After stumbling out of the box, the defense attorneys steady the ship — with a superb witness.
After stumbling out of the box, the defense attorneys steady the ship — with a superb witness.
I wouldn’t have bet on it, but it has happened twice in the same case — once to each side in Derek Chauvin’s murder trial.
The defense case stumbled out of the box on Tuesday, and seemed significantly damaged when expert testimony about the police use of force against George Floyd became a coup for the adversary. The same thing happened to the prosecution earlier in the trial: Its use-of-force experts seemed, at times, as if they’d been called by Chauvin’s counsel, Eric Nelson. It took scintillating testimony by a medical expert, Dr. Martin Tobin, to get the state’s case back on track. And so it was on Wednesday: Reeling because its use-of-force expert turned out to be a coup for prosecutors, the defense steadied the ship, thanks to the testimony of an extraordinarily able medical doctor, forensic pathologist David Fowler.
The trial is in its final phases. As expected, Chauvin advised the court this morning that he is
asserting his Fifth Amendment right not to testify, after which the defense rested its case. Judge Peter Cahill plans to give the jury the day off on Friday, then proceed with summations, legal instructions, and deliberations starting Monday. At that point, the jury will be sequestered until a verdict is reached.
To be clear, Chauvin is nowhere near out of jeopardy. The parties — each hoping to discredit the other, as adversaries try to do — have litigated the case as if the cause of Floyd’s death is an either/or proposition: Either he was killed by police brutality, or he died because of a plethora of coronary conditions exacerbated by drug abuse and the adrenalized excitement of an arrest. But that is not how the law works.
The jury can properly convict Chauvin if it finds that police used excessive force and that this excessive force was a substantial causal factor in Floyd’s demise. It need not have been the only factor — or even the only substantial factor. The excessive force would be culpable causation even if there were other intervening or contributory factors.
So, while Chauvin is predictably highlighting Floyd’s various maladies, some of which were quite serious, the fact that Dr. Fowler ably described their severity and the high probability that some or all of them were factors in Floyd’s death would not exculpate Chauvin. As concerns the causation question (which we distinguish from the question of whether Chauvin had criminal intent), the defense needs to sow doubt about (a) whether excessive force was used and/or (b) whether that force was a substantial causal factor in the loss of Floyd’s life.
Dr. Fowler was a superb witness. He has the credibility that accompanies accomplishment and authority. He is a native of South Africa, was educated there as well as in top-flight U.S. schools, and prior to his 2019 retirement, he was Maryland’s chief medical examiner. He has also taught at both the University of Maryland and Johns Hopkins, in addition to lecturing around the world and publishing widely. He showed the poise, polish, and persuasiveness of a highly experienced witness.
Mostly, though, the forensic pathologist was believable because he did not appear to deny reality, as did the defense use-of-force expert, Barry Brodd. Dr. Fowler did not pretend that the police confrontation with, and subdual of, Floyd were not factors in his death. Instead, the doctor’s testimony indicated that prosecutors had both inflated the extent to which the police force physically harmed Floyd, which is relevant on the question of excessive force; and low-balled the extent to which Floyd’s profound heart conditions (enlarged heart, hypertension, major arterial narrowings), in combination with other health issues, brought about his death.
On the latter point, a number of Floyd’s health issues were already well known: his history of drug abuse, his ingestion of a fentanyl/methamphetamine combination near the time of death, the presence of an amount of fentanyl that is potentially lethal (though perhaps less so in a person who has built up an opiate tolerance as Floyd had), and a paraganglioma tumor in his pelvic area (found during the autopsy). To these, Dr. Fowler added another aggravating factor: carbon-monoxide inhalation owing to Floyd’s proximity to the exhaust system of a running police squad car while the cops held him down on the street awaiting an ambulance.
This last factor threw the state for a loop. On cross-examination, prosecutor Jerry Blackwell, who did not have his best day, made the mistake of attacking Fowler as if he were saying that Floyd died from carbon-monoxide poisoning. It was a strange approach. Fowler had been emphatic that he was saying no such thing, and even if he had been, it was the police who maintained Floyd near their squad car. Fowler merely pointed out that inhaling a toxic gas might have been a contributory factor in Floyd’s death, especially given his medical issues, which made him more vulnerable to low oxygen. Because prosecutors overreacted, the jury may conclude that the state’s apparent failure during the autopsy to test for carbon-monoxide inhalation is a bigger deal than it actually is.
Fowler also pushed back on prosecution testimony, primarily from Dr. Tobin, that the three police officers’ maintenance of Floyd in the prone position, with their weight on his back, was principally — as opposed to contributorily — responsible for Floyd’s cardiopulmonary arrhythmia, the low oxygen that killed him.
Fowler pointed out that the prone position (in which about 7 percent of adults sleep) is not innately dangerous, a point that prosecution experts concede. Fowler endorsed several medical studies concluding that the placement of significant weight on the back of a normal adult who is in the prone position does not reduce oxygen intake perilously. He supported the defense contention that the prosecution video imagery, especially the still pictures the state hypes, make things look worse than they were.
Most of the time, Chauvin had a goodly amount of his weight leaning back on his toes, atop but not digging into Floyd’s neck and back. Until he lost consciousness, Floyd was able to move his neck and head. Plus, the area of the neck where Chauvin’s left knee was mostly positioned is the locus of a hard ligament, which is not susceptible to pressure that cuts off air flow — a point Dr. Tobin also made.
Fowler took issue with Tobin’s theory that the restraint position may have compressed Floyd’s hypopharynx, cutting off airflow near the trachea. He countered that the numerous cases of airway-passage blockages he’s seen involved foreign objects or cancerous tumors, and that he found no support for Tobin’s theory. This is consistent with the state’s own evidence that Chauvin never choked Floyd, and that there was no forensic evidence of airway blockage. Moreover, Fowler observed that if Chauvin, with his knees and shin, had been putting significant, sustained weight pressure on Floyd’s neck and back, a forensic pathologist would expect to find some bruising in those areas. There was none. While it’s true that some people bruise more readily than others, Fowler found the absence noteworthy.
It is critical to grasp the upshot of all this. Dr. Fowler did not claim that the police detention was immaterial. He said that, in light of Floyd’s profound coronary conditions and drug use, the police altercation — beginning with the arrest and Floyd’s violent resistance, and continuing through the detention on the street — triggered a hypertensive reaction that resulted in cardiopulmonary failure.
In Fowler’s assessment, a principal cause of death cannot be determined because there are too many competing causes for which an argument can be made. But as the doctor stressed, this is not a legal determination. The United States requires a medical determination of cause of death in order to aid medical research and recordkeeping. But whether an actor’s conduct is culpable, criminally or civilly, for a person’s death is not a medical judgment. It is a legal conclusion — and, as I noted above, it is not controlled by an “either/or” analysis.
Obviously, Floyd had a right not to be subjected to excessive force, but he did not have a right to be spared the anxiety of a lawful arrest. If he exacerbated his underlying medical problems by ingesting dangerous drugs and forcibly resisting arrest (an adrenalized behavior that makes the heart work harder to supply the body’s oxygen needs), that is not the fault of Chauvin and the other police officers.
On the other hand, the fact that Floyd had material underlying medical problems would not excuse police if they applied more force than was reasonably necessary under the circumstances. The jury will have to decide if Floyd’s resistance, and the seemingly remote possibility that he could have come to and assaulted police (while he was handcuffed from behind, unconscious, and pulseless), made the police restraint reasonable. Even if the form of restraint was not as egregious as prosecutors have portrayed it to be, police are still trained to de-escalate force when a subject has stopped resisting, and to roll him into a sideway recovery position to facilitate breathing. Chauvin and the other cops did not do those things.
Moreover, even fully accepting Dr. Fowler’s testimony, it would not excuse police for failing to provide elementary medical care (such as CPR), as they are trained to do when a person in their care is nonresponsive and pulseless.
Derek Chauvin still faces daunting evidence. Dr. Daniel Fowler illustrated, however, that things are more complicated than they’ve been made to appear. That is what a defense case is supposed to do.