Posted by Curt on 15 April, 2021 at 6:16 am. 4 comments already!


by Andrew Branca

Today saw the testimony of only one witness, but it was a witness of great importance to the defense, and therefore one whose testimony the state would perceive as important to damage.
This was the defense medical expert witness Dr. David Fowler, a retired forensic pathologist.
To not bury the lead, Dr. Fowler did what the defense needed done today, and did it well. That’s not to say his performance was perfect—he took a few hits off Prosecutor Jerry Blackwell during cross-examination, and could have done better deflecting some of those attacks.
At the same time, however, Blackwell’s rather over the top cross-examination of Fowler was initially too aggressive for Judge Cahill’s liking, resulting in a rapid sidebar and a more restrained Blackwell moments later, and Blackwell’s resort to snark led him to overreach several times, providing opportunities for defense counter-attack that defense counsel Eric Nelson did not pass up.
So, overall, a good day for the defense today, when they very much needed one, especially after the weak performance of defense expert witness Barry Brodd yesterday.
I’ll dive into the testimony of Dr. Fowler in some detail in a moment, but first let me touch upon a couple of housekeeping matters that were addressed this morning prior to the jury being brought into the court room.
First, the defense finally made its motion for acquittal, the prosecution argued against that motion, and Judge Cahill denied the motion. This was all entirely predictable.
The legal standard for acquittal that Cahill was obliged to apply was to assume that everything the state claimed was 100% true, and then decide if a reasonable jury could possible arrive at guilty verdict under those circumstances.
Unless the prosecution is entirely inept—and this one is not—or the evidence was unambiguously lacking on a required element of a charged crime—and the prosecution made sure that wasn’t allowed to occur—there is always at least some evidence for a jury to consider.
Once that’s the case, and we are required to view that evidence not impartially but in the light most favorable to the prosecution, a guilty verdict is always at least theoretically possible.
So, that took care for the motion for acquittal, as expected.
The next housekeeping involved Morries Hall, the male passenger in Floyd’s Mercedes SUV at the time of his in-custody death on May 25, 2020, who is also reported to be a drug dealer and who is currently in jail with his own legal challenges.
The defense had originally planned to call Hall as a witness in this case, focused particularly on Floyd’s drug use and intoxicated behavior when officers first approached the Mercedes SUV.
Hall eventually realized, however, that he was potentially on the hook for third-degree murder over Floyd’s apparent drug overdose death, and through his public defender he informed the court that if called to testify he would plead the Fifth Amendment.
There were various arguments made at various times about the extent to which it might be possible to have the defense subpoena Hall into this trial to testify, but in the end that was all resolved this morning.
Hall asserted a blanket 5th Amendment privilege to any and all questions he might be asked having anything to do with George Floyd on May 25, 2020, Judge Cahill acknowledged that privilege, and thus expired any hope the defense might have had to get Hall on the witness stand.
Frankly, I’m not sure it really matters that much. Given the toxicology results showing fentanyl and meth in Floyd’s system, the pills coated in Floyd’s saliva found in the patrol car, the testimony of the Cup Foods clerk that Floyd appeared “high,” and the testimony of female SUV passenger and Floyd ex-girlfriend Shawanda Hill of Floyd apparently succumbing to a fentanyl overdose while in the vehicle, I’m not sure how much more Morries Hall would have added to an unambiguous narrative of Floyd being intoxicated.
In any case, that took care any questions over Hall’s assertion of his 5th Amendment privilege and whether he would testify in the Chauvin trial—he would not.
As already noted above, Dr. Fowler was a very solid expert witness for the defense today, and generally presented as extremely experienced and competent.  His South African accent probably didn’t hurt, either. Despite the accent, Fowler had worked as a forensic pathologist for a couple of decades, primarily in various senior medical examiner-type roles for the state of Maryland.
Before we dive in further, recall that the prosecution really has to prove two distinct arguments in order to win a conviction on the legal merits in this case.
First, they have to prove beyond a reasonable doubt that Chauvin’s conduct was a substantial contributing factor in Floyd’s death.
That alone, however, is not enough. They must also prove beyond a reasonable doubt that Chauvin’s use of force was not legally justified.  A justified use of force that even directly caused Floyd’s death would not be criminal conduct.
Yesterday’s testimony by defense use-of-force expert witness Barry Brodd was intended to establish reasonable doubt on the justified use of force question, and that didn’t go particularly well, as we noted here:  Chauvin Trial Day 12 Wrap-Up: Defense Use-of-Force Expert Witness Falls Short
Today’s testimony by Dr. Fowler was intended to establish reasonable doubt that Chauvin’s conduct was a substantial contributor to Floyd’s death. As noted, Fowler did a reasonably good job today. Whether it was sufficient to the needs of the defense, ultimately only the jury can decide.
Fowler Direct Questioning
As is always the case with expert witnesses on direct, the first 20 minutes or so were spent by defense counsel Eric Nelson stepping through Fowler’s education, experience, publications, professional associations, and all the other facets of his career that imbue him with the necessary authority and credibility to serve effectively as an expert witness.
One interesting facet of Fowler’s testimony is that although currently retired from his full-time jobs, he apparently consults for a private enterprise panel of various medical experts.  My sense was that this was in effect a business designed to provide high-end scientific consultancy to the legal community.
This arrangement also allows any single member of the business to involve others with distinct scientific expertise to inform their own scientific analysis, providing a much broader base of scientific expertise than any individual was likely to possess.
Now with the defense presenting its case in chief, the mission for defense counsel Nelson is to establish reasonable doubt on either of those arguments.  That is, establish either a reasonable doubt that Chauvin’s use of force was unlawful, or establish a reasonable doubt that Chauvin’s conduct was a substantial contributor to Floyd’s death.
As one should expect from a retained expert witness, Dr. Fowler was prepared to say the magic words that the defense needed said, in the context of having formed an opinion, to a reasonable degree of professional certainty, as to the cause and manner of George Floyd’s death.
And that opinion is:

George Floyd had a sudden cardiac arrythmia due to atherosclerotic and hypertensive heart disease, during his restraint by the police.

Contributory conditions that led to this fatal outcome included Floyd’s existing heart disease (substantial coronary artery occlusion, and pathological hypertension resulting in an enlarged heart), fentanyl and methamphetamine toxicity, an existing paraganglioma, and another factor mentioned for the first time today, exposure to carbon monoxide from the exhaust of squad car 320.
In his direct questioning of Fowler defense counsel, Eric Nelson touched upon a broad array of issues where the prosecution during its case in chief had raised apparent vulnerabilities for the defense.
For example, the state had made frequent reference to the death certificate citing the manner of death as having been “homicide.”
Most of us will recognize that the use of the word “homicide” on a death certificate has solely medical consequences and is not a legal finding of any sort.  Indeed, even in a legal context a homicide is not always a crime.
There is always the risk, however, that a jury will apply the lawman’s meaning of “homicide” to mean “unlawful killing,” and Nelson took steps to address this.
First, he reminded the jury of the medical versus legal application of homicide with respect to the death certificate. He also had Dr. Fowler step through the various components of a death certificate to clarify where an actual cause of death was being asserted, and by what means.
Nelson also had Fowler step through the five options for manner of death—homicide, suicide, accident, natural, and undetermined—to which he would circle back later.
The real take home message in all of this was that Fowler agreed that low oxygen played an important role in Floyd’s death—but it was the manner in which that low oxygen state was achieved that made the difference in this case.
More specifically, the state was essentially arguing that it was the subdual restraint by the officers upon Floyd that induced positional asphyxia, a low oxygen state, and a consequent fatal arrhythmia in Floyd’s heart.
Fowler’s view, however, was that it was not a profound low oxygen state induced by the police via subdual restraint and positional asphyxia that caused Floyd’s heart to stop, but rather that it was Floyd’s exceptionally fragile physiological condition—a condition unknowable to the arresting officers—that made his heart exceptionally vulnerable to even the modest shortfall in oxygen caused by Floyd’s decision to fight arrest, resulting in the cardiac arrest.

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