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36 minutes ago, MisterSwig said:

he tries to wriggle out of the trap and says it depends on the case.

I think you are wildly exaggerating. The exchange was unremarkable. It's pretty normal not to answer yes or no to yes or no questions. "It depends" means "sometimes, yes". The wording just reflects how doctors typically think, and how a scientist thinks, where they want to emphasize context even when nobody asked. Nothing sinister or fishy. 

 

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This trial was televised. I watched every second of it. I have a better claim than the jury. One, the jury had to remember testimony, they weren't given transcripts, whereas I could watch the testimon

The trial started on Monday. Jerry Blackwell presented opening remarks for the prosecution's case. He argued that Derek Chauvin violated the police oath by using "excessive and unreasonable force" on

It should prove interesting to contrast Dr. Andrew Baker's eyewitness testimony of the cause of death with Dr. Michael Baden's and Dr. Alecia Wilson's later eyewitness testimony of the same. Dr.

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Posted (edited)

Week two ended with the pathologists. First up was Dr. Lindsey Thomas, the now retired, former medical examiner for Hennepin County, Minnesota. She is a friend of Dr. Andrew Baker, the current medical examiner who conducted the autopsy of George Floyd.

Mr. Blackwell questioned Thomas for the prosecution team. He asked what the "mechanism of death" was in this case, and she replied "asphyxia or low oxygen." He then asked about parts of Floyd's death certificate that Baker had completed. She said that "cardiopulmonary arrest" simply means that the heart and lungs stopped; "complicating law enforcement subdual, restraint and neck compression" means "the activities of officers resulted in Mr. Floyd's death"; and the phrase "other contributing conditions" refers to things present but "not directly contributing to cause of death."

Blackwell distributed packets of autopsy photos, but they weren't broadcasted over the live video feed. Thomas described them as images of Floyd's injuries to his face, shoulder and hands, which were consistent with video of him turning on the pavement and struggling with the handcuffs.

Thomas raised the concept of "physiological stress" which is something like the "fear for life" one might experience in near-death encounters. She said Floyd was experiencing that level of stress for several minutes. While the "primary mechanism" for death was asphyxia, she stated, the "secondary mechanism" was physiological stress caused by the police restraint. However, physiological stress cannot be seen on autopsy.

Mr. Nelson opened cross-examination by pointing out that Thomas hadn't reviewed all the witness interviews, nor had she seen relevant materials that were added to the case after preparing her report.

Nelson asked her to define, medically speaking, the term "complicating." She answered, "I guess it could be used in lots of different ways. The way I would think of it in this setting is both things were present. That there was a cardiopulmonary arrest and it was due to law enforcement subdual, restraint and compression." Nelson asked if she had been provided with Dr. Baker's opinion, and she hadn't. She acknowledged that she might have a different interpretation of the word than Dr. Baker.

The prosecution has been addressing studies that purport to show that the prone position is safe and not inherently dangerous. On redirect Mr. Blackwell mentioned a Canadian study that did not find a single death in cases where police put people in the prone position. Thomas admitted that she did not know how to interpret this study because pathologists in America do see these cases.

On recross Thomas agreed with Nelson that a body can continue breathing for a minute or two after the heart stops. A strange point, perhaps Nelson will develop it later, or maybe I'm missing something.

Finally Dr. Andrew Baker took the stand. A former president of the National Association of Medical Examiners, he is Hennepin County's chief medical examiner who performed the autopsy on George Floyd. He purposefully did not watch the viral video before the autopsy, because he did not want to bias his exam of Floyd.

Looking at the autopsy photos, Baker indicated no injuries to Floyd's back, several scrapes to his face and shoulder, marks on his hands from the handcuffs, and trauma to his knuckles.

Baker said that there was no damage to the heart muscle, but there were lesions in the coronary arteries, specifically two 75% blockages in the left side and one 90% in the right. No clots were found. Baker noted that if someone dies "very quickly from an acute coronary event" there would be no evidence of that in the heart. The heart muscle wouldn't look abnormal because it requires an extended cardiac event over hours before damage can be detected.

Baker found no evidence of "acute injury to the brain," no evidence of it "being deprived of blood or oxygen." I expected Blackwell to ask a follow-up here, but he quickly moved on to the lungs.

Baker said the lungs were "quite edematous," meaning they were congested, which could have been a result of IV fluid seeping into the lungs from the blood vessels.

Baker noted that Floyd's stomach contained "450 ml of dark-brown fluid with innumerable soft fragments of gray-white food particulate matter resembling bread." He did not see pill fragments. He did not request that the contents be tested.

Floyd had tested positive for covid several weeks before the incident, but Baker did not notice signs of it at the autopsy.

Baker identified the manner of death as "homicide," a word which he uses medically, not legally. It means "when actions of other people were involved in an individual's death."

Regarding the cause of death, Baker said it was "cardiopulmonary arrest," which is "fancy medical lingo for the heart and lungs stopped." Blackwell asked if "complicating" means "occurring in the setting of" and Baker answered yes. Blackwell then asked, "How did subdual, restraint and compression cause Mr. Floyd's death?" And here I quote Baker's response at length:

"In my opinion the physiology of what was going on with Mr. Floyd ... he had very severe underlying heart disease ... also had hypertensive heart disease, his heart weighed more than it should, so he has a heart that already needs more oxygen than a normal heart and is limited in ability to step up to provide more oxygen when there's demand because of the narrowing in his coronary arteries ... In my opinion the law enforcement subdual, restraint and the neck compression was just more than Mr. Floyd could take by virtue of those heart conditions."

Blