We are getting to the end of the George Floyd series, unless something crazy happens. As I write, the defense has rested its case. Closing Arguments will happen on Monday, April 19, 2021. In other words, ALL of the evidence has been heard.

As I stated almost a year ago, when the indictment came out, I do believe Derek Chauvin will be found innocent. However, let me make something clear:

IF DEREK CHAUVIN IS FOUND “NOT GUILTY,” HE WILL NOT BE FOUND “NOT GUILTY” BASED ON SOME COMPLICATED LEGAL TECHNICALITY, A BURDEN OF PROOF PROBLEM, OR ANYTHING LIKE THAT. INSTEAD, HE WILL BE FOUND “NOT GUILTY” BECAUSE THE EVIDENCE DID NOT EXIST TO CONVICT HIM OF A CRIME. MORE THAN THAT, IT IS MOST LIKELY HE WILL BE FOUND INNOCENT BECAUSE HE IS ACTUALLY INNOCENT, NOT JUST “NOT GUILTY.”

This post is explaining why I think that is the case. And in line with the reasoning for this entire series, let his information protect us from an angry reaction that would lead to things burning down like they did last summer. As the good book says:

The one who states his case first seems right,
    until the other comes and examines him.
(Proverbs 18:17)

For most people casually keeping track of this situation, there is perhaps no better way to summarize the entire George Floyd situation than that.

The Trial of Derek Chauvin

A criminal trial involves a set of charges. Each of these charges is a crime, and each crime has elements. Every element of the crime must be proven “beyond a reasonable doubt.” I covered this legal stuff extensively in a previous post, which you can review here.

But let’s just make a quick review of the Charges against Derek Chauvin, the case the Prosecution is making, and the alternative case the Defense is trying to show.

Charges Against Derek Chauvin

We have already reviewed these charges against Derek Chauvin in previous posts related to the Motion to Dismiss, which you can access in this link, but things have changed. Because of the case of State v. Noor, and the Minneapolis Supreme Court’s ruling, a charge that was thrown out is now back in: Third Degree Murder.

Therefore, these are the following charges against Derek Chauvin:

1. Count I – Second Degree Murder – Unintentional – While Committing A Felony
2. Count II – Murder – 3rd Degree – Perpetrating Eminently Dangerous Act and Evincing Depraved Mind
3. Count III – Manslaughter – 2nd Degree – Culpable Negligence Creating Unreasonable Risk

The felony that Derek Chauvin was supposedly committing while murdering George Floyd in the second degree is “assault,” which means that the Prosecution will not only have to agree that Derek Chauvin “assaulted” George Floyd, but that his assault was not authorized by the fact that Derek Chauvin was a police officer engaging in a lawful arrest. This is where the supreme Court decision “Graham vs. Connor” comes in.

Murder in the Third Degree was thrown out in the first place, because this charge is normally used in cases like a bomb or randomly firing a gun into a crowd. The Defendant does not “intend” to murder anyone in particular, but because this is an “eminently dangerous act evincing a depraved mind,” the law doesn’t care. They will ignore the lack of “intent” to kill a person because of the “intent” to do something utterly ridiculous. Normally, this intent must be directed at a whole host of people (such as firing a gun into a crowd). However, in the State vs. Noor decision, the Supreme Court decided that the random firing of a gun in the direction of one person was able to be murder in the third degree. The judge initially threw out the charge because this thing Chauvin did was against one person — George Floyd. However, now that the law says this can be done against one person, the charge is back in. If Chauvin is found guilty of this, I imagine that this would be ripe for appeal to see if “the Defendant fires a gun in one person’s general direction” is rightly equated to “subduing someone on the ground with a leg when the Defendant is a police officer.”

Manslaughter in the second degree involves “Culpable Negligence creating an unreasonable risk.” Back in the discussion on the Motion to Dismiss, the judge noted the following:

Although Chauvin claims that he “acted according to MPD policy” and “his training,” the State disputes that contention, maintaining that Chauvin and the other Defendants failed to follow MPD’s use-of-force policy, did not use proper MRT techniques, failed to consider whether to implement de-escalation tactics, failed to attempt CPR, and failed to inform emergency medical personnel that they had used a neck restraint on Floyd, and all of which the State contends their training as Minneapolis police officers required. The evidence to which Chauvin points is not to the contrary

In other words, this will come down to whether or not Derek Chauvin followed MPD policy and used his training. The State claims he did not follow policy or use his training. They claim he failed to implement de-escalation tactics, failed to give CPR, etc. So the prosecution will need to prove beyond a reasonable doubt BOTH that Derek Chauvin failed to follow police guidelines AND that this constituted “culpable negligence” considering the factors of Graham vs. Connor and all.

That is what we knew before the trial started. Here’s what we learned in the trial’s evidence.

The Prosecution’s Case Against Derek Chauvin

The prosecution is claiming that Derek Chauvin killed George Floyd. They are claiming that George Floyd died of “asphyxia,” which the medical experts have explained is “a lack of oxygen.” The organ that uses the most oxygen and therefore the first organ to suffer from lack of oxygen in the body is the brain. Therefore, “asphyxia” is mainly a result of the lack of oxygen “to the brain.” There was a very eminent pulmonologist who testified about the manner in which George Floyd was struggling to breathe, and claiming that because Floyd could not lift up his chest, he could not take in enough air to deliver oxygen to the alveoli in the lungs. The reason Floyd could not lift up his chest is because Derek Chauvin was pressing his knee on his neck area, which was restraining his breathing.

Of course, since restraining people (and even deliberately killing people on occasion) is just a part of the job of police officers, the state must go further and show that these actions were not “objectively reasonable” considering the totality of the circumstances which a reasonable officer would take into consideration in the arrest. They have put forward various use of force experts to show that what Derek Chauvin was doing should not be done. The main issue is that Derek Chauvin should have stopped restraining George Floyd in the way he was being restrained and offered medical assistance. At the very least, they should have rolled him onto his side in the “recovery position.”

By failing to do this, Derek Chauvin’s actions in the restraint became objectively unreasonable. These objectively unreasonable actions killed George Floyd, and therefore Derek Chauvin is guilty of murder.

The Defense’s Alternative Case

The Defense does not have to prove anything in particular. They just have to poke holes in the Prosecution’s case. In my review of the testimony, the first thing I have noticed them doing is showing that the knowledge of Derek Chauvin, which would leave an “objectively reasonable officer” to do what Derek Chauvin did. These include:

1. the previous resistance of George Floyd
2. the size and strength of George Floyd
3. the belief that George Floyd was on drugs
4. the belief that an ambulance with lights and sirens (which got lost, by the way) was only a minute away
5. the danger that the growing crowd was posing to the officers who were waiting
6. the fact that certain levels of the use of force (for instance, the hobble restraint) were options that the officer backed away from
7. the position of Derek Chauvin’s body weight, which appears to change throughout the ordeal
8. the fact that Derek Chauvin’s knee appears to be on Floyd’s shoulder area, and not his neck

What was amazing for me was what I notice in the opening statement, when the Defense Attorney did not agree that Chauvin’s knee was on George Floyd’s neck. I knew something was up right then, but I didn’t know what.

Further, on the medical front, the Defense has not been as forceful on “the drugs” as I thought they would be. Instead, they have concentrated on “his heart.” The drugs in George Floyd’s system have been a part of this analysis, but the defense is not limited to this issue. Instead, the Defense is bringing up:

1. the blockage of George Floyd’s arteries, which prevent oxygen from going to the heart
2. the large size of George Floyd’s heart, which causes it to need more oxygen than normal to pump blood
3. the exertion of George Floyd’s resistance, which would

The Fact Witnesses in the Case

In this matter, I’ve already noted that the individuals who have the best evidence of what was going on are individuals who WILL NOT TESTIFY because they are being charged. Who has the best idea of the force being used on George Floyd? Derek Chauvin. Who has the best idea of how much George Floyd was resisting? Alexander Kueng, Thomas Lane, and Toa Thoa. Therefore, we won’t be getting a “first person description” of the matter. Instead, all we have is a lot of video.

However, what we do have is testimony from people, bystanders, who took additional video. These people were brought forward as fact witnesses. There has been some commentary (this Megan Kelly Podcast, for instance) wondering why this was done at all. In a normal case, yes, that would be a good question. But this is not a normal case. This is the biggest trial since the O.J. Simpson trial. EVERYBODY is watching. If you don’t have the initial people who brought the situation to our attention testifying, then it seems like something is wrong. So they brought them forward.

However, this did not do much for the Prosecution. For the most part, we learned nothing more than we knew at the beginning. However, there were some surprises. For instance, in my initial transcript of the video evidence (which you can access here), I noted the following of the famous video of the scene:

At 4:28, for an unknown reason, the officer identified as Derek Chauvin breaks his stare at George Floyd to pull something out of his belt. The camera quickly moves as the second bystander says “What the fuck! He got mace!” The third bystander says “I’m not scared of you bro” to the fourth officer. The fourth bystander calls one of the officers a pussy. The fourth officer attempts to keep others away and out of the street as the bystanders emotionally note “He’s not responsive right now.” A sixth bystander at this stage repeatedly asks “Does he have a pulse? Check for a pulse.” The view of Derek Chauvin is blocked by the car due to the video angle, as the fourth officer continues to direct bystanders away as he stands very close to the head of George Floyd. Chauvin can be seen putting the item (identified as mace by the bystanders) back in his belt. His gaze appears to be back at George Floyd’s face as the bystanders continue to demand that they check his pulse. An argument ensues between a woman who is now claiming to be a firefighter, videoing as well, who demands they check his pulse. The fourth officer orders the woman to get on the sidewalk, while questioning whether she is a firefighter. She affirms that she is a firefighter from Minneapolis. George Floyd does not appear to be moving as Chauvin continues to stare directly at his face as his hand is on his thigh in his pocket and his knee is in the same position. For the entire time, it is unclear where his weight is placed, though he has shifted around on several occasions, always with his eyes either on George Floyd, the other officers behind the police vehicle. In the video he has only twice to briefly look at bystanders or pull the item out of his belt when the bystanders approach. The woman who has claimed to be a firefighter along with the third bystander continue to demand his pulse be checked. The emotion is growing among the bystanders.

Amazingly, that woman actually was a firefighter. Additionally, the man who was the most aggressive in teh interaction also testified, and he seemed to have some background knowledge of MMA fighting. For some reason, the Prosecution certified him as an “expert” so that he could give opinion on what a blood choke was. To put it mildly, I believe that strand of evidence went almost nowhere. What we know, we know from the video and from the other experts. What you see in the video is what you get in their testimony.

One exception is the girlfriend of George Floyd who testified about their drug use and addiction to opioids. One thing that she gave use that was not known before is that George Floyd and her had received a set of pills that did not act like their typical opioids. Instead, they acted like “uppers” instead of “downers.” They also learned that without her knowledge, George Floyd also used Heroin. That testimony is here, revealed on cross-examination:

Another surprise was that an individual fact witness, the individual in the car with George Floyd, was supposed to testify about what George Floyd looked like and acted like before being arrested. He did not testify because he pled the fifth. You can see his lawyer explaining why he would not be testifying in this video here:

So, while I do not know what the jury will think of this, I know that it doesn’t help the Prosecution when a witness that the Defense calls to support its case declines to testify based on the Fifth Amendment. The Jury instead receives a list of questions that WOULD HAVE BEEN ASKED of this witness.

So….. …ouch for the Prosecution.

The Use of Force Experts of the Prosecution

Next were the Use of Force Experts. These experts testified on how the Minneapolis Police force trains its officers to use (or not use) force. One of them was the Minneapolis Police Chief.

Police Chief Medaria Arradondo: Department Use of Force Expert

It was significant that the Minneapolis Police Chief testified against one of his officers in the sense that this rarely if ever happens in a case like this. However, based on the politics of the situation, the fact that he fired Derek Chauvin before he was even charged, and the fact that the city has settled a lawsuit for $27 million before the criminal case, this was hardly surprising.

The testimony was not very significant for the Prosecution, because it added very little that we already knew. However, it was significant for the Defense in this following exchange:

Schleicher: Are Minneapolis Police Officers Trained in the Use of Force?

Arradondo: Yes.

Schleicher: In Pre-service, in the academy, and also post-service during in-service training?

Arradondo: Yes.

Schleicher: Are Officers taught the standard that the force must be reasonable at the time that it is applied?

Arradondo: Yes.

Schleicher: The entire time it is applies?

Arradondo: Yes.

Schleicher: Are officers taught the need to assess and reassess and reevaluate situations in the field?

Arradondo: Yes. They are.

This is in line with the Prosecution’s case that though Derek Chauvin’s actions may have been reasonable at one time, it ceased to be reasonable and constituted an objectively unreasonable use of force. However, I don’t know if I’m alone in my judgment that this opinion was less than persuasive in its presentation.

The real bombshell, as far as I saw it was in the following exchange between the Defense and the police chief:

Nelson [showing video of the bystander’s video at the time the ambulance has arrived]: This appears to be sort of that time that picture that was shown to you earlier. This is that general timeframe that that picture appears to be taken from? This appears to be that image you were showed on direct examination, that static exhibit 19, right?

Arradondo: Yes.

Nelson: It shows Officer Chauvin, Mr. Floyd, and it shows Officer Thoa?

Arradondo: Yes.

Nelson: And it shows the perspective of Miss Frazier’s phone? Chief, are you familiar with the concept of camera perspective bias?

Arradondo: I am not, Counselor.

Nelson: If I may take that down, by stipulation, I’m going to show that same timeframe, exhibit 1019, that same perspective from Mr. King’s body camera. [showing separate video] And I offer 1019. You agree it appears to be the same timeframe?

Arradondo: Yes.

Nelson: Now lastly, chief, I’m going to show you one last video. . . . I would offer exhibit 1020, which is a side-by-side of the two. [showing side-by-side video] You would agree, chief, that from the perspective of Miss Frazier’s camera, it appears that Officer Chauvin’s knee is on the neck of Mr. Floyd?

Arradondo: Yes.

Nelson: Would you agree that from the perspective of Officer Kueng’s body camera, it would appear that Officer Chauvin’s knee was more on Mr. Floyd’s shoulder-blade?

Arradondo: Yes.

Nelson: I have no further questions.

And right there, a CENTRAL FACT THAT HAS BEEN DRIVING THIS WHOLE SITUATION FORWARD FOR ALMOST AN ENTIRE YEAR was completely and utterly DRAWN INTO SERIOUS DOUBT by the Prosecution’s own witness, who also happens to be the Police Chief.

Just earlier, he had been commenting on the “knee on the neck” in his testimony. There was extensive questioning on “neck restraints” in both direct and cross examination. And in ONE SINGLE QUESTION BACKED UP BY VIDEO, we see that everything everybody had thought was the case (including me) just might not be the case.

THAT IS HUGE.

Lt. Johnny Mercil, “Local” Use of Force Expert

Next we had Lt. Johnny Mercil. He was the trainer of the police on the Use of Force. His full testimony is below:

Now, I’m not going to comment much on what he said, because he didn’t give much new information. The one thing I will note is that the Cross Examination basically got mostly “yes” answers out of him, except when asking if it was objectively reasonable to keep someone in the prone position “until EMS arrived.” To that question he said, “I wouldn’t go that far.”

Instead, the big thing about his testimony is what the prosecution DID NOT ask him. They did not ask him about whether or not he thought the use of force against George Floyd was “excessive.” So what? You might ask. Well, here’s the issue. The prosecution COULD HAVE asked him that, and he would have been free to say “Yes. I did think it was excessive.” Because they did not ask him, we can intuit something quite amazing:

HE DID NOT THINK THE USE OF FORCE WAS EXCESSIVE.

Because they didn’t get that information from this Minneapolis officer, they moved on to a different Use of force expert.

Sgt. Jody Stiger “National” Use of Force Expert

If there is one bit of the trial that you should watch raw to understand how tough of a case the Prosecution has, then you should watch this cross examination that Defense Attorney Eric Nelson gives to Jody Stiger. It is one of the strongest examples of cross examination I have ever seen.

Note the amazing things that the Defense Attorney got the PROSECUTION WITNESS to say:

Nelson: And ultimately, one of the things you said yesterday was that this was an excessive use of force, correct?

Stiger: Yes.

Nelson: But that is not the standard, is it. The question is whether it is objectively reasonable use of force, right?

Stiger: Correct.

Witness Cross Examination on April 7, 2021, 00:58:30 – 00:58:45

Amazingly, Stiger did not take the opportunity to say “I see those two phrases as synonymous. If something is excessive, then it is not objectively reasonable.” But he did not. I think that is what Stiger actually thinks, but he did not say it. I believe that is because (amazingly) this is literally Jody Stiger’s FIRST TIME EVER SERVICE AS AN EXPERT WITNESS IN A CASE. This is a link to another blog by a defense lawyer explaining how incredible this fact is. I highly recommend it.

For my own purposes, I would like you to recognize what the Defense Attorney was able to do in this exchange, by just quoting a random bit of his cross examination:

Nelson: You would agree that from the time officer Chauvin gets on scene to the time Mr. Floyd is proned on the ground, Mr. Floyd was actively resisting efforts to go into the squad car?

Stiger: Yes sir.

Nelson: And the Officers were reasonable in their use of force in their attempts to get him into the back of the squad car, agreed?

Stiger: Agreed.

Nelson: Now, in this context, Mr. Floyd was saying certain things as he was attempted to be put into the back of the squad car, right?

Stiger: Yes.

Nelson: You recall him at that point saying things like, “I’m not a bad guy.”

Stiger: Yes.

Nelson: You remember him saying “I have COVID”

Stiger: Yes.

Nelson: Or “I just got over COVID.”

Stiger: Yes.

Nelson: You remember him saying at that point, “I can’t breathe.”

Stiger: Yes.

Nelson: You remember him saying to the police officers at that point, “I can’t breathe.”

Stiger: Yes.

Nelson: As he was resisting their efforts to put him into the squad car.

Stiger: Yes.

Nelson: Now again, in the course of your career and in the course of your training and experience, and all of the context that you’ve got. Have you ever had someone say to you– to attempt to bargain with you to avoid being arrested?

Stiger: Yes.

Nelson: Sort of like, “Hey man, I’ll do what you want, as long as I don’t have to go to jail,” alright?

Stiger: Yes.

Nelson: Or, somebody may be fighting, and they may agree to stop fighting with you through a bargaining process, saying “If I get to sit on the curb, I will stop fighting.”

Stiger: Yes.

Nelson: Have you ever had a person feign a physical ailment as you attempted to arrest them?

Stiger: Yes.

Nelson: Sometimes people will say “I think I’m having a heart attack. Take me to the hospital. Don’t take me to jail.”

Stiger: Yes.

Nelson: And it’s fair to say that the vast majority — well, I shouldn’t say vast majority — it’s fair to say that one of the things that an officer has to do in an assessment of the reasonableness of his use of force is take into consideration what the subject is saying and how he’s acting.

Stiger: Yes. 100%.

Nelson: So if someone is saying “I can’t breathe,” and they’re passing out and not resisting, then that’s one form of analysis, right?

Stiger: Yes.

Nelson: Because the Actions of the suspect are consistent with the verbal utterances he is making, right.

Stiger: Yes.

Nelson: Other times, and in this particular case, when Mr. Floyd was initially saying he couldn’t breathe, he was actively resisting arrest.

Stiger: Initially when he was in the back seat of the vehicle, yes.

Nelson: And in fact, he was using his legs to push back and use his body weight against the officers, right?

Stiger: Yes.

Nelson: And at one point, three Minneapolis police officers were attempting to get him into the back seat of the squad car from the passenger side of the car, correct?

Stiger: Correct.

Nelson: And they were not able to do so.

Stiger: No.

Nelson: And in your report, you described it as, when the futility of their efforts became clear, I think those are the terms.

Stiger: I can’t recall using those words, but maybe I did.

Nelson: Would it refresh your recollection to review your report?

Stiger: Yes.

[Approaches the witness and reviews the report]

Nelson: Does that refresh your recollection, sir? And what you wrote was “When the futility of the three officers continuing their efforts forcibly to seat Floyd in the squad backseat became clear”?

Stiger: Yes.

Nelson: They put him on the ground in the prone position.

Stiger: Yes.

