Legal documents preview a courtroom battle to come.
Legal documents preview a courtroom battle to come.
T he death of George Floyd has receded from the news, but the legal wrangling continues. With the trial set for March, prosecutors and defense attorneys have been bickering about plenty of second-tier details: whether the officers involved should be tried together or separately, whether certain prosecutors should be taken off the case, whether the trial should be moved to another location, and so on. They have also offered a preview of the major points that will come up at trial — especially in a defense memo arguing that the charges against Derek Chauvin should be dismissed and the state’s response.
Easily the most controversial theory the defense has offered is that Floyd died of a drug overdose: i.e., that the fentanyl in his system and his preexisting health problems, not the police officer kneeling on him as he lost consciousness, ended his life. It is a theory that circulated widely even before it formally became part of the officers’ defense, for example in an American Spectator piece by the former prosecutor George Parry.
I find this theory unlikely, and it almost certainly won’t get the charges dismissed before trial. But if the case does go to trial next year, a jury will only need to find reasonable doubt to acquit the officers, and only one juror would need to find reasonable doubt to result in a hung jury (and possible retrial). So, let’s dig into the documents a little.
The Defense’s Argument
Chauvin’s lawyers paint a picture of Floyd as an unhealthy man who took a lot of drugs, showed clear symptoms of an overdose, and passed away with a “lethal dose of fentanyl” in his system. That Floyd had fentanyl and meth in his blood is not in dispute; what matters, under Minnesota homicide law, is whether the officers’ actions were at least a “substantial causal factor” in Floyd’s death.
It has long been clear that Floyd was inebriated during his confrontation with the police. In addition to the blood work, body-camera footage shows him acting erratically, and the initial call to the police reported that he seemed intoxicated. But the defense’s memo provides some more details on the situation, including testimony from other witnesses and specific symptoms that can sometimes be signs of an overdose.
A witness who’d spent the day with Floyd, for instance, reported that Floyd had a drug addiction, and that despite acting normal for most of the day, “after returning to the vehicle from Cup Foods, Mr. Floyd fell asleep in the driver’s seat of the car.” Said this witness, “it was so fast I look at him and I’m like all of sudden you know he’s just sleeping, he was sleeping.”
Such “nodding off” is one symptom of a fentanyl overdose. Floyd exhibited others as well. For instance, he foamed at the mouth and acted strangely, and he reported being unable to breathe even before the cops put him on the ground. What’s more, combining an opioid such as fentanyl with a stimulant such as meth, known as “speedballing,” can be particularly dangerous, though the amount of meth in Floyd’s system was relatively small.
The memo further draws attention to a white object in Floyd’s mouth that appears at one brief place early in the video but not otherwise. The defense suggests that Floyd may have been swallowing drugs, and notes that he admitted taking pills during a previous arrest in May of 2019.
Then, of course, there are the autopsy results, which showed Floyd to be in poor health, with heavy lungs, an enlarged heart, a positive COVID-19 test, and the sickle-cell trait. The defense memo also refers to the “11 ng/ml” (nanograms per milliliter) of fentanyl found in Floyd’s system as a “lethal dose,” and Hennepin County’s own medical examiner noted in documents released earlier that fentanyl has been observed to cause deaths at far lower levels.
The State’s Reply
At trial, I suspect a big part of the prosecution’s response to this argument will involve pointing out how odd a coincidence it would be for Floyd’s overdose to take his life precisely during the nine minutes when he was being held face-down with a knee on his neck. Even if the drugs would have killed him soon anyway, the officers can be found guilty if they unjustifiably shortened his life.
The state’s response contains several vivid descriptions of the event, including this one:
In the first five minutes Floyd was on the ground, he told the officers at least twenty times that he could not breathe. He told them nearly ten times that he was dying. And then he fell silent. He stopped moving. He stopped breathing. And the officers could not find a pulse. As Floyd lost consciousness, a crowd of bystanders pleaded with the officers. They told the officers they were killing Floyd. They screamed that Floyd had stopped moving. They alerted the officers that Floyd had stopped breathing. And they begged the officers to take Floyd’s pulse. Nonetheless, the officers continued to pin him to the ground — with Chauvin kneeling on Floyd’s neck, Kueng on Floyd’s back, Lane on Floyd’s legs, and Thao standing watch to prevent the bystanders on the sidewalk from approaching the other officers and Floyd.
All told, the officers held Floyd in that position for approximately nine minutes — about five times longer than the national anthem, and four times longer than President Lincoln’s Gettysburg Address. During that time, Chauvin continued to kneel on Floyd’s neck for about four minutes after Lane told the other officers that Floyd was “passing out,” and for two and a half minutes after Kueng said Floyd did not have a pulse. Indeed, he continued to press his knee into Floyd’s neck for a full minute after emergency medical personnel arrived on the scene, and even while emergency personnel tried to check Floyd’s pulse.
Prosecutors further argue that, by the time the cops arrived, Floyd was not acting like someone in the middle of an overdose: “Floyd was lucid throughout his interactions with the officers. He was compliant and conversant when officers pulled him out of the squad car, and he was wide awake and fully communicative as the officers attempted to stuff him into the back of the squad car.”
And that white object? Probably spittle or chewing gum, because “Floyd had spittle in or around his mouth at other points during the incident . . . and surveillance videos appear to show that he was chewing gum earlier that evening.”
The prosecution’s filing also downplays the relevance of the fentanyl found in Floyd’s blood. These measures are of limited use, because “fentanyl levels in the body increase significantly after death,” a user’s tolerance affects how dangerous a given dose is, and different labs often come up with wildly different estimates of the amount of the drug present in someone’s system. In other words, you can’t tell a “lethal dose of fentanyl” from blood work alone. That’s why the Hennepin County medical examiner didn’t rule Floyd’s death an overdose, despite noting that if someone died alone, at home, with 11 ng/ml of fentanyl in his system and no other apparent explanation for his death, you could rule it an overdose.
There’s also a more technical argument here regarding Minnesota law’s treatment of “superseding causes” that “break the chain” of causation leading to a death. Such causes — in this case, the alleged fentanyl overdose — have to occur after the defendant’s actions and must be the sole cause of death.
But perhaps most damaging of all, the prosecutors note that the medical examiner ultimately ruled the death a homicide involving “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” The Armed Forces Medical Examiner System, asked to review the case, agreed the death was a homicide, adding that the “subdual and restraint had elements of positional and mechanical asphyxiation.”
If the prosecution’s experts can competently explain why they’re confident in these findings at trial, it will help the case a lot. And of course, the strength of any experts defending the overdose theory will cut in the other direction. We’ll know more about where things are headed once the trial starts, but the medical examiner’s ruling of homicide is already shaping up as one key bone of contention between the two sides.