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Chauvin Trial Day 9 Wrap-Up: Medical Experts Resuscitate Prosecution Case

Chauvin Trial Day 9 Wrap-Up: Medical Experts Resuscitate Prosecution Case

Medical experts gave testimony state needed, without imploding on cross

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.

Personal Message from Andrew: Hey folks, obviously thousands of you are new to me and my firm, Law of Self Defense, and I have to say it’s really humbling to see this onrush of attention–and thanks to so many of you for your kind words and encouragement! For those who’d like to know more about what we do, I’d like to offer each of you a complimentary copy of our best-selling book, “The Law of Self Defense: Principles,” a plain-English explanation of use-of-force law, for FREE. Normally the book is $25 + S&H, but if you’ll just cover the S&H cost of getting the book to you, we’ll cover the $25.  If you’re interested–and I hope you are!–just click here: FREE COPY Law of Self Defense: Principles Book.

Overview

Today the state presented three medical/science experts. The first was Dr. Martin Tobin, Physician in Pulmonary and Critical Care Medicine, Chicago, presented as an expert witness on respiratory matters. He was followed by Daniel Isenschmit, Forensic Toxicologist, NMS Laboratories, who was involved in drug testing Floyd’s blood. And the day closed with Dr. William Smock, Emergency Medical Physician, and self-described “Police Surgeon,” who discussed excited delirium and some other issues.

OK folks, I won’t bury the lead—today’s trial proceedings looked a lot more typical for a prosecution presenting its case in chief than has been the case so far in Minnesota v. Chauvin.  What I mean by that is that the state finally had a day in which its own witnesses did not end up doing the defense more good than themselves.

We’ve grown so accustomed to Nelson simply having his way with prosecution witnesses that today might appear as if it were bad for the defense.  It would be more accurate to say it was not a great day for the defense—which is quite a change from past experience.

In truth, however, this is what every day of the trial should have looked like so far. Right now it is the prosecution in charge, presenting their case, in control of direct questioning.  The defense is very limited in what they can do on cross-examination. They can’t simply produce their own evidence for the jury, they can’t argue with the state’s witnesses, they are limited in their cross-examination to only the issues the state has chosen to raise in their direct questioning.

These are all real and substantive constraints on the defense while the prosecution is presenting their case in chief.  The amazing thing about this trial to date is how well the defense has been doing even while bound by those constraints.

Today was, again, far more typical of what should be expected.  The prosecution is putting forth its witnesses, framing the issues the way they want them framed, asking the scope of questions the way they want them scoped—every day should make the prosecution look just awesome.

The turnaround on that perception really ought not be expected until the defense has their turn at bat, gets to present their own witnesses, to frame the issues the way they want them framed, ask the scope of questions the way them want them scoped—and the state finds itself bound by all the constraints that so far have limited only the defense.

This is also why I urge all of you to not make day-to-day judgments about how the trial is going, at least not in the sense of expecting any day’s events to predict the likely outcome of the trial.   A football game is not decided in the first half, and a criminal prosecution ought not be expected to be a wrap when only the state’s version of the narrative has been fleshed out in court.

That said, the state got done what it needed to get done today with its expert witnesses, who unambiguously told the jury that Floyd’s death was the direct result of the police restraint used to hold him for EMS, period, and that nothing else mattered. Not Floyd’s fentanyl level, not Floyd’s substantial co-morbidities. Not Floyd’s poorly made decision to fight four police officers against lawful arrest.

So, as would normally be expected at this point in the trial, but which has gone missing up to now, the state had a good day today.

That’s not to say the defense did poorly, within the constraints already described.

I will note that Defense Counsel Eric Nelson definitely appeared tired today, he was hoarse, and clearing his throat. Could he be wearing down? With any luck tomorrow, Friday, will be an early day and he’ll have the weekend to get some R&R. I trust he’ll be back to form on Monday.

It must be said that getting handed new state exhibits at night, as occurred to him just last night, after being in court all day, and knowing that review of those exhibits will be necessary for cross-examination of witnesses today, certainly can’t be making his job any easier.

Dr. Martin Tobin, Physician in Pulmonary and Critical Care Medicine, Chicago

A couple of interesting points about Dr. Tobin, up front. First, although he normally charges substantial fees ($500 per hour) for acting as an expert witness in court, he agreed to provide his services in this case for free.  His explanation is that he’s never been an expert witness in a criminal trial before, so didn’t want to charge.  I suppose that could be why. Alternatively, I suppose it’s possible he’s motivated to do the job for free for political reasons.  Who knows?

Second, while Prosecutor Blackwell was walking Dr. Tobin through his background, training, education, expertise, and all the other stuff you do to qualify your expert in front of the jury, Dr. Tobin mentioned that a chunk of his practice consists of treating patients who require mechanical ventilation due to a variety of underlying causes—including drug overdose. No kidding.

Third, Tobin would arrive at his expert opinion after watching videos of the event literally “hundreds of times,” as well as after leisurely reviewing perhaps thousands of pages of investigative reports, forensic results, medical history and more.

None of that, of course, was available to officers on scene as they fought an intoxicated 6’ 6” 230-pound  Floyd as he violently resisted lawful arrest, in the presence of a hostile and threatening crowd, as they waited for the code 3 “lights and sirens” requested paramedics to finally arrive on scene.

In any case, Tobin gave Prosecutor Blackwell on direct questioning exactly what they needed from him, and that was an expert opinion, to a reasonably degree of professional certainty, that what killed Floyd was impaired breathing that resulted in sufficiently low oxygen levels to cause his death, as a result of the manner in which he was restrained by Chauvin and the other officers.  Here’s video of his testimony that captures those statements.

So there we have it: According to the opinion of the state’s retained expert witness, it was Chauvin et al. who killed Floyd.  Exactly as the state’s expert witness is supposed to do.  Surprise, surprise.

Blackwell stepped Tobin through more than two hours of direct questioning, during which Tobin provided a lengthy rationale for how he’d reached his opinion. Frankly, the entire rationale struck me as working back from a conclusion.  That is, it appeared that Tobin started with the conclusion that the officers’ conduct had killed Floyd, and then worked backwards from there to build out a framework that led him right back to where he’d started.

Of course, circumstances were quite different for the officers actually dealing with Floyd, who didn’t have the ability to see into the future and know that Floyd would die that day, nor did they know a great many other relevant facts made available to Tobin but unknown to the officers attempting to, first, lawfully arrest Floyd and, second, get him apparently badly needed medical care.

In addition, Tobin’s path to reach his opinion involved a substantial amount of high-level medical expertise, complex biological and physics models, even mathematics of a degree that the notation was indecipherable to this small-town lawyer. How any of this would be actionable by police officers called to a crime scene and compelled to fight a large and violently resisting suspect was not explained.

Tobin also demonstrated an amazing ability—or, at least, claimed an amazing ability—to make precise biological determinations from cell phone and body camera video.  For example, Tobin claimed to be able to tell the precise instant when Floyd suffered brain damage as a result of low oxygen levels (it was when Floyd abruptly kicked out a leg).

He could discern precisely what was happening within Floyd’s body, despite there being no physical manifestation of those processes either while Floyd was alive or upon medical examination after Floyd had died. Indeed, he claimed to discern the exact moment that Floyd died, by the expression on Floyd’s face:  “One second he’s alive, and one second he’s no longer.”

He had models illustrating loses in lung function to the individual percent, although he had no personal knowledge of Floyd’s respiratory capacity when alive.

When asked by Blackwell whether it was true that if someone could speak, it meant they could breathe, Tobin cautioned that this was a dangerous view, because just because someone was breathing now didn’t mean they would be breathing 10 seconds from now. Which strikes me as just another way of conceding that the actual statement itself is, in fact, true—if you’re speaking, you’re breathing.  Nobody has ever claimed that if you’re speaking now it means you’ll be breathing later.

To undercut the theory that Floyd might have died not from police restraint but because of fentanyl overdose, Tobin argued that this could not be the case because fentanyl slowed the rate of respiration, and from the video he measured Floyd’s rate of respiration as normal.

Unaddressed on direct was the fact that Floyd’s respiration was being subject to a wide variety of biological drivers besides fentanyl—including arguably the combination of Floyd’s COVID history and the prospects for long-term lung disfunction, his existing cardiovascular disease, the presence of methamphetamine in his system, and his just completed 10-minute physical fight with multiple police officers.

The bottom line, again, is that Tobin on direct delivered what any prosecution should expect their expert witnesses to deliver—the opinion they needed to buttress their narrative of guilt.

Here’s that couple of hours of direct questioning of Dr. Martin Tobin by Prosecutor Jerry Blackwell:

Tobin Direct Questioning

On cross-examination, Nelson touched on many of the points I hit on above.

Police officers have nowhere near the medical expertise of Tobin, indeed they’re not even trained to the level of an EMT.

Tobin had the luxury of watching the videos hundreds of times, all different angles, still framing, slow motion, and so forth, as well as seven meetings with the prosecutors, including as recently as yesterday and the day before.

Tobin had also had the opportunity to prepare for the prosecution a whole series of exhibits—diagrams, illustrations, graphs—to use alongside his testimony.

Exhibits that were provided to Defense Counsel Nelson … last night.

That’s not a typo. Last. Night.

Nelson also emphasized that the biological circumstances around Floyd’s death were not a simple model of four force factors and limited to the conduct of the officers, as simplistically described by Tobin, but in fact were much more complex. Floyd’s drug levels, his badly impaired health, his decision to fight four police officers for 10 minutes before they were compelled to restrain him for EMS, all played a role in that day’s outcome.

Tobin, however, insisted that it was all very simple. Just one biological process resulting solely from the officers’ force upon Floyd was all that mattered. Again, exactly what the state had ordered up from their expert witness.

On the “if you can speak you can breathe” issue, Nelson noted that in Tobin’s own report he’d written that even physicians often believe this to be true. Tobin agreed.  You may recall that state witness MPD use-of-force trainer Lt. Mercil had previously testified that he himself taught that concept when instructing officers.

Nelson pointed out that Tobin’s purportedly precise calculations of how many pounds of force Chauvin was placing on Floyd were based on assumptions.  You’ve assumed the weight of Chauvin on May 25, 2020? Yes. You’ve assumed the weight of his equipment, you didn’t actually weightthat equipment?  Correct.

Body weight force model assumes that Chauvin kept his weight equally balanced on both legs throughout his restraint of Floyd, but in fact his weight was pretty frequently re-distributed.  That’s correct, Tobin answered.

The biological models purporting to pin down precisely what happened to Floyd internally as he was restrained by police were based on generalized assumptions for a 46-year-old of the same height and weight as Floyd. Yes.

Who is healthy. Yes. Of course, we know that Floyd was far from healthy, with severe cardiovascular disease—including a 95% blockage of a coronary artery and seveer hypertension—as well as recent COVID

In the real world, Nelson suggested, the specific biology of Floyd comes into play.  That’s correct, answered Tobin.

On the issue of fentanyl, Tobin insisted that the drug could not have played a role in Floyd’s death because he claimed Floyd’s respiration was not depressed, as would be the case with fentanyl overdose.  Might there be competing factors that could offset fentanyl’s respiratory effect, at least transiently?  Meth on board? Adrenaline from a physical fight with police?  Tobin downplayed the importance of these factors.

Also on the topic of fentanyl, Tobin insisted that fentanyl made people sleepy, even unconscious, when it killed via overdose, and Floyd had after all just been fighting police.  In response Nelson brought up the pill fragments found in the squad car, the pills that were found to consist of fentanyl and meth, covered in Floyd’s DNA.

If Floyd had consumed the pills in the squad car immediately before being proned on the street, wouldn’t we expect it to take some five minutes before the drugs reached peak effect? Yes, answered Tobin. And continue their effect after that point? Yes.

This would coincide, of course, with that period of time in which Floyd was visibly slowing down and apparently losing consciousness.

With respect to how Tobin had purportedly identified the precise moment at which Floyd had suffered brain damage, the kick of Floyd’s leg, Nelson asked if it might be reasonable for a police officer to perceive such movement as continued resistance.  The state objected, and that objection was sustained—but the jury heard the question posed, which was really the point.

And that about wrapped up Nelson’s cross-examination of Tobin:

Tobin Cross-Examination

Make no mistake, however, that this cross-examination was nothing like the train wreck the state had experienced with so many of their earlier witnesses, including experts, including MPD officers.  Nelson hit important points on cross-examination, but Tobin remained adamant that it was the officers’ restraint of Floyd that killed him, period.

In short, as already noted, Tobin served the purposes the state intended for him when he was retained as a medical expert for this trial, precisely as he ought to have done for the state.

There were also brief re-directs, re-cross, and even a re-re-direct of Tobin, but none really amounted to much. In any case, here they are:

Tobin Re-Direct

Tobin Re-Cross

Tobin Re-Re-Direct

Daniel Isenschmit, Forensic Toxicologist, NMS Laboratories

The next state’s witness was Forensic Toxicologist Daniel Isenschmit, of NMS Laboratories, whose direct questioning was conducted by Prosecutor Erin Eldridge.

Isenschmit had been involved in toxicology screening of Floyd’s blood, with a particular focus on concentrations of fentanyl and its metabolites, as well as methamphetamine.

The purpose of this testimony was to play around with various statistics to encourage the jury to infer that Floyd could not have died of fentanyl overdose. In this context, Isenschmit compared the concentrations of fentanyl, metabolite afentanyl, and methamphetamine to selected populations of people who had also tested positive for these drugs, with the goal of showing that, hey, look, Floyd’s drug levels weren’t really all that high after all!

As a reminder, Floyd had a concentration of fentanyl in his blood of 11 ng/ml, often described (including by me) as a three-fold fatal dose of the drug.  It must be said that this fatal dose is presumably for a naïve user of fentanyl, and that a chronic user could have a substantially higher tolerance—and indeed, would be expected to.

Of course, we also have testimony from Floyd’s co-addict lady friend that he had (she claimed) been clean for some lengthy period prior to the May 25, 2020 arrest, right up until shortly before that event when he began using again. Tolerance is lost as well as acquired, so to what extent Floyd had fentanyl tolerance on the day of his death is probably unknowable.

In any case, Isenschmit would present the jury with a chart like this one:

The point was to illustrate that, hey, when NMS Labs tested the blood of 19,815 people who had died and who also had fentanyl in their system, those people had an average concentration of 16.80 ng/ml, and a median level of 10.0 ng/ml.

Well, look at that—now Floyd’s concentration of 11 ng/ml doesn’t look so bad? I mean, look at all those dead people, they had a way higher average concentration of fentanyl than did Floyd. Surely that means Floyd could not have died of fentanyl overdose!

One obvious weakness of this argument is rather dependent on people not understanding what an average and a median are—and that’s probably a pretty safe assumption these days.

The median of 10 ng/ml, for example, means that exactly half of the dead people had blood concentrations greater than that amount—but it also meanst hat half of the dead people had blood concentrations lower—and therefore lower than Floyd’s concentration of fentanyl.

Even worse, however, and a point brought up by Nelson on cross-examination, these dead people were not necessarily people who died of fentanyl overdose—they were just people who died, who happened to also test positive for fentanyl.

Could they be people who were fentanyl users who had died not from fentanyl but because they’d been shot? Sure. Because they’d been in a car accident? Sure. Because they’d had cancer? Sure.

Did Isenschmit know what any of these people had died from? He did not.

Was it possible that of the 19,815 people whose positive fentanyl result was included in this graph, fully 19,814 of them had died of gunshot wound?

It was unlikely, Isenschmit replied. But of course, that’s not really the point.

If the presentation of this data is to suggest that Floyd’s 11 ng/ml was too low to have killed him, this data is in fact entirely useless for that purpose, but we’re not comparing apple to apples, fentanyl overdose death to fentanyl overdose deaths.

A second data presentation, this one in the form of a pie chart, was also presented, for much the same purpose:

This one purported to compare fentanyl concentrations found among people involved in DUI, on the one hand, and Floyd, on the other hand. Here the data representation was really remarkably disingenuous, particular in the manner in which data was sorted and organized within the pie.

I mean, look at that—about 10% of the people involved in DUI cases had fentanyl levels comparable to those of Floyd! And they were alive, driving cars! Surely that means Floyd’s mere 11 ng/ml of fentanyl could not have been a fatal dose!

Much like the chart above, however, the presentation of the data here intended to mislead. Before, we were presented with dead people who tested positive for fentanyl, but had to dig before we learned we had no idea whether they’d died of fentanyl or from some entirely unrelated cause.

Here we are presented with DUI cases, but guess what—we have no idea of any driver’s intoxication was the result of fentanyl or some entirely unrelated substance—meth, pot, even simple alcohol.

So, again, we’re not comparing apple to apples.

There is, of course, a fundamentally different flaw in all of this data presentation and that is that even if we had apples to compare to apples, all the apples are substantively different—so not even that comparison can be done.

If we had the identical fentanyl dose, and gave it to two different people, the physiological response could easily be wildly different, depending on their size, general health, developed tolerance to fentanyl or other opiates, and more.

But we never have identical fentanyl doses, because there’s no control for that in this data.

Some of these people were likely taking fentanyl lawfully prescribed by a physician for lawful purpose.  Others were taking prescription drugs, but unlawfully. At least those two populations have some idea of the dose they were ingesting, because they are consuming pharmaceutical grade fentanyl.

Many of those people, however, are consuming street fentanyl—and there are no Good Manufacturing Practices for street fentanyl.  No two pills are the same even physically characteristics, much less in their constituent chemistry.  When one takes a street fentanyl, one is taking an unknown dose of fentanyl, and one likely mixed with some other combination of illicit drugs, methamphetamine being a common pairing.

The direct of Isenschmit then stepped through a similar faux data representation in the context of methamphetamine, but I won’t bother dragging you through that here.

I will note, however, that it does appear that Floyd’s concentration of methamphetamine was rather low.  This raises the legitimate question of whether it could have had the “offset” function to counter the sedative effects of fentanyl as has been occasionally suggested by Nelson.  Obviously, the state’s witnesses play down that possibility, so having heard only them the theory appears tenuous. We won’t really have an informed understanding, of course, until we hear from the defense medical experts later in the trial.

Another issue raised by Eldridge on direct of Isenschmit was the ratio between fentanyl and its metabolite afentanyl.  So, when fentanyl is ingested we get an immediate level of fentanyl in the blood, and then over time the fentanyl is metabolized to afentanyl, which can also be measured.  If limited to that single dose, eventually the levels of fentanyl will drop as the levels of the metabolite afentynal will increase.

Floyd had significant levels of both fentanyl and afentanyl in his system. Eldridge argued from this that, hey, look, Floyd must have taken his last dose of fentanyl some time ago, because a bunch of it had already metabolized to afentanyl—therefore, given that the peak effect of fentanyl occurred five minutes after dosing, Floyd could not still have been under the effect of fentanyl when subject to arrest.

If Floyd had only just taken fentanyl moments before, there would have been no time for afentanyl to be present at such meaningful levels.

There is, of course, an entirely distinct and opposite interpretation of that same data, and it was one pointed out by Nelson on cross-examination.  What if we’re not talking about someone who took just a single dose of fentanyl, but rather someone who took fentanyl on a habitual basis—like, you know, a opioid drug addict like Floyd.

In that case we’d expect him to take fentanyl dose 1, fentanyl levels would quickly spike, then begin to drop as levels of the metabolite afentynal increased.  Left there, eventually fentanyl would go to zero, even as afentynal was increasing.

But what if the user than took a second dose of fentanyl—perhaps while fighting multiple officers in the back of a squad car, spewing partially chewed and spit-covered fentanyl tablets over the back seat of the vehicle in the process? Then we’d expect to see the afentanyl levels present for the metabolization of dose 1, but also high fentanyl levels present from the just-taken dose 2.

Nelson pointed out some of these data incongruities and metabolite deceptions in his cross of Isenschmit, but I’m pretty sure that he wasn’t a statistics major in college, and so it was difficult to substantively and clearly undermine Isenschmit’s presentation of these data and figures.

And even if Nelson had possessed the necessary statistical savvy, the effectiveness of deploying it would also be a function of the ability of the jury to absorb what was being said—and I expect there wasn’t all that much of that ability for much of this jury.

If all Isenschmit accomplished for the state was to throw some data and charts in front of the jury at the prosecution’s request, and created the inference that this meant the prosecution’s narrative on the role of fentanyl in Floyd’s death was supported by “the science,” he accomplished his mission for the state—at least, again, until the defense can bring their own medical experts before the jury.

Here’s the direct, cross, and re-direct of Isenschmit

Isenschmit Direct Questioning

Isenschmit Cross-Examination

Isenschmit Re-Direct


Dr. William Smock, Emergency Medical Physician, “Police Surgeon”

The next state medical expert witness, and the last of the day, was one Dr. William (“Bill”) Smock, an Emergency Medical Physician who claimed specialized training in forensic medicine.  Direct questioning was conducted by Prosecutor Jerry Blackwell.

Frankly, Dr. Smock struck me as a bit of a nut job.  He was portrayed by the state as having a substantive expertise in forensics.  In fact, a close reading of his self-stated background and qualifications suggests his expertise is much more akin to that of a hobbiest in forensics than actual formal expertise.

Further, he oddly informed the court that he engaged in “living forensics,” which he described as applying the same forensic techniques to living patients as was more routinely applied to corpses. I’m presuming that does not include autopsy.

Further, Dr. Smock is not board certified in forensics, has no degree in forensics, and has never been employed to do forensics.  Rather, he has “specialized training” in forensics.  This could simply mean that he has a personal interest in the subject and attends local continuing medical education courses in the subject. Oh, and he subscribes to a forensics science journal—though I note he did not say he actually reads it, he only said he “gets it.”

Like Dr. Tobin at the start of the day, Smock was present for the explicit purpose of sharing his expert opinion that Floyd’s death was the result of hypoxia induced by police restraint of Floyd, period.  And he did that.

Indeed, he stated outright at the start of direct questioning: “Floyd died of positional asphyxia from pressure to his chest, back, and neck.” Period.

He had as a second purpose to share his opinion that excited delirium could not have been a causal factor of Floyd’s death, and he spent considerable time during his direct questioning focused on this particular issue.

Specifically, he showed a list of 10 characteristics of excited delirium, announced that at least 6 of the 10 must be present for a diagnosis of excited delirium, and then concluded that in fact not a single one of the 10 characteristics could be found in Floyd—and thus excited delirium was off the table.

I found Smock’s testimony on this point to be really disingenuous, in that he would carefully cherry pick Floyd’s conduct from different points during the interaction with police until he found evidence that was contrary to a diagnosis of excited delirium—and then would choose the next example of Floyd’s conduct from a different point in the Floyd timeline entirely.  As a result, his portrayal of Floyd as not suffering from excited delirium was made up of a patchwork of different Floyd characteristics chosen from different points of time.

Here’s Smock’s slide with the 10 characteristics of excited delirium:

Note that one of these is “constant/near constant physical activity.”  In concluding that this characteristic was off the table in terms of a diagnosis of excited delirium that could have caused Floyd’s death, Smock pointed to the period very late in Floyd’s restraint and pointed out that he wasn’t moving much.

Well, of course he wasn’t—he was probably dead, or about to die. And that period of relative inactivity would be true of every single person who has ever died while experiencing excited delirium—once dead, they engaged in very limited physical activity.

Another factor is “unexpected/unusual strength.” In this context Smock claimed this characteristic was missing because Floyd wasn’t merely hurling the officers off him like the Hulk.  Of course, it’s also true that early in the confrontation Floyd managed to fight off four police officers attempting to place him in a squad car until they gave up the effort as futile. If that’s not remarkable strength, I don’t know what is.

I could go on with other characteristics, viewed from one perspective by Smock for the jury, but also readily viewed from an entirely different perspective by a reasonable commentator—but the truth is it doesn’t matter.

The legal question on the subject of excited delirium is not whether Floyd’s conduct and appearance actually met the clinical criteria for diagnosis as that would be applied by a highly trained and experienced physician with the appropriate background and education—you know, like Dr. Smock.

Rather, the legal question is whether a reasonable police officer could have believed that he might be dealing with a citizen suffering from excited delirium, thus warranting use of the police-trained response for that condition, which is full-body restraint, from head to toe, until EMS arrives with the ketamine.

It’s not important for legal purposes whether officers possessing such a believe are correct. It’s only important for legal purposes that the belief, even if mistaken, was reasonably and genuinely held, given the background, training, and experience of a police officer not even trained to EMS standards.

Whether a medical doctor making an evaluation with the luxury repeatedly watching a variety of videos from all different angles, the full medical history of the suspect, as well as the suspect’s autopsy and toxicology results, would have come to the same conclusion is entirely irrelevant to whether the officer’s conduct was reasonable and lawful.

Smock was also used to attack the defense theory that Floyd’s fentanyl concentration might have contributed to his death, and he did so in a genuinely ridiculous manner.

Why, Smock recounted, there was one time when Floyd was brought to the hospital after taking 7 or 8 fentanyl pills, and it didn’t kill him. Indeed, all they did was watch him for a while and then let him go.  (This was likely the year-earlier drug ingestion event by Floyd upon police contact.). Based on that experience, the notion that 11 ng/ml of fentanyl might have killed him on May 25, 2020 was ridiculous.

The flaws in this reasoning are obvious and numerous.

First, we have no idea if Floyd had a substantially higher tolerance at the year earlier event than he did on May 25. Indeed, we have reason to believe that his tolerance on May 25 may have been much reduced, based on the testimony of his co-addict lady friend that he had been “clean” for a lengthy period of time leading up to that date.

Second, on the year earlier event he’d consumed fentanyl and had a bad response, but there was a lot of things that he didn’t do like it was May 25, 2020. For one, he didn’t fight police for 10 minutes as they attempted to lawfully load him into a squad car, even as he was apparently munching on who knows how many fentanyl tablets in the process.  He also wasn’t subject to arrest and restraint for 10 minutes or so while officers waited for the EMS they’d summoned on “code 3” lights and sirens basis.

As has always been the case, it is most likely not that any single factor killed Floyd, but that all the factors, working in combination, killed Floyd—his fentanyl levels, his compromised physiology, his lawful restraint by police, his poorly made decision to fight four officers for a full 10 minutes, and more.

Nelson did an OK job on cross-examination of Smock, but Smock was an experienced expert witness who knew who was paying him $300 an hour, and given that opposing counsel isn’t actually allowed to argue with the other side’s expert witnesses, there’s only so much Nelson is able to do in cross.

Again, the real counterpunch from the defense can’t realistically be expected until the defense presents its own case in chief and calls its own medical experts on direct.  We’ve simply been spoiled in this trial with how skillfully Nelson has been able to routinely turn the state’s expert witnesses against them. That is not the norm, and ought not be expected.

In any case, there’s the direct, cross, and redirect of Smock:

Smock Direct Questioning

Smock Cross-Examination

Smock Re-Direct

Bottom line, the state finally had a non-implosive day at trial, which is just another way of saying that today was the normal kind of day one should typically expect with a prosecution preventing their case in chief.  It’s supposed to look good for them right now. That’s how it works. The state’s narrative is supposed to take its hits not during their own case in chief, but only after the defense gets their turn on the offensive.

OK, folks before I close out for the evening, I feel obliged to let you all know that I will not be covering the trial tomorrow, as I have been doing since jury selection began.  I’m afraid I have other obligations to attend to.  I will therefore leave you in the good hands of Professor Jacobson and the wonderful contributors and staff of Legal Insurrection.

But worry not, I’ll be back on the case come Monday!

Until then, stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike. He wrote the first edition of the “Law of Self Defense” in 1997, which you can now order in its current edition for just the price of shipping and handling by clicking here.  To know YOUR state’s use-of-force laws in an actionable way that will keep you safer physically and legally, take our state-specific advanced use of force class either streamed online or via a shipped DVD with a 100% no-question- asked money-back guarantee, here:  Law of Self Defense State Specific Use-Of-Force Class.

[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]

 

 

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Comments


 
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 1
oogabooga | April 8, 2021 at 11:21 pm

Dear Mr. Branca,

Do you think prosecution got a serious advantage from this one? Would you say this could significantly increase the likelihood of a conviction?

    I’d say today was best described as an OK day for the prosecution, they checked the boxes they wanted to check today.

    It’s not a “win.” It’s one good day out after what has been 8 pretty bad ones.


       
       0 
       
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      Joeybags4 in reply to Andrew Branca. | April 9, 2021 at 6:54 am

      Im curious Mr. Branca, are you aware of whether Nelson objected to this late discovery? I would hope so. Further I would assume if Judge allowed it that this is appealable. My final point is that these freeze frame photos were more prejudical than probative. DC foot may have been raised for a billionth of a second or all 9 minutes. How can you tell from clip. Did Nelson, not having time, miss this objection too?


       
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      drozz in reply to Andrew Branca. | April 9, 2021 at 7:44 am

      did Nelson question Smock’s credibility at all? or is this frowned upon


     
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    Eddie Baby in reply to oogabooga. | April 8, 2021 at 11:48 pm

    The prosecution avoided self-immolation. That is a good day for these guys.


     
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    oulawyer in reply to oogabooga. | April 9, 2021 at 6:33 am

    Counselor, as an attorney myself I wanted to commend you on your trial analysis to date and to point out one detail I found important that I was surprised you didn’t seem to mention. During the list and testimony as to the Excited Delirium factors during direct, I immediately perked up when the issue of attraction to glass, mirrors, lights on vehicles was mentioned. Didn’t Floyd bang his head/mouth against the plexi-glass divider inside the squad car and that injury necessitated the EMS call and part of the decision to let him out of the vehicle? If he hit his head on the plexi-glass divider that would seem to meet #2. After #2 as this “expert” continued I was shocked that he said there was no evidence of the other E.D. factors when it seemed in fact 7 factors were present and possibly 8 factors. It will be interesting to see how the defense experts respond to the “experts” statistical data and analysis today.


       
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      ss396 in reply to oulawyer. | April 9, 2021 at 10:23 am

      I also wondered if those 10 signs of excited delirium have a basis in medical literature, or if they were put together for this trial? “#3 – Failure to respond to police presence” seems awfully specific; not everyone going into this delirium is going to do so in the presence of police. “Failure to respond to attempted assistance” would have been more believable. I also notice it didn’t say “THE 10 signs”, which implies that there could be other signs. That’s why I question the medical basis for them, and their necessity + sufficiency.

Thank you for your dedication to blogging this trial, Mr Branca!


 
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BillyHW | April 8, 2021 at 11:46 pm

No video commentary today?


 
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BillyHW | April 8, 2021 at 11:50 pm

I hope the jury can see through these phony “experts”. They even contradicted each other multiple times.


 
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BillyHW | April 8, 2021 at 11:50 pm

The only thing I trust less than a paid stooge is an unpaid stooge.


 
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Midfiaudiophile | April 8, 2021 at 11:59 pm

The excited delirium bit was weird to me as well. “We look at footage of Floyd in the store, and he’s not breaking any glass, which people with excited delirium seem to feel is a threat”… but then he doesn’t consider Floyd’s behavior in the store as an example of constant physical activity. He did that odd little dance, he kept walking back and forth all over the place, etc.

Why is the store only valid for one of the ten diagnostic elements?

Similarly, wrt Fentanyl overdose. “Mr. Floyd would have been asleep if he had had a Fentanyl overdose”… you mean like he was in the driver’s seat of his car when Mr. Martin came out to get a real $20?


 
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bernie49 | April 9, 2021 at 12:15 am

What today felt like to me was playing chess against myself. I always seem to win. It is when there is an actual opponent – machine or person – that I tend to lose. If Nelson had little chance to review and have help reviewing Tobin’s exhibits then it is no wonder he couldn’t lay a glove on the Doctor.

What I do not know is the nature of the counter-arguments that the Defense will muster. The defense can no longer rely on the Prosecution to do its job for it.

A model is a hypothesis.


 
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foospro86 | April 9, 2021 at 12:33 am

Atty Branca, no one, including the defense, has yet brought up that Floyd also had SICKLE CELL TRAIT. That fact is in the autopsy report. It is directly and very relevant to the issue of low oxygen levels.
Considering what the defense has already referenced of Floyd’s health problems, why hasn’t this been brought up yet? Should be added the pile of medical problems to support reasonable doubt.


     
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    Gremlin1974 in reply to foospro86. | April 9, 2021 at 8:01 pm

    Probably because just having the “trait” does not indicate that the person has ever had a sickling crisis. Many live normal completely healthy lives and never have a sickling crisis. In fact the fact that the diagnosis is still listed as a “trait” would indicate that the has never had issue with sickling. So it is doubtful that it would have had any impact.


 
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buck61 | April 9, 2021 at 12:37 am

Nelson did seem fatigued today and he was losing his voice. I know he was very upset when it was discovered the state sent new exhibits on short notice with no time for review. He handled it better than I would have. I would have been all over the state regardling that and the judge would also be getting an earful over that as well.
.


     
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    Thatch in reply to buck61. | April 9, 2021 at 3:16 am

    A lawyer should just call in sick every time the other side pulls that trick of handing over stuff the night before. What can the court do other than give him extra time?


 
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Keith_ | April 9, 2021 at 12:40 am

Regarding the fentanyl data from NMS labs while it is true that including data from all deaths, e.g. persons who died from gun shot wounds distorts the data but not in the direction that it would hurt the defense. We know for example the lowest lethal concentration of fentanyl is about 3 ng/ml. Since the data from NMS labs includes cases with 0-3 ng/ml this results in the median level being lower than if the data only includes subjects with 3ng/ml or more in their system. Not sure what Nelson was trying to gain with that argument. I read recently (wish I had booked marked ) that in a study of fatal fentanyl O.D.’s the median was ~9 ng/ml. This was a national study not NMS’ proprietary data. Hopefully the defense expert witnesses are armed with better data


     
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    OldSchool in reply to Keith_. | April 9, 2021 at 8:58 am

    The graphs of concentration are a study in how to lie with statistics.
    First, all are post mortem -> and the cause of death is not identified. For the moment, let’s presume all are overdoses. Someone takes a large dose of drug, an overdose. Within a few minutes, a high level develops in the blood. Levels greater than the fatal threshold. They die.

    This was NOT/NOT a study of fatal thresholds. This was a study of overdose levels. Those with 11 ng/ml — would they survive 10 ng/ml? Or even 4 ng/ml? If their threshold was 3 ng/ml, but they had 11 ng/ml postmortem, so what? They started circling the drain at 3 ng/ml, but the level increased before they actually died.
    Not discussed.

    In the context of “was this a fatal threshold for Floyd”, this data is meaningless.
    In the context of what is a fatal threshold, the data is meaningless.

    In any context, the data = mere ‘data points’ with no meaningful context.

    IMHO. Your mileage may vary.

    Regards,
    OldSchool


       
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      henrybowman in reply to OldSchool. | April 9, 2021 at 3:11 pm

      The big point that ought to be stressed is that this isn’t a graph of the fentanyl content of all patients, it is a graph of the fentanyl content of people all of whom died. Every blue pixel in that graph is somebody who died (presumably) of fentanyl. So GF being in the middle (slightly higher than middle, actually) of this big blue expanse doesn’t mean he’s “not so bad,” it means he’s “pretty reliably dead.”


 
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carriemae16 | April 9, 2021 at 12:53 am

Something that stood out to me was that the last state witness, Dr. Smock, testified that he was the “police surgeon” for the Louisville, KY Police Department and often accompanied SWAT teams on assignment/responded to police-involved shootings… which made me think of the Breonna Taylor case from Louisville… in which Benjamin Crump was also the family/civil attorney. Does anyone know if/is it possible Dr. Smock was brought onto the Chauvin case via connections to Crump?


 
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CuriousJustice | April 9, 2021 at 1:13 am

Interesting that Nelson didn’t question Tobin on his opinions of Floyd saying he couldn’t breath and couldn’t “choke” before ever being put on the ground.

So, the State’s expert witness, armed with models (a la climate change), offers testimony to reasonable doubt. What remains is first-hand observation of a suspect who experienced an adverse reaction to ingested drugs, forced by comorbidities, and situational stress, that was already in progress inside the cruiser, before the restraint was applied. With a hostile public surrounding the civil workers, this bears the hallmarks of an Antifa or SomeSelectBlackLM protest that impeded rendering aid in a timely fashion.

I’d like to welcome Ben Shapiro and Ann Coulter to the comments. Pretty clear they are drinking Branca’s brew based on their recent posts.

C’mon— it’s pretty obvious. Though to Shapiro’s credit, he is crediting LI in his videos.

Also when laymen get blinded by bullshit statistics, they will revert back to “trust” and “like” and I assert the prosecution has not been very trustworthy nor honest with the presentation of the case. If Nelson is getting tired, trust me the jurors are also saturated to. So I’m betting the jurors are doing less critical thinking on the graphs and more… I’m sick of these bastards selling me Amway products.


 
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healthguyfsu | April 9, 2021 at 1:41 am

I wonder if this was a trial strategy….trot out weak, low bar witnesses early on, so raising the bar just a little gives the appearance of a big win to the jury.


 
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kevinbrown | April 9, 2021 at 1:48 am

Why was dr Tobin allowed to bring into evidence his homemade animation drawing of where he thought the cops were relative to Floyd .
Only actual videos should be allowed .He stated at one point in a video clip that the cops left foot was off the ground therefore all his weight was on Floyd yet you couldn’t see where the right knee was and possibly most of his weight could have been on his right knee not of Floyd .
The states argument that the knee to the neck cut off the flow of blood to the brain makes zero sense cause basically they are saying Floyd was choked out by the knee but had that been true he would have blacked out after 8 seconds.And wouldn’t that have to be a knee on the front of the neck not the back of the neck more likely neck area base of neck shoulder blade area ?
Dr Tobin said that at Floyd’s age the average blood oxygen level would be 89 % ? I am not a dr but I thought that strange didn’t know it changed with age from what I found on medical sites any level under 90 % in anyone is considered low level oxygen.
The dr also stated that people die of fentanyl when they go into coma and that didn’t happen with Floyd .How does he know that didn’t happen doesn’t a coma look exactly like happened to Floyd ?
I believe the dr was making it up as he went along thought Nelson could have done better questioning him and to take much longer


     
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    healthguyfsu in reply to kevinbrown. | April 9, 2021 at 1:54 am

    It’s a whole lot tougher for Nelson to do that when he gets handed the information last night…..that’s close to misconduct, but in this case, it’s going to be allowed at least once.


       
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      PGiddy in reply to healthguyfsu. | April 9, 2021 at 6:29 am

      In the knee on the neck homemade video by the doctor, he made sure to have the T-shirt collar absurdly low so it showed a skin gap between the knee and the “top” of the shirt. It was completely misleading, but that’s what happens when he’s allowed to create his own pictures.


 
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healthguyfsu | April 9, 2021 at 1:53 am

Also, the testimony from yesterday (stripped of a “3 fold fatal dose of fentanyl”) looks different to a jury member that buys today’s little expert theater.


 
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daniel_ream | April 9, 2021 at 2:27 am

I refuse to believe that we don’t have an LD50 value for fentanyl.

And I cannot credit that a medical doctor was allowed to present a diagnosis in court based on crappy cell phone and body cam video. Isn’t that some kind of ethical violation? Diagnosing a patient you’ve never examined?


     
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    Brave Sir Robbin in reply to daniel_ream. | April 9, 2021 at 11:54 am

    Fentanyl’s LD50 rating for Floyd would be 3 ng/ml, which is the figure being used for lethal dose given his weight. He had 11 ng.ml, or 3.67 times LD 50. I cannot find LD90 or LD100 information, but I would expend LD90 to be around 12 ng/ml, but that is based on some very broad assumptions. In any event, 3.67 times LD50 usually entails a bad outcome for those so exposed.. Floyd likely had about a 90% probability of death without medical intervention that the police officers on scene were unable to provide.


 
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Metacom White | April 9, 2021 at 3:03 am

I am unfamiliar with Minnesota Crim Pro, but it seems there would be good cause for a continuance to allow time to review the report of Dr. Tobin, and make a Daubert or Frye type challenge to its admission. From what I read (and I am crediting you alot) there is no apparent basis in accepted scientific or medical practice to conclude this opinion is based on anything but speculation.


 
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lionbush | April 9, 2021 at 3:19 am

Thought Nelson did a good job with Smock. Certainly his tone on questioning was different. I don’t think he even said ‘hello’ to him. Nelson worked out exactly what he was by the way Smock answered questions to the prosecution with utmost glee.

There were parts of Smocks testimony which contradicted Tobin earlier. The main part was around the pressure applied and that a large surface like the forearm or shin doesn’t cause bruising. Yet the inference from Tobin was that it wasn’t a large surface being applied when he was explaining why the studies done with weights on the back were of no use because all the 91 lbs of Chauvin were through his knee. What needs to be pickled up on here is would 91lbs of force in a knee cause bruising. Smock stated that the knee being used is similar to the bicep and forearm being used in a choke hold. Well, yes in that skin covers the limb it is. However I don’t remember the forearm and bicep forming a sharp angled joint with a rather solid bone structure at the apex. So really it is nothing like it. Also, leg muscles are generally much stronger than arm muscles.

Another one would be around the use of the right hand to breath (Torbin) or push off the tyre (Smock). There was also the difference in opinion on a coma induced by fentanyl which can be picked upon when Nelson presents his case.

The biggest problem with Smock was that he was trying to be selective in presenting evidence and then presenting that evidence with such joyful glee that he came across as disingenuous. It was also readily apparent that his argument was based upon a rather thin premise who on cross examination was struggling to stick to his answers a lot more. If you look at his face closely you can see by his face he knows that he is being dismantled somewhat. He looked rather hostile towards Nelson because he was being made to give answered he didn’t want to give that undermined his ‘conclusion’ of death. the damage wasn’t just to his testimony though, it was to Torbin and his version of events.

Torbin was the one who probably did most ‘damage’ to the defence case in that on cross examination he stuck to his answers and stayed pretty consistent to his message. You could see Nelson struggling, which isn’t unexpected as he has no where near the level of medical knowledge required to argue the case (not that he can in cross anyway). So to me, he did the right thing in backing off and waiting for his own witnesses to make the case for him. Although, like I say when he cross examined Smock he did manage to drag out inconsistencies between the two opinions.

Overall though I think Torbin would be the witness the jury would listen to the most as he was the one who was consistent through out and presented good factual based explanations. Whether those explainations fit the facts of this case, and whether the very large assumptions he made with his calculations (he admitted assuming things but tried to pass of assumptions as fact which was one strange part) are correct, is another question. I’m pretty sure Nelson will have people lined up who can state that they were not.


 
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Milhouse | April 9, 2021 at 3:21 am

Even worse, however, and a point brought up by Nelson on cross-examination, these dead people were not necessarily people who died of fentanyl overdose—they were just people who died, who happened to also test positive for fentanyl.

I don’t understand this point. Surely this helps the prosecution. He’s pointing out that some people with very high levels of fentanyl, much higher than Floyd’s, and who are included in the statistics, actually were doing fine until something else came along and killed them. That means the true mean and median fatal levels are higher than these stats would seem to indicate, not lower, as the defense wants them to be. It makes it less likely that Floyd’s dose was enough to kill him. So why did Nelson raise it?


     
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    lionbush in reply to Milhouse. | April 9, 2021 at 4:09 am

    He was highlighting the lack of context around the deaths using an extreme example of gunshot deaths. Yes what you say could be true. On the flip side though, all of those 19000 people could have died from overdose, including those with much lower levels that Mr Floyd. The point is, those statistics were a little misleading without an actual comparison of cause of death. His aim is to just cast enough doubt on those statistics to make them seem irrelevant to the case as they are not a fair comparison, which I think he did.

    What wasn’t presented was the amount of people who died from overdose with the comparative levels of fentanyl in their system. That would have been a true measure. And even more telling would be date of the levels of fentanyl that can kill people with similar cardiac issues, though I doubt that will be available to that granularity.


     
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    mdv1959 in reply to Milhouse. | April 9, 2021 at 4:36 am

    This confuses me too. If 16mg of fentanyl didn’t kill them and something else did, then that would support the prosecution’s argument. It seems to me the best defense argument is even if they had 16mg of fentanyl in their system it doesn’t mean it took 16mg to kill them, maybe 4mg would have done the trick, there’s no way to know.


       
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      Christopher B in reply to mdv1959. | April 9, 2021 at 7:11 am

      That’s exactly the point Nelson was making, just in a different way. You can’t know from an aggregate count of deaths *by all causes* that any one of those people lived for any significant length of time with 16mg of fentanyl in their system, or precisely under what conditions they were able to survive. The proper comparison to make is of people who are known to have died of a fentanyl overdose, what level of fentanyl did they have, and what other characteristics (age, body composition, other health problems, etc) did they share with Mr. Floyd.

The prosecution has brought forward a few things the defense will have to explain such as the respiratory rate, and why no CPR was done once a pulse was not found.

And the prosecution itself will at some point have to explain why Floyd was complaining he couldn’t breathe long before he was put in the prone position, and IIRC even before he tussled with the cops. That would seem to me to be the key fact when determining the cause of death because whatever distress he was in, it began well before the act the state is claiming was the cause of death. It might be that what the cops did hastened it, or compounded whatever problem he was having, but protestations by at least one of the prosecution witnesses to the contrary, there is no way a healthy Floyd dies from being restrained like that.


 
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Anacleto Mitraglia | April 9, 2021 at 5:17 am

Neurologist here. I have many things to say about yesterday’s experts, but if I should pick one, thet would be Dr,. Tobin’s identification 0f the exact moment of Floyd’s death. Apparently it was when GF “kicked the bucket”, like in the Western movies’ cliché. Anyone with a medical degree knows that’s impossible to state the exact moment of death, unless it is from an explosion that instantly disintegrates the body, because in fact it’s a sequence of different events over time – this is, for instance, a problem of some importance in transplant surgery, also from a legal point of view. So, if I had only one cross-question to ask, that would be: “What do you mean by death, exactly?”.


     
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    Astrov in reply to Anacleto Mitraglia. | April 9, 2021 at 5:45 am

    I wasn’t sure which hospital visit Smock was referencing. May 2019 or March 2020? If it was 2019 would that not make that whole video admissible as the events that led to “not dying” were so different to the “dying” episode? The fighting, claims of claustrophobia.


     
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    bigskydoc in reply to Anacleto Mitraglia. | April 9, 2021 at 8:14 am

    When he said that, my eyes crossed, and I died a little inside. Perhaps we can now put him on trial for my death. Truly a facepalm moment.


 
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PGiddy | April 9, 2021 at 6:18 am

Police called EMS immediately and even upgraded the call to “Code 3”. How were they to know it would take EMS so long to respond?


 
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lurker9876 | April 9, 2021 at 6:38 am

The resuscitation won’t last long once the case is handed over to Nelson.

Will today be a full day and will the prosecution team trot out more of their fake medical experts to talk more about the climate change?


 
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SteChatte | April 9, 2021 at 7:11 am

Thinking as a jury member might, though, all this b.s. testimony that ignores comorbidities just sounds like desperation, like implicit conscession that the prosecution has no real case. I would feel my intelligence had just been insulted, and it would prejudice me against the prosecution. But then again, I’m not one of the 95% of be-masked American Sheeple who’ve been conditioned by The Joe Goebbels Media for the last year to believe a whole mess of b.s., including that Derek Chauvin murdered murdered murdered Holy Sacred Saint George Floyd!


     
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    PGiddy in reply to SteChatte. | April 9, 2021 at 7:23 am

    Yes, we are to believe that serious health problems (95% occlusion!) and use of hard, lethal drugs contributed to the death in no way.

    They think we’re naive.


     
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    amwick in reply to SteChatte. | April 9, 2021 at 7:49 am

    95%… Really? I think the number is changing… It may have been that way back when..but now? I looked up polls,, and the number is going down, not that I believe any of them specifically..


       
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      PGiddy in reply to amwick. | April 9, 2021 at 8:00 am

      Sorry, 90%. I think Nelson said 95%. From autopsy:

      “25% proximal narrowing of the circumflex coronary artery; and 90% proximal narrowing of the right coronary artery.”

Could pulmonary edema, as identified in the autopsy report, contribute to GF’s complaints about respiratory distress, which began well ahead of the final placement of GF in prone position?


 
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steve_gosney | April 9, 2021 at 7:53 am

Was Smock qualified as an expert pre-trial? From what you are describing, his expertise seems very suspect.
The late disclosure stuff is dirty pool and happens way to often in a criminal case. What is a defense lawyer to do when the case is going well up to now? Ask for a mistrial and allow the State to get its act together for trial 2? No good remedy unless the judge would have the guts to exclude the late disclosed stuff.


 
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TargaGTS | April 9, 2021 at 7:56 am

One of the state’s ‘medical experts’ testified yesterday that smoking really isn’t bad for your lungs and arteriosclerosis doesn’t affect blood flow. Really. He said that.


 
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Ray Meiers | April 9, 2021 at 8:01 am

The defense expert witness should not have a hard time destroying Tobin’s points that (1) he could discern precisely what was happening within Floyd’s body despite there being no physical manifestation of those processes either while Floyd was alive or upon medical examination after Floyd had died (he can tell from a video conditions that are not physically manifested?), (2) he could discern the exact moment that Floyd died by the expression on Floyd’s face (science!), and (3) from the video he could have measured Floyd’s rate of respiration as normal (I wish Nelson had made Tobin go through, step-by-step, measurement of the rate of respiration at any point in the video). What a pompous a**! The redirect of Tobin reminded me of My Cousin Vinny.


 
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Fat_Freddys_Cat | April 9, 2021 at 8:06 am

Not being an attorney I can’t speak from experience, but I have a suspicion that the State wins a lot of its cases this way: using its superior resources to grind down the defendant and defense attorneys physically, emotionally, and financially.


     
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    lurker9876 in reply to Fat_Freddys_Cat. | April 9, 2021 at 8:49 am

    This may be one of the weaknesses that the founders saw and needed to be addressed. Just because they believed in speedy and fair trials doesn’t mean the country handled speedy and fair trials. The US Congress with the right Constitutionalists should consider a new amendment or something to address this weakness.


 
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bigskydoc | April 9, 2021 at 8:24 am

The most damming thing to come out of the prosecution, so far, is the DUI data. It is fairly elementary to look at any kind of death data, and make the argument that Floyd fits into the category of possible fentanyl overdose death.

It is much harder to argue that Floyd died of a fentanyl overdose, when you have data showing that his fentanyl level is in the middle of the pack of individuals who did not die from fentanyl overdose.

Obviously, the defense does not have to prove that fentanyl killed him, only that there is a reasonable question of whether it might have.

This survival data is exactly what I’ve been looking for the prosecution to bring up, and if they are smart, they will bring up a lot more of it.


     
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    lurker9876 in reply to bigskydoc. | April 9, 2021 at 8:58 am

    This case is turning into a debate of whether he died from what, how, where, and why. The state asked something like:

    Did he die from fentanyl OD?

    No.

    Did he die from nicotine?

    No.

    Did he die from meth?

    No.

    Did he die from combined fentanyl and meth?

    No.

    Did he die from pulmonary edema?

    No.

    Did he die from Chauvin’s knee?

    No.

    So exactly how did he die? No one knows. And can the state actually prove anything?


     
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    TargaGTS in reply to bigskydoc. | April 9, 2021 at 9:34 am

    Did you happen to come across this study from Oxford Press? The ng/ML numbers cited here are lower than what the witness testified to yesterday. I thought it was additionally interesting that in more than half of the 20-cases they studied specifically, the driver was found at the scene unresponsive. And these are the cases where the driver’s lived.

    https://academic.oup.com/jat/advance-article/doi/10.1093/jat/bkaa105/5892744

    In any event, in a bit of coincidence, there was a study conducted in Hennepin county from 2005-2007 that examined fatal fentanyl overdoses. That information is below…

    https://www.researchgate.net/publication/6283792_Fentanyl_Concentrations_in_23_Postmortem_Cases_from_the_Hennepin_County_Medical_Examiners_Office


       
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      Brave Sir Robbin in reply to TargaGTS. | April 9, 2021 at 12:36 pm

      Nice find. From the abstract:

      “The mean (standard deviation) fentanyl concentration for these cases was 5.2 ± 3.8 ng/mL with a median of 3.7 ng/mL, and the concentrations ranged from 2.0 to 16 ng/mL. Naloxone administration was documented in exactly half of these cases similar to another study involving carfentanil-impaired driving. ”

      Translated – half of the incidents presented a fentanyl concentration below 3.7 ng/ml, or around LD50 and less. The skew means the less than LD50 concentrations declines rapidly. Naloxone was administered to half the incidents. Half the incidents being over LD50, this makes sense. I would imagine that, in general, Naloxone was given to the persons found unresponsive, saving their lives, and those who were responsive were monitored.