Witness Cross Examination on April 7, 2021, 01:11:45 – 01:17:00

That is DEVESTATING to the idea that Derek Chauvin’s actions were objectively unreasonable. This hits hard at the charges of Second Degree Unintentional Murder. It’s only an assault if the force was “objectively unreasonable,” which is the legal standard. It isn’t objectively unreasonable if it is not first “excessive,” which is the police policy standard. This cross examination went on for hours, and it was that bad all along.

Actually, no. It got worse:

Nelson: So when Officer Chauvin arrived, at 8:17 and 23 seconds. He knew that some level of force was being used, based on what he heard on the dispatch, correct?

Stiger: Correct.

Nelson: He knew that other officers were there, correct?

Stiger: Yes.

Nelson: He knew that he was being dispatched to back up a situation, right?

Stiger: Yes.

Nelson: He knew that the individual suspect was possibly impaired, right?

Stiger: Yes.

Nelson: And he knew that he was six to six and a half feet tall, right?

Stiger: Yes.

Nelson: And so when officer Chauving arrived on scene, he had a certain amount of information that a reasonable police officer can rely on in forming his or her next steps, right?

Stiger: Yes.

Nelson: And when he arrived, he observed Mr. Floyd and two officers, correct?

Stiger: Correct.

Nelson: At the back seat of a squad car, correct?

Stiger: Correct.

Nelson: And what you described as Mr. Floyd actively resisting their attempts to put him in the back seat of the squad car, correct?

Stiger: Yes.

Nelson: At that point, according to the model, the use of force continuum, Officer Chauvin theoretically, based on what he saw — active resistance — he could have come up and dry stunned him or tazed him. That would be within the active resistance use of force continuum, correct?

Stiger: Yes.

Witness Cross Examination on April 7, 2021, 01:08:30 – 01:10:55

I almost fell out of my chair when I heard that. Even as someone who has seen all the video and reviewed it many times, and as someone who thinks that Derek Chauvin will be found innocent (because I think he is innocent), not even I would say that Derek Chauvin was authorized to use a tazer the moment he arrived on scene. But FOR SOME REASON, this expert FOR THE PROSECUTION said “Yes.”

In my opinion, that bit of evidence ALONE could allow Derek Chauvin to walk because of how jarring it is.

Seth Stoughton – USC Law Professor Use of Force Expert

What was particularly strange to me was the Prosecution’s use of yet another use of force expert commenting on the matter, and he seemed to disagree with the other experts:

Nelson: In terms of those tactics, however, when Mr. Floyd — and I just wanna make sure that we’re very clear here — in your position, from your review of the reasonableness of the use of force, it was unreasonable for the officers to put George Floyd in the prone position at all, period, correct?

Stoughton: Yes. At that point, he did not present a threat to the officers or their interests. He did not present a threat of escape. The officers used some amount of force to put him into the car, and I have no issue with that. But putting him in the prone position, especially on the street side of the car was unreasonable, excessive, and contrary to generally accepted police practices.

Nelson: Reasonable minds can disagree, agreed?

Stoughton: On this particular point? No.

Nelson: So Sgt. Stiger who testified earlier, did you have an opportunity to review his testimony?

Stoughton: I believe I– yes, I did.

Nelson: And so his assessment that it was reasonable for the officers to use the prone position at that time, you would disagree with him?

Stoughton: I disagree. I think putting someone prone is unreasonable there. They are already handcuffed. The prone position is a transitory position used to restrain someone with handcuffs, or I suppose, hobbles. In this case, officers took Mr. Floyd out of the car, put him on his knees, and then put him on his side. And again, if they had stopped there, I would not have any quibble with their actions.

You should keep watching that back-and-forth to see how Nelson absolutely eviscerates this guy with one of his own Opinion pieces that he submitted to the Washington Post. To put it lightly, he WAS NOT CREDIBLE. And to let you know how non-credible he was, just look at the BWC video of Floyd going into the prone position. See if you think the officers “chose” to put Mr. Floyd here.

That witness did FAR MORE HARM that any help he might have offered. This guy alone can cut into the credibility of the entire prosecution. He was SO BAD.

Conclusion on Prosecution’s Use of Force Experts

In short, all of the use of force experts seem to disagree. One of them (the Police Chief) said that the force was wrong and testified that the knee on the neck was bad. Then, under Cross-Examination, he admitted that from one angle, it didn’t look like the knee was on the neck. Another officer (Sgt. Steiger) did not give an opinion on the use of force being excessive, and we can intuit that the Prosecution did not ask him because he thought the force WAS reasonable. The last use of force expert was absolutely crazy, and though he told a consistent story (if you don’t count his Washington Post article), his interpretation beggars belief.

The Prosecution’s Medical Experts

As I documented almost the same day that the Medical Examiner’s report came out, the Medical Examiner’s report did NOT help the prosecution (click here for a copy of the press release regarding that document). The explanation of George Floyd’s death was as follows:

Cause of death: Cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression
Manner of death: Homicide
How injury occurred: Decedent experienced a cardiopulmonary arrest while being restrained by law enforcement officer(s)
Other significant conditions: Arteriosclerotic and hypertensive heart disease; fentanyl intoxication; recent methamphetamine use

This problem was intensified at the trial. During the trial, we learned that one of the main arteries giving blood to the heart was blocked 90%. The other main artery giving oxygen to the heart was blocked 75%. Despite this, the Prosecution needed to prove that George Floyd died because of “asphyxia,” or “lack of oxygen” which would affect his brain, primarily.

Dr. Martin Tobin – Pulmonologist

The first prosecution medical expert of any note is Dr. Martin Tobin. He was actually pretty good. He did a good job of explaining to the jury the “mechanism” of how the body must breathe. He did a good job of explaining how the position and restraint would have caused George Floyd not to be able to obtain enough oxygen. He was definitely an expert on breathing and the lungs. His full testimony is below:

The defense did not gain a huge amount of ground on him, but they were able to frustrate his testimony a bit. He was not the most “experienced” witness, often getting mixed up about whether the jury was seeing what he was seeing. This wasn’t the worst thing, but kept him from being “as good as he could be.” The defense was also able to keep him from displaying a few “demonstrative” exhibits to the jury, which left his explanations a bit less convincing. However, he was good, and if you want to see the prosecutions case, you should look at his testimony.

Dr. Lindsey Thomas – Forensic Pathologist

The next witness for the prosecution was Dr. Lindsey Thomas. She spoke to the fact that the mechanism of death was the lack of oxygen due to the constraint of the police officers. She was not the best witness because on one occasion, she actually got angry at a medical journal that the Defense cited about the prone position not being inherently dangerous. In her small diatribe against that paper, the Defense attorney objected to her answer, and the judge shut her down. It wasn’t “dramatic,” but it wasn’t a good look.

However, what follows is an important part of her testimony:

Blackwell: So focusing in on the mechanism of death here. How is it that the officers’ subdual-restraint and neck compression caused Mr. Floyd’s death?

Thomas: So, as I mentioned, I think the primary mechanism was asphyxia or low oxygen. And it basically is Mr. Floyd was in a position, because of the subdual-restraint and compression, where he was unable to get enough oxygen in to make his body function.

Blackwell: What is required for normal breathing?

Thomas: Well, there are kind of three components, you have to have air in, so you have to have what’s called a patent airway, so that could be nose, mouth, soft tissues of the neck, the trachea, larynx, bronchi. All of that has to be open. At the level of the lungs itself. There has to be adequate air exchange between oxygen coming in and carbon dioxide coming out. And finally, the way the lungs work, it’s kind of like a bellow. ANd when you suck in air, your diaphragm drops and pulls air in and when you relax, the diaphragm collapses and pushes air out. So all three of those things have to be functioning in order to get adequate oxygen in. So for example, if someone is smothered, or strangled, or they inhale a piece of hotdog, or they have pneumonia so that their lungs are completely filled, their airway is obstructed so that there is not enought oxygen coming in. Or if they are in an environment where there isn’t enough oxygen. So if there is a closed garage in which a car has been running, there may be way high carbon monoxide and in that case, they are perfectly able to breathe in and out, but there just isn’t enough oxygen. And then the third is if there is some kind of restriction such that your chest can’t expand, your diaphram can’t expand, so the bellows function isn’t working. And if any one of those components isn’t working, then the result will be that mechanism of inadequate oxygen.

And that is nothing surprising. She is testifying that the “mechanism” of death (what is going on inside the body) is that there is not enough oxygen for George Floyd to live, because of the compression of his chest, which can’t expand.

The weird part about this is… and I can’t express how strange this is, so let me make it clear:

THIS DISAGREES WITH THE MEDICAL EXPERT WHO DID THE AUTOPSY

As we stated before, the cause of death in the autopsy was:

Cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression

That means “the heart and lungs stopped.” That IS NOT THE SAME THING as saying that someone died of “lack of oxygen.” The Medical Examiner’s report is rather ambiguous between the prosecution’s case of “asphyxia” and the defense’s case of “heart attack.” In essence, he is saying that both the heart and lungs stopped working. But note what he doesn’t say: Asphyxia.

There is also the testimony of what the autopsy means by the word “complicating” in the autopsy. This is SUPER important, and this is what she said:

Nelson: There’s a term used in Dr. Baker’s autopsy, the cause of death, the term “complicating.”

Thomas: Yes.

Nelson: Can you define, medically speaking, what that term “complicating” means?

Thomas: Oh, I guess it can be used in lots of different ways. The way I would think of it in this setting, is both things were present. That there was a cardiopulmonary arrest, and that it was due to law enforcement subdual-restraint, and um… compression? I guess that’s how I would consider it in this sense.

Here’s the problem with that. It disagrees with what Dr. Baker says that word “complicating” means.

Dr. Andrew Baker – Hennepin County Medical Examiner

The most important prosecution witness is the one who actually did the autopsy. He was an excellent witness, and did a very good job. The only problem is that he didn’t really support the prosecution’s case. He also took a VERY different understanding of his own report. Notice what he said on the meaning of “complicating” in his final report:

Nelson: Now, I want to talk to you first about the word “complicating.” How do you define “complicating” as you used it in the cause of Mr. Floyd’s death?

Baker: I use the word “complicating” the way I think most physicians use the word “complications.” And I’m guessing that most people who have ever been a patient or had a loved one who has been a patient knows what physicians mean by “complications.” It means that an intervention occurred and an outcome that was untoward occurred on the heels of that intervention. So for example, someone goes into the hospital for hip surgery, and they develop a blood clot in their leg. That’s a complication. You get started on a new medication for a heart condition, and you have an allergic reaction to it. That’s a complication. So it’s an untoward event at the heels of an intervention that happens. That’s how I look at it, as a physician.

So let’s look at why this is significant.

• Dr. Lindsey Thomas says that there is a causal relationship between the two, and she interprets “complicating” as meaning that the police restrained “caused” the cardiopulmonary arrest.
• Dr. Andrew Baker says that there is a “untoward event at the heels of an intervention” that is analogous to a blood clot after a surgery or an allergic reaction to a medicine.

Let me spell it out even clearer for you if that’s not enough:

DR. THOMAS IS DESCRIBING A MURDER. DR. BAKER IS DESCRIBING AN ACCIDENT.

You would expect this kind of disagreement between a Defense expert and a Prosecution expert. But here’s the kicker: These are both prosecution experts.

Conclusion on Prosecution’s Medical Experts

At the end of the day, the Prosecution put forward enough evidence for someone to conclude that George Floyd died of a lack of oxygen. This issue is complicated, and I don’t want to pretend that I’m an expert in medical stuff. However, that evidence wasn’t given in a vacuum. Instead, they were constantly peppered by Eric Nelson, who put in a great deal of his own ideas into the record.

What is most significant is that the prosecution’s witnesses did not seem to completely agree with one another. Dr. Andrew Baker did not forcefully support the Prosecution’s case. That is why they brought in outside witnesses. This is not normal. Dr. Baker disagreed in some significant respects with Dr. Thomas, which did not support the Prosecution’s case very well.

In other words, it was bad.

The Case of the Defense

The Defense’s case was….. ….short. But it was good. Most of their case had already been made in the cross-examination of the prosecution. I will review three main witnesses of the Defense here. This is definitely not all of them, but it is enough.

The Defense Use of Force Expert

The first main witness for the Defense was Barry Broad. He was typically what you would expect from a police officer defendant. There was nothing particularly breathtaking about his testimony, except that I couldn’t help but notice how excellent he was on cross-examination. He was like a brick wall and gave very short, barely even audible “No.” and “Yes.” Answers. In other words, everything that Sgt. Stiger was, this man wasn’t. He did not let the prosecution gain any ground, which is precisely what a good expert witness does.

His full testimony is below:

The only fact of note is that I picked up is that he did not even view the prone restraint as a “use of force” at all, because George Floyd was just being held in a position that Mr. Floyd volunteered to get in. Since they were just waiting for an ambulance, he definitely thought that the “use of force” (if you want to call it that) was reasonable.

This testimony is pretty much what you would expect from an expert. In fact, we know this because when he heard about the case, he offered his services to the Minneapolis Police Department, but they did not accept his services, apparently because they wanted to go a different direction. He was a good witness, particularly because of how boring and straightforward he was.

The Defense Medical Expert

In contrast to the Prosecution’s disagreeing medical experts, the Defense put on one medical expert — Dr. David Richard Fowler — who testified that George Floyd died of a heart attack due to his preexisting conditions and the drugs in his system. Additionally, he gave us a NEW FACT that I don’t think anybody was thinking about before he said it: Carbon monoxide.

Below is the testimony of the Defense Medical Expert Giving his opinion:

Nelson: Before we begin doctor, can you summarize briefly what your opinions are in this case?

Fowler: Yes. So, in my opinion, Mr. Floyd had a sudden cardiac arrhythmia or cardiac arrhythmia due to his athroscologic [sp?] and hypertensive heart disease — or you can write that down multiple different ways — during his restraint and subdual by police, or restraint by police. And his significant contributory conditions would be — since I put the heart disease in part one — he would have the toxicology, the fentanyl and methamphetamine. There is exposure to a vehicle exhaust, so potentially carbon monoxide poisoning, or at least an effect from increased carbon monoxide in his blood stream, and his paraganglioma, or another natural disease process that he has. So, all of those combined to cause Mr. Floyd’s death.

What is significant about this medical expert is that he gives his opinion in a what that AGREES WITH the Hennepin County Medical Examiner in this case. He says it WAS a “cardiopulmonary arrest” (the heart and lungs stopped). Why did it stop? Because of a combination of factors:

1. 75% and 90% narrowing of the arteries in Mr. Floyd’s heart, preventing oxygen from coming to the heart
2. an enlarged heart, requiring more oxygen for the heart to run
3. increased heart activity due to methamphetamine
4. reduced breathing due to fentanyl
5. increased oxygen usage due to the police restraint
6. reduced oxygen in the system due to the car exhaust

That is a POWERFUL alternative explanation for George Floyd’s death. Did they prove this beyond a reasonable doubt? Of course not, but that’s not the Defense’s job. Instead, it is the Defense’s job to CREATE a reasonable doubt, which this most certainly does.

And what is most significant is that he does NOT say that the cause of death was lack of oxygen. He says the cause of death was a heart attack (“arrhythmia”) caused by not enough oxygen getting to Mr. Floyd’s heart, which is the Defense’s main point. This is extremely different than “not enough oxygen getting to Mr. Floyd’s brain” which is the Prosecution’s case.

In other words, he really builds up the Defense’s case, and gives a coherent explanation

CONCLUSION

The Defense put on a DARN GOOD CASE. Even though I was somebody who knew this was going to be tough on the Prosecution from the beginning, I was still surprised by the things the Defense was able to show. They cut down on the primary fact of the entire thing. The witnesses for the prosecution were as good for the Defense as they were for the prosecution.

So when you add all this together, I don’t know how this goes to the Prosecution. Except for the fact that… ….well, you know… …if Derek Chauvin is not convicted, Minneapolis might burn to the ground. “No Justice, no Peace” and all that.

CONCLUSION – What the Jury Must Figure Out

So let’s return to the charges at the beginning.

• Count I – Second Degree Murder – Unintentional – While Committing A Felony
• Count II – Murder – 3rd Degree – Perpetrating Eminently Dangerous Act and Evincing Depraved Mind
• Count III – Manslaughter – 2nd Degree – Culpable Negligence Creating Unreasonable Risk

On Count I, did Derek Chauvin commit a felony? Did he “assault” George Floyd based on what the evidence shows?

1. First, it must be decided that Derek Chauvin committed a “felony” and there are serveral ways for this “assault” to not be allowed by the fact that he is a police officer:
   1. One way for this to be possible (based on the evidence) is either that they believe Mr. Stoughton who believes that it was “unreasonable” to put Floyd in the prone restraint at all, and therefore, the prone restraint was the “assault.”
   2. Another way for this to be the case is to believe Sgt. Stiger, that it may have started out as “reasonable,” but that it moved to “excessive” when they did not adjust after the several minutes of George Floyd on the ground to the recovery position.
      • Amazingly, the jury will have to note that it was “reasonable” for Chauvin to use a tazer at the beginning, but it was “unreasonable” for Floyd to continue to be restrained in the position he put himself in when he wouldn’t go in the car.
   3. Another way for this to be the case is to believe the Police Chief who emphatically states that what we see in the video is NOT a trained maneuver, and does NOT reflect the values of the Minneapolis Police Department.
      • Particularly important is the fact that it is unconscionable for Derek Chauvin to have his knee on George Floyd’s neck for — [someone whispers in the ear] — ahem… what I meant to say is that it is unconscionable for Derek Chauvin to have his knee on George Floyd’s neck AREA for that long.
2. And in all of that, the jury must decide that considering the “totality of the circumstances,” a “reasonable officer” in the place of Derek Chauvin would be unjustified in doing what he did, knowing what a reasonable officer in Chauvin’s position would have known, and not using 20/20 hindsight.

In short, I do not think they will get to Second Degree Murder, because the evidence doesn’t support it.

On Count II, did Derek Chauvin perpetrate an eminently dangerous act based on what the evidence shows?

1. One way for this to be possible (based on the evidence) is for the jury to believe that
   • Mr. Chauvin placed enough weight on George Floyd’s body to prevent him from breathing properly, AND
   • That the stuff going on inside George Floyd’s body was lack of oxygen which prevented his brain from functioning properly.
2. Additionally, the jury will have to find that this was “imminently dangerous,” and by “this” we mean:
   • The prone position, if you believe Mr. Stoughton
   • The continued prone position, if you believe Sgt. Stiger
   • [Reading from a prepared statement] The knee on the “neck area” of George Floyd for an extended period of time
3. That George Floyd did not die of
   • a heart attack, brought on by:
     • his own drug use,
     • his resistance,
     • heart disease, and
     • voluntary agreement to go into the prone position rather than sit in the back of the police car,
   • or any other cause, such as Fentanyl overdose
4. AND that considering the “totality of the circumstances,” a “reasonable officer” in the place of Derek Chauvin would be unjustified in doing what he did, knowing what a reasonable officer in Chauvin’s position would have known, and not using 20/20 hindsight.

In short, I do not think the jury will decide as such for Murder in the Third Degree, because the evidence doesn’t support it.

On Count III, was Derek Chauvin guilty of “culpable negligence” creating an “unreasonable risk”?

1. One way for this to be the case is that the jury finds that Derek Chauvin did not do enough to care for George Floyd who was under his custody.
2. Further, they must decide that it was unreasonable to keep him in that position, despite the surrounding fact, which includes:
   • Declining to believe that George Floyd’s previous struggle justified keeping Floyd in the prone position
   • Declining to believe that “an ambulance is on its way” justifies keeping Floyd in the prone position.
   • Declining to believe that the angry crowd shouting expletives would allow the officers to keep George Floyd restrained
   • Declining to believe that George Floyd was a risk of danger or flight
   • Declining to factor in the lack of use of the hobble restraint as a “de-escalation” tactic
   • Declining to factor in the monitoring of Floyd’s pulse as a responsible action that mitigates the “risk” that George Floyd was in.
3. Further, they must decide that the prone position and restraint actually CAUSED George Floyd’s death, and was the result of Chauvin’s “negligence.”
4. AND that considering the “totality of the circumstances,” a “reasonable officer” in the place of Derek Chauvin would be unjustified in doing what he did, knowing what a reasonable officer in Chauvin’s position would have known, and not using 20/20 hindsight.

If anything happens, it could be this one, because the argument would be that when George Floyd became unresponsive, it was the officer’s duty to offer aid. However, I do not think the jury will decide this for Manslaughter in the Second Degree.

And that’s my review of the George Floyd Trial. Closing Arguments will occur on Monday.