CHAUVIN TRIAL - Observations of the second week of the trail by a retired trial attorney
Observations of week two of the Chauvin Trial – April 5-9, 2021
Day 6 (4/7) of Chauvin Trial – I was unable to watch the entire day, so my observations are short. The first witness was the emergency room doctor and I’m glad I missed that. The second and most important witness was Chief of Police Medaria Arrandondo who was willing to break the blue wall of silence to condemn the conduct of his former officer. In fact, there will be a total of 8 officers from the MPD who will turn on their former fellow officer, which is quite unprecedented.
Day 7 (4/6) of Chauvin Trial – morning session – the prosecution is presenting evidence about two different kinds of training given to all officers. Sgt. Ker Yang is the Crisis Intervention Training Coordinator and Lt. Johnny Mercil is the Use-of-Force trainer. They both testified that the way Chauvin placed his knee on Mr. Floyd’s neck is not part of the training. But neither witness was asked the ultimate question of whether Chauvin’s conduct was an unlawful use of force. This is the sleepy time portion of the trial, but to a certain extent it is going fairly quickly and the prosecution is laying the foundation for the opinions already given by Lt. Zimmerman and the Chief of Police who declared that what Chauvin did was unnecessary and uncalled for. I don’t know where this is going but I suspect there will be more police training experts who will testify as to the ultimate question of “unlawful use of force.”
The defense attorney is continuing to suggest that it was reasonable to continue to keep Mr. Floyd in prone position because he could possibly wake up and be violent. Lt. Mercil testified, however, that he’s never seen a man who was pulseless ever do that. The defense continues to suggest that the angry mob could have been a factor in Chauvin’s decision to continue to kneel on Mr. Floyd. Lt. Mercil said that was possible, but when the prosecutor on re-direct pointed out that the crowd was yelling, “get off of him” and “you are killing him,” that the officer should have taken that into consideration as well.
Day 7 of Chauvin Trial – afternoon session. First to be called was Officer Nicole MacKenzie, who is the medical support coordinator for MPD. She talked about training in CPR and when to employ medical assistance. The direct examination was short and sweet. The one thing that was helpful to the prosecution was that she disputed the officer’s statement, “If a person can talk, then they can breathe.” She said that just because a person is speaking does not mean they are breathing adequately.
Attorney Nelson’s cross examination was bringing home his argument about making sure it is safe for the officers to render medical assistance. She was agreeing with the defense attorney but got to a point where he was about to ask hypotheticals based on facts not in evidence, so she was dismissed. Defense plans to call her in their case in chief to elaborate about the impact the crowd had on the officers and the use of drugs has on a person’s body and response, most specifically about the concept of “excited delirium.”
The next state witness was the one I’ve been waiting for. He was Sgt. Jodi Stiger, who is with the Los Angeles Police Department and was retained to provide expert opinion on the excessive use of force. After considerable details into his background and qualifications, the prosecutor asked his opinion and he concluded, based upon his review of the videos, policies, etc., that the force used by Chauvin was excessive. The particular point at which it became excessive was when Mr. Floyd was put into prone position and he stopped resisting. The prosecutor at this point inquired about the fact that Chauvin asked for a hobble, he and the other officers discussed the use of the hobble and they decided against using it, which the expert said indicated further proof of the fact that Mr. Floyd had stopped resisting. There was a brief sidebar and the judge declared the day was finished at 4:30 (about an hour earlier than normal) with no explanation given.
Day 8 (4/7) of Chauvin Trial was long and tedious – More testimony from the retained expert on use of force, Sgt. Jody Stiger, who continued to state his opinion that under the Graham standard of what constitute reasonable force, what the defendant did in applying his left knee to Mr. Floyd’s neck and his right knee to his back, while Mr. Floyd was in prone position and handcuffed, was unreasonable and therefore an excessive use of force. He testified that the total duration of the use of excessive force was 9 minutes and 29 seconds. Also during this time period, the defendant was employing the pain compliance technique in that he was grasping his hand and pulling his left hand toward his head, which would have hurt quite a lot. The defendant never let up on this, even though it is only supposed to be a very brief attempt at compliance. When the prosecutor asked Sgt. Stiger if there were any other factors he could consider in assessing the use of force, he talked about the presence of other officers to secure the scene and noted there were 5 officers on the scene to one subject (Mr. Floyd). In other words, the crowd, which the defense calls an angry mob, was not a factor because there was plenty of officer support.
The rest of the day’s testimony focused on the Bureau of Criminal Apprehension’s investigation. Four people testified and the focus was on what was found in the cars. In Mr. Floyd’s car they found a marijuana pipe, several packets of Suboxone (which is a pill used by people trying to kick an opioid habit), two white pills and money. In the back seat compartment of the squad car there was a partial pill on the floor and 2 smaller pieces of pills on the seat. The issue of drugs became front and center during this testimony.
They also showed video of Mr. Floyd’s friend, Mr. Morries Hall, throwing something away, and the investigator assumed he was throwing away drugs. It remains to be seen whether this friend will be testifying since he is planning to plead the fifth if he does.
The drugs in Mr. Floyd’s car had markings on them that made them look like real pharmaceuticals, but it was concluded they were not legal drugs. They were a combination of Fentanyl (less than 1%) and Methamphetamine (between 1.9% and 2%). The pill found in the back of the squad car had less than 1% Fentanyl and 2.9% Meth. That pill also had evidence of Mr. Floyd’s saliva on the pill. The forensic chemist from Pennsylvania testified that the most common street drugs usually have less than 1% Fentanyl, but they also usually have 90-100% Meth, way more than was in the pills found in this investigation.
On cross examination defense tried to get Agent Reyerson (the chief investigator of this case from BCA) to admit that Mr. Floyd said “I ate too many drugs.” During a break, Agent Reyerson was allowed to review the video from which that statement was uttered and he returned to the stand and said that he heard Mr. Floyd say, “I ain’t doing no drugs.” It is interesting to see the defense squirm when that statement was clarified. The problem is the audio on the video was garbled and hard to hear. It is also interesting to note that Agent Reyerson is African American and was certain of what he heard. The white guys got it wrong. I wonder whether the jury caught that distinction as well.
The defense also chose not to cross examine the forensic scientists, which is why the state was able to get through so many witnesses in the afternoon. I suspect the defense will have their own experts on the issue of drugs.
Day 9 (4/8) of Chauvin Trail – The morning session consisted of an expert in pulmonary and critical care testifying on direct examination for about 2 ½ hours. I’ve learned more about breathing than I ever wanted to know. Dr. Martin Tobin has been studying breathing since 1981 and it is my opinion his credibility and expertise in unimpeachable. His very clinical explanations of the biology and mechanics bolstered his conclusion that Mr. Floyd died from a low level of oxygen which caused damage to brain and also caused a pulseless electrical activity, or arrythmia that caused his heart to stop. Commonly referred to asphyxia. The cause was fourfold – Chauvin’s left knee on neck; the pressure on the handcuffs and from the street; the prone position; and Chauvin’s right knee on back and arm. He used exhibits and diagrams effectively, pinpointing the exact time Mr. Floyd stopped talking and then stopped breathing. The jury was exposed to videos and photos of those exact moments, which for me were terribly difficult to watch over and over again. I don’t know how any living being cannot be moved by that.
The prosecution also had Dr. Tobin dispel all of the defense theories about possible causes of death. If Mr. Floyd had died of Fentanyl overdose, his respiration would have fallen to about 10 times per minute. His rate never fell from the normal rate of 22, so Fentanyl was ruled out by Dr. Tobin. If the cause was heart disease, a person with that problem would have respiration rate of 35-45 to compensate for bad heart. That was not the case here. The issue relating to Mr. Floyd’s diagnosis of Paraganglioma, which is a tumor found in paraganglion in pelvis. It is very rare, with only 6 reported cases and all of them died suddenly. Mr. Floyd did not die of sudden death. Finally, he explained the high level of carbon dioxide in Mr. Floyd’s system which was caused by lack of breathing and nothing more.
The bottom line is that Chauvin weighed 140 lbs and was carrying between 30-40 pounds of equipment. Dr. Tobin calculated based upon his observation of the orientation of Chauvin’s body, which was erect, and the fact that the toe of his boot was no longer touching the ground, 91.5 lbs of Chauvin’s weight was bearing down on Mr. Floyd’s neck at 8:23:14, which was 1 min. 39 seconds before he stopped breathing.
It will be interesting to see how the defense approaches the cross-examination.
Day 9 of Chauvin Trial – Afternoon session – The cross-examination of Dr. Tobin lasted for only 45 minutes. Attorney Nelson made the point that Dr. Tobin had the benefit of spending hundreds of hours reviewing all the documents and videos, but that the actual incident only took minutes. He also pointed out that he was not a police officer and was not aware of the police policies and procedures.
The issue of whether the concept of “if he can talk, he can breathe” was discussed. Mr. Nelson noted that even trained physicians can accuse a person of overexaggerating and will misdiagnose a patient’s breathing. The point he was trying to make is if a physician can miss it, a police officer could too, but Dr. Tobin also said that when someone stops breathing, 10 seconds later they may be dead, which is why this is a dangerous statement. He explained that talking happens only when you exhale. So you could be talking and then immediately thereafter stop breathing. Precious seconds can be lost utilizing that assumption.
The defense also tried to argue that the fact that there was no bruising on Mr. Floyd’s neck could rule out asphyxia and the doctor did not agree. The defense tried to suggest other possible causes like drugs, heart disease, or blood pressure and the doctor stuck with his opinion that it was lack of oxygen.
The next witness was a forensic toxicologist who tested the level of fentanyl and methamphetamine in Mr. Floyd’s blood, which was drawn at the hospital. Both drugs were at a very low level and when the toxicologist compared it to other cases that his lab had tested, the levels were found to be exceptionally low.
