We have reached a dangerous pass if people are to be deterred from testifying on the ‘wrong’ side of politically fraught cases.
We have reached a dangerous pass if people are to be deterred from testifying on the ‘wrong’ side of politically fraught cases.
A disturbing trend is forming in the aftermath of the Derek Chauvin verdict.
A second expert witness — Dr. David Fowler, an internationally renowned forensic pathologist who served for years as Maryland’s chief medical examiner — is now being subjected to harassment and defamation for having had the temerity to testify in the ex-officer’s defense case. Maryland’s attorney general has announced an investigation of 17 years’ worth of Dr. Fowler’s cause-of-death reports for “in-custody” cases. The state government was pressured to take action against Fowler by a letter signed by 431 doctors. That effort was led by Roger A. Mitchell, a former medical examiner and current deputy to Muriel Bowser, the ultra-progressive Washington, D.C., mayor and Black Lives Matter enthusiast.
The complaints against Fowler are based on distortions of his testimony. He did not, as the Baltimore Sun reports, claim that Chauvin bore no responsibility for George Floyd’s death. Nor did he, as the New York Post reports, testify that the cause of Floyd’s death was merely his inhalation of “exhaust fumes,” in combination with other medical problems.
Fowler testified that Floyd’s death resulted from a dynamic array of causes, which included the police-restraint tactics (along with the adrenalized excitement of resisting arrest), Floyd’s profound cardiac problems (including an enlarged heart, hypertension, and major arterial narrowing near the aorta), years of drug abuse culminating in his recent ingestion of fentanyl and methamphetamine, potential effects of a tumor found in his pelvis (a paraganglioma), and the likely inhalation of a nontrivial amount of carbon monoxide. Floyd, it was further noted, had been diagnosed as COVID-19 positive a month before he died.
Fowler’s assessment was not substantially different from the conclusion of Hennepin County medical examiner Andrew M. Baker, as outlined in Baker’s autopsy report. Indeed, on the death certificate, Dr. Baker described the immediate cause of Floyd’s death as “cardiopulmonary arrest complicating law enforcement subdual, restraint and neck compression.”
At Chauvin’s trial, Baker testified that he used “complicating” in a literal, medical sense, describing factors “occurring in the setting of” other factors. He also determined that Floyd’s “arteriosclerotic and hypertensive heart disease, fentanyl intoxication, [and] recent methamphetamine use” were “contributing conditions” in his death.
The main difference between the two pathologists was legally irrelevant, though it has been misleadingly portrayed as significant. Baker concluded that the “manner” of Floyd’s death was homicide; Fowler said he would have considered the manner inconclusive.
During the trial, all of the medical experts who were asked about this point agreed that the conclusion about manner of death, which states require to be listed on death certificates pursuant to CDC guidance, is a medical conclusion. It is not a criminal-law determination. For autopsy purposes, “homicide” means death primarily caused by another person. It is not a legal conclusion that the other person murdered or even negligently killed the decedent, or that factors besides the other person’s actions were irrelevant (which, plainly, is why Baker ranked Floyd’s cardiopulmonary arrest as an important factor, and his heart disease and drug abuse as contributing factors).
Fowler, by contrast, said he could not conclude that the police restraint was a more material causal factor than Floyd’s coronary issues, drug abuse, and other medical problems. To repeat, this is just a medical opinion. The forensic pathologists, like other medical experts, were competent to testify only about medical conclusions in their area of expertise. (Here, I am using “competent” in the legal sense — meaning they had an adequate knowledge basis to provide admissible testimony on some relevant issue.) They were not qualified to render a legal judgment about whether Floyd had been murdered, or whether the culpable negligence of the police caused his death.
Chauvin’s trial is a classic illustration of why this must be the case. As the forensic pathologists conceded, low oxygen — the cause of death found by Dr. Martin Tobin, the state’s expert pulmonologist — is not a condition that leaves internal signs apt to be detected by forensic pathologists. That is why the latter acknowledged that, if they had not learned of videos documenting Floyd’s restraint by the police, they probably would have concluded that he’d died of a drug overdose that exacerbated his underlying medical problems. Forensic pathologists do not deal with living patients; they are presented with a corpse and make deductions. Here, the videos enabled all of us, including the jury, to see Floyd gradually die, and to assess how and why that happened.
What’s more, in light of the legal definition of “causing death,” the jury could have accepted Fowler’s testimony and yet still have found that the police restraint and subdual caused Floyd’s death. Indeed, that is probably what the jury did.
As Judge Peter Cahill instructed Chauvin’s jury, to cause death means that an accused’s actions were “a substantial causal factor.” They need not have been the only causal factor, and they can have interacted naturally with other causes. Consequently, if Floyd’s cardiopulmonary problems contributed to Floyd’s death because they were exacerbated by the police-restraint tactic — the extended duration of subdual in the prone position while putting pressure on Floyd’s back and neck — then Chauvin was still culpable.
