is evil because individuals are evil.

    2. It isn’t nice. It was a few decades ago. Progressive thinking has killed it. The town that I Iive near has the same sized population and 1/4th the violent crime.
      Minneapolis recruited/attracted more “desired” voters by upping the welfare amounts. This attracted only the worst residents. They moved in droves from Milwaukee and Chicago for the freebies.

    3. If Chauvin is convicted and sent to the Big House for decades, the city will be fine. Less than that, and I expect it will start to look like Berlin in May 1945.

      1. If we send people to jail for political reasons wee would be closer to eastern Berlin.

        1. Well, at least sending *innocent* people to jail for political reasons would be like east Berlin.

  3. I think that they need to incorporate a “Don’t Resist” mascot to get the point across. They could start by visiting schools and instruct kids to just behave after committing a crime and getting arrested. It seems to me that the urban citizens are not getting the word, it could be a parenting problem. Maybe they can have a “Chuck, The Compliant Squirrel” mascot that could teach them that getting arrested isn’t the end of the world, but it could end your world if you resist arrest. “Hey Kids, just keep quiet and call a lawyer, fighting will get you a ride to the morgue”.

    1. Chuck the Compliant Possum

      1. How about Chuck, the Libertarian Tasmanian Devil?

        “Hey Kids, just say am I being detained? Am I free to go? Get a fucking warrant. I don’t own a dog.”.

        Nah, that might not have the desired effect.

    2. Are you also going to tell rape victims “don’t resist”? What about mugging victims? People about to be murdered? Even just kids being bullied? How about the mental health patients who can’t hear or understand that what they’re doing is “resisting”? At what point does “don’t resist” become serfdom?

      No. I reject that view of life. That is not the country I grew up in and that’s not the country I want to leave for my grandchildren. “Do it because a cop told you to and might kill you” is not an acceptable attitude in a just society. Some fights are worth fighting and, yes, worth dying for.

      You keep talking about this as a parenting problem. What are you doing about the parents who raise authoritarian thugs who think abusing citizens is okay? Who raised their kids with so little respect for life that they not only wouldn’t provide CPR but prevented others from doing so? Are you ever going to criticize those parents?

      Your blind deference to police authority is every bit as bad for society as the anarchism of the BLM riots.

      1. Are you also going to tell rape victims “don’t resist”? What about mugging victims? People about to be murdered?

        I had no idea they arrested crime victims.

      2. Your review is stupid. You should reject it, but you embraced it. You fight legal matters in the courts.

        1. your view*

      3. Under common law, you had the right to resist an unlawful arrest, even by a law enforcement officer. More recently, we’ve decided that it’s better for society overall if we don’t exercise self-help, but rather submit to the arrest, and challenge its lawfulness afterwards through the judicial system.

        But it sounds like you’re suggesting that people should be free to resist even lawful arrests, such as the arrest of George Floyd on grounds of reasonable suspicion that he was passing counterfeit currency.

        1. No, I am not arguing for the right to resist lawful arrests. I am, however, strongly arguing that the decision to not exercise self-help in the face of unlawful arrest is counter-productive, deeply mistaken and harmful to society in the long run. When nobody stands up to bullies, they just get worse.

          I suppose I am also arguing by implication that while Floyd’s initial stop was a legitimate arrest, it became unlawful when the police used unnecessary force.

          1. The bully, in this case, is the government that created and interpreted the law, not the cop. You’re tilting at windmills.

      4. “At what point does “don’t resist” become serfdom?”

        When you aid in the stealing of election(s)

      5. “At what point does “don’t resist” become serfdom?”

        When you jump on board the CRT bandwagon and aid the Global Socialist Wokers Party

      6. “At what point does “don’t resist” become serfdom?”

        When you reflexively “both sidez” every issue to death

      7. “At what point does “don’t resist” become serfdom?”

        When you use dogma like “muh private companies” to blind yourself to reality

      8. How about- If you are being arrested for committing a felony, do not resist, attack, or flee from the arresting officer.

      9. So, you’d let a cop shoot you just to make a point? That’s slightly insane, as is your general world-view.

    3. Lie back and think of elementary school.

    4. There are fewer police than, citizens, so it would be easier to train police not to abuse their power and trample all over peoples liberties than it would be to train everyone else how to tippy toe around cops high on the power of their badge. Besides in some cases you can apparently flee in your truck dragging a police officer along and beating him in the head with a hammer, and they would kill you.

  4. Gonna milk this aren’t you.

    1. That’s not a teat in his hands.

  5. I’ve been watching the trial, and analyses by several lawyers, closely. There is way more than enough reasonable doubt to acquit on all charges.

  6. ” So Fowler’s account is consistent with the proposition that Floyd would have survived this encounter if Chauvin had handled it differently,…”

    While this statement may be factual, I would also contend that the statement,” Floyd would have survived this encounter if Floyd had handled it differently,” is equally factual.

    I have always been under the impression that Libertarians believed in holding people accountable for their actions. Chauvin has some responsibility in Floyd’s death, but so does Floyd.

    1. The woke cuck sullum has never once reported on the highlights for the defense, or even made an attempt at impartiality. He bleated Chauvin was guilty of murder from the very beginning, and by God he is sticking to his story.

    2. Floyd’s responsibility ended once he stopped resisting, at that point he was already in hand cuffs, no longer a threat, and was in a position he can be easily controlled. At that point Chauvin was responsible, to look after George Floyd. Chauvin meets the requirements for Man Slaughter by not showing the slightest regard for Floyds life, and meets the Murder charges when Floyds Pulse stopped but no First aid was provided. Resisting arrest is not a death penalty crime, and Police should no longer be judge jury and executioner.

      1. Well, no. He was much bigger than any of the cops involved, and they on occasion have to deal with arrestees who play possum, then when the cop looks the other way, all of a sudden wakes up, throws the cop off, and escapes, or even grabs his gun and uses it. How did the cops on the scene know that he was really out, or just pretending? A doctor might know. Maybe a nurse or a paramedic. But a cop with minimal medical training?

      2. He did show regard for Floyd’s life. He positioned Floyd such that he would not aspirate his own vomit (esp possible with a narcotic OD) (which is why he was positioned on his side) and an ambulance was called. The cops then upped the priority of the ambulance to Code 3, when Floyd’s condition deteriorated.

        You seem hung up on whether the cops provided as much care as they possibly could. But that isn’t the standard here. Rather, it is whether they provided enough care to meet their legal duty to Floyd. After having watched a medical malpractice case, where inferior care was provided, but it wasn’t legally insufficient, the standard for medically untrained cops has to be lower than that for licensed MDs, and it isn’t clear that the run-of-a-mill MD would have kept Floyd alive here.

Please to post comments

Comments are closed.