     
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    Midfiaudiophile in reply to bigskydoc. | April 9, 2021 at 11:37 am

    One thing that nobody has talked about as yet is that Mr. Floyd’s blood already contained some Naloxone by virtue of the suboxone pills (combination of buprenorphine and naloxone) he had eaten at some point or other, per Isenschmid and the presence of the packet in the Mercedes.

    Apparently the state was uninterested in doing a confirmation step on the presence of the drug or establishing a blood concentration of it, but it would be fair to say that any presence of naloxone would block some of the receptors for fentanyl and reduce (to unknown degree) the effects of the fentanyl. I think that would have been an interesting angle for state to explore, but again at this point we’re basically only discussing applying doubt to defense’s theory of the case rather than proving one of State’s own, which isn’t a winning strategy.


     
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    henrybowman in reply to bigskydoc. | April 9, 2021 at 3:23 pm

    “It is much harder to argue that Floyd died of a fentanyl overdose, when you have data showing that his fentanyl level is in the middle of the pack of individuals who did not die from fentanyl overdose.”

    There must be some involuntary psychological process similar to optical illusions involved in seeing and understanding this graph. The graph shows that Floyd was in the middle of the pack of individuals who DID die from fentanyl overdose (presumed).

Lack of oxygen was the cause of death. Well, that’s stating the obvious


 
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REDACTED | April 9, 2021 at 8:34 am

this will be a long trial and there will be expert testimony to refute Dr Craiceáilte.


 
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REDACTED | April 9, 2021 at 8:40 am

the reason the state likes Dr Kook is he thinks just like they do

Nothing that GF did and I mean NOTHING , contributed to his death

they would contend that GF would have lived to be 100 when in truth he was committing a slow suicide for most of his life


     
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    lurker9876 in reply to REDACTED. | April 9, 2021 at 9:03 am

    And they cannot even prove medically and scientifically that Chauvin contributed to his death. All they got are suppositions, assumptions, opinions, et al.

I came away from today’s recap with the impression that today the State was not prosecuting Chauvin so much as they were defending Floyd. Nelson has tarnished the halo that was awarded to Floyd, and that simply cannot be allowed.

Reading this with interest since Holt on CBS, I think, did a hit piece that had the officer dead to rights guilty on the evening news last night.

You hit on all of the thoughts I had and the lame stream media presented no cross-examination points, of course. They absolutely won’t be covering the defense case with the same interest.

I found it interesting that there was saliva covered fentenyl fragments in the squad car. You mentioned the possibility that he “took” a second pill. I’m wondering if he wasn’t hiding it under his tongue all along so that they wouldn’t find it upon searching his pockets?

I really don’t think that a smallish guy like Officer Chauvin would worry about being too heavy on a monster like Floyd. Floyd’s chest cavity had to be huge. He would be hard to revive with CPR given the force necessary to compress his chest. No basis for an expert opinion, but I think the drugs slowed his lungs, heart and other organs and with the restraints on top, they just stopped.

Going back to the second pill in the car, I bet a timeline of the effects might show that the, one minute he’s talking, ten seconds later he’s gone might have something to do with the second round. The officers could not have known about the second round of symptoms onset and just thought he had given up the fight.

Last point, didn’t he complain about not being able to breath on several occasions before being restrained on the ground? This would be a boy cries wolf scenario.


     
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    henrybowman in reply to DanJ1. | April 9, 2021 at 3:26 pm

    “None of that, of course, was available to officers on scene as they fought an intoxicated 6’ 6” 230-pound Floyd as he violently resisted lawful arrest”

    “I really don’t think that a smallish guy like Officer Chauvin would worry about being too heavy on a monster like Floyd.”

    On another website, someone suggested that it would be a valuable “dirty trick” for Nelson to hire a 6’6″, 230 lb. paralegal to sit at the table on the other side of Chauvin, just for the recurring visual.


 
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West Texas Intermediate Crude | April 9, 2021 at 10:38 am

Re Dr Tobin’s “free” testimony-
He has a thriving $500/hr practice providing rented testimony for attorneys in medical malpractice cases. Does anybody think that this publicity will be bad for his business?

I will note that Defense Counsel Eric Nelson definitely appeared tired today, he was hoarse, and clearing his throat. Could he be wearing down?
/said in the voice of a bored, cynical kindergartner/ “It could be covid.”


 
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PGiddy | April 9, 2021 at 10:46 am

I think whatever this lady, forensic pathologist, who is testifying right now says may just make or break the case for Chauvin. She is instantly likable, extremely qualified, and appears very smart. I’m assuming she’s going to support the prosecution as a prosecution witness. Chauvin could be in trouble. We’ll see!


 
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Insufficiently Sensitive | April 9, 2021 at 11:02 am

The turnaround on that perception really ought not be expected until the defense has their turn at bat, gets to present their own witnesses, to frame the issues the way they want them framed, ask the scope of questions the way them want them scoped—and the state finds itself bound by all the constraints that so far have limited only the defense.

The Seattle Times has erupted in joy at Dr. Tobin’s testimony – it’s headlined as if it were a conviction. Never let it be said that the Times editors are well-versed on the presumption of innocence until PROVED guilty.


 
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CommoChief | April 9, 2021 at 11:19 am

Guys don’t get all out of sorts. The prosecution got their ass kicked because their witnesses were either horrible in presentation, inexperienced in testimony, or simply due to bad facts for 8 days.

They finally got a witness with some experience coupled with his exhibits/reports delivered the night prior to defense. Meh.

Defense is pretty constrained on the manner and subjects they can use in a cross. Nelson will have an opportunity to rebut all this with a friendly defense expert. Even so, not any huge damage done by the prosecution.

Did anyone truly expect a prosecution witnesses to say anything other than this; Floyd died due to actions of LEO and ignore other competing factors?


     
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    Midfiaudiophile in reply to CommoChief. | April 9, 2021 at 12:15 pm

    The problem is that the defense expert witness didn’t merely ignore competing factors, but rather openly denied them even being possibilities, under the weight of their expertise.

    The late presentation of materials to defense counsel is a major contributing factor to their effectiveness in doing so, I won’t deny, and Tobin’s testimony could have been examined quite successfully insofar as he was overplaying his hand and seemed to be suggesting that any use of prone restraint past a certain amount of time was certain to lead to death, hurting the state’s case that “yeah, we do prone restraint but Chauvin did something uniquely awful”…

    But: “He had fentanyl in his blood” “Irrelevant” “He had heart disease” “Irrelevant” “He had meth” “Irrelevant” “He had covid recently” “Irrelevant. The only thing relevant was Chauvin”

    It profoundly fails to satisfy the sniff test for us, but who knows what jurors are going to think when presented with the author of hundreds of articles in the three top medical journals (Lancet, NEJM, JAMA), winner of countless awards for work relevant to the issues at hand in the case, and doctor with half a century of experience in a relevant field. I would probably be inclined to question my sniff test, since I would be expecting prosecution to couch their testimony in a particular way, but not completely deny the possibility of any other theory if doing so was not entirely defensible.


 
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Undun | April 9, 2021 at 1:59 pm

Outstanding analysis/summary- thank you!


 
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Libertas_7_4_1776 | April 9, 2021 at 5:19 pm

As a mental health provider I have been told in workshops that opiates have the unique quality of not developing physiological tolerance even as psychological tolerance builds (addiction) . In other words as your mind acclimates to excessive drug use, your body does not and you remain just as susceptible to overdose.


 
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gibbie | April 9, 2021 at 5:39 pm

I hope Nelson is reading Andrew’s commentary.

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