In the cross-examination of Fowler, and in some of their comments in summation, prosecutors distorted his testimony about carbon-monoxide inhalation. Fowler was explicit that he was not claiming Floyd died from inhaling exhaust fumes while held down close to the police squad car. To the contrary, he said that because of Floyd’s medical issues and the police restraint, anything that could have reduced his capacity to oxygenate the blood flowing to his brain and other organs could have contributed to his death. That should be a noncontroversial observation. Carbon monoxide, inhaled in even small quantities, can depress oxygenation.
As I noted at the time, it was baffling that prosecutors were exercised by this testimony. It’s not like Floyd voluntarily inhaled exhaust fumes. If carbon monoxide contributed in any way to Floyd’s demise, it was because the police held him down near their car for over nine minutes and because they failed to follow their training, which called for Floyd to be moved to an upright position to facilitate breathing once he was no longer resisting arrest. Ergo, Chauvin was culpable for any possible carbon-monoxide inhalation by Floyd. (That ended up being the prosecution’s position during summation.)
Dr. Fowler is a very impressive and accomplished forensic pathologist. That is why the state of Maryland was happy to have him for 17 years. There is no reason to believe that he gave anything other than honest testimony. And not that this should matter — witnesses are supposed to answer questions truthfully and let the chips fall where they may — but Fowler’s testimony hardly precluded Chauvin’s guilt. It might potentially have convinced the jury that Chauvin had reason to believe the restraint tactics the police used would not have imperiled the life of a normal, healthy person. That could have helped the defense argue that Chauvin lacked criminal intent on the two murder charges. But it would not have helped Chauvin on the crucial question of causation, nor would it have been much help on the manslaughter charge — on which prosecutors needed to show only recklessness, not criminal intent.
Importantly, Fowler’s testimony could have helped Chauvin only because the facts of the case also lent themselves to a conclusion that medical and drug-abuse problems were contributing causes of Floyd’s death. That is hardly Dr. Fowler’s fault, let alone a situation fabricated by his testimony.
Meanwhile, last weekend, vandals smeared pig’s blood on the former home of Barry Brodd, leaving a severed pig’s head behind. Brodd is the former federal and state law-enforcement officer who testified as a use-of-force expert in Chauvin’s defense case. Brodd has not lived at the California residence for years, but investigators suspect the obvious: The sickening display was intended as retribution for his testimony.
As I reported at the time, Brodd was shredded on cross-examination by prosecutor Steve Schleicher. His testimony thus turned out to be a coup for the prosecution. Nonetheless, Chauvin had a constitutional right to due process of law, rudimentary components of which are the right to present a defense and call witnesses to testify on behalf of the accused.
The Left, which is given to impassioned demands for due process when the accused are foreign terrorists or corrupt politicians with a “D” after their names, is clearly having a problem with the principle that everyone, including indicted police officers, is entitled to constitutional safeguards.
We have reached a dangerous pass.
Regardless of whether one agrees that Chauvin should have been convicted on all three counts against him, there was sufficient evidence to uphold the verdicts as rational. That, however, is an entirely separate question from whether Chauvin was adequately afforded due process.
In this case, that is a substantial question, in light of:
- overwhelming prejudicial publicity;
- the court’s decision not to move the case out of Hennepin County;
- the decision by Minneapolis — the municipality responsible for ensuring that Chauvin received a fair trial — to announce in the middle of jury selection a record $27 million civil settlement for the Floyd family;
- the court’s failure to sequester the jury after the horrific accidental killing of Daunte Wright by a police officer in a suburb of Minneapolis;
- the entirely predictable exposure of the jurors to the rioting that followed, as well as the prejudicial publicity tying Wright’s killing to Chauvin’s killing of Floyd;
- the intimidating public comments of California Democrat Maxine Waters, while present at the violent demonstrations in the Minneapolis area, that activists would have to become “more confrontational” if the jury failed to convict Chauvin of murder;
- the inflammatory remarks by President Biden, during deliberations, that he was praying for Chauvin to be convicted (and no, it’s no excuse that the jury was sequestered — would Democrats think such comments were excusable if they’d been made by President Trump while a sequestered jury was deliberating?); and
- the Star Tribune’s publication, as deliberations were about to begin, of a report that provided extensive background about the jurors — enough for competent investigators easily to pierce the anonymity that was supposed to protect the jurors and their families from intimidation.
Judge Cahill conceded, after Representative Waters’s provocation, that there was enough cause for concern about whether Chauvin’s fair-trial rights had been violated that any convictions could be thrown out on appeal. The activist Left, however, is not only assuming that no higher court would have the audacity to invalidate the guilty verdicts and order a new trial for Chauvin. The project now is to create an extortionate climate in which people fear that their professional reputations, their prospects, and their physical safety will be threatened or destroyed if they dare testify on the “wrong” side of politically fraught cases.
If due process becomes nothing more than a parchment promise, the rule of law dies, and with it a free and prosperous society. Its replacement would be frightening to contemplate.