The next witness was Dr. Bill Smock, an emergency medicine physician specializing in forensic medicine from Louisville, KY. He is a paid expert. His opinion was that Mr. Floyd died from positional asphyxia or no oxygen left in his body. The cause was the pressure on his chest and back. Dr. Smock never testified who caused the pressure, which I thought was interesting. Dr. Smock ruled out the theory that Mr. Floyd was suffering from “excited delirium.” He also testified regarding the issue of tolerance to drugs and explained the different between overdose and intoxication. With an overdose of Fentanyl, a person is rendered comatose. Since Mr. Floyd was talking and breathing at a normal level, he was not overdosing.
On cross of Dr. Smock, I thought the defense attorney dug himself into a hole. He tried to dispel the argument that Mr. Floyd had developed a high level of tolerance to street drugs by suggesting that if someone had stopped using for a period of time, his tolerance level would go down. The doctor said it may decrease over a period of weeks or months, but certainly not days. On re-direct, the prosecutor said that if someone was alert and making sense, which Mr. Floyd was, that means he was not intoxicated. The doctor agreed. On re-cross, defense attorney said, “People who were more tolerant could seem more lucid.” The doctor agreed. So which is it, Mr. Nelson? Was his tolerance high or low? He’s boxed himself into a corner.
The State of Minnesota has hired two experts and flown many toxicologists in for this trial, which means they are investing a great deal in this case. There are at least 6 attorneys on the prosecution side from all levels. Let’s hope the investment pays off.
Day 10 (4/9) of Chauvin trail – The only witness of the morning was Dr. Lindsey Thomas, forensic pathologist called to testify as an expert. She is semi-retired and her credentials are stellar. She had in the past been a teacher/mentor of the Hennepin County medical examiner, Dr. Baker (who will be testifying after she is finished). She informed the jury that she was called by the state to help out in the case and she is doing so free of charge because she recognized the importance of the case. Her opinion was that Dr. Baker’s autopsy stated the correct manner (homicide) and cause (cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression) and explained her opinion in great detail. Ultimately she testified that there was “no evidence he would have died that night except for interactions of law enforcement.”
During cross-examination, the defense attorney boxed himself into a corner again. He got the witness to say that in a hypothetical situation where Mr. Floyd was found in his house dead and the police were not involved, that a medical examiner could conclude based upon the condition of his heart that he died of a heart attack. She said yes. He made the same hypothetical regarding drugs, and she admitted that if the police were not involved and there was the level of drugs in his body that was found in this case, that the medical examiner could rule it an overdose. When the prosecutor re-directed her, he essentially got her to say that if the police had not subdued, restrained and compressed his body, we would not be here at all and Mr. Floyd would be alive. Touché!
The other notable moment on cross was when the defense attorney was discussing a study conducted in Canada where they reviewed actual police cases where the prone position was used. 3,000 cases were analyzed out of 1.1 million police interactions and there were no deaths. Dr. Thomas’s response was, “Isn’t that amazing.” She went on to talk about the number of times in America a medical examiner investigates deaths as a result of police interactions involving prone suspects. She was amazed that there were no deaths in Canada and wondered why.
The defense vainly attempted to get her to agree that fentanyl or meth could have caused Mr. Floyd’s death or his heart or his adrenaline level and he failed to make a dent, in my opinion. Fortunately, we did not have to watch any videos or see photographs of the incident, but the jury was given photographs of the abrasions on Mr. Floyd’s face, shoulder and knuckles, but those photos were not published for the public to see, mercifully.
Day 10 of Chauvin Trial – afternoon session – The Chief Medical Examiner, Dr. Andrew Baker, testified for only an hour on direct. It mostly mirrored Dr. Thomas’ testimony. The prosecutor asked if Dr. Baker examined the contents of Mr. Floyd’s stomach and he said he had and found just fragments of digested bread. He did not find any evidence of pills in his stomach. The only major distinction from Dr. Thomas’ testimony was that Dr. Baker talked more directly about the heart issues Mr. Floyd had prior to his death. His arteries were blocked between 75 – 90% and he had high blood pressure. He noted these things but ruled them out as the cause of death. Going one step further, he indicated that his heart was in such a condition that the added stress caused by what the police were doing to him is what caused his death. He also dispelled the notion that Mr. Floyd died of a drug overdose. While those other significant conditions, like the presence of fentanyl, meth or his heart disease might have contributed to his death, they were not the direct cause.
On cross Dr. Baker was questioned for another hour about the significant conditions that “played a role” in Mr. Floyd’s death. One focus was on meth and he stated that no level of meth is good for anyone and especially someone who has heart disease. Defense counsel tried to impeach him based on things he said after he concluded the autopsy, but Dr. Baker was well able to clarify what he had said.
The re-direct was less than 5 minutes and the prosecutor asked whether, after all the questions that Mr. Nelson asked on cross-examination, his autopsy findings had changed. They hadn’t.
There is one more witness for the prosecution and it is a medical doctor. Because it will go too long to fit into today’s session, the jury was sent home for the weekend and that doctor will be first witness for Monday. I suspect that will be the conclusion of the state’s case-in-chief and we will start to hear from defendant’s expert witnesses who will try to cast some doubt on all the evidence presented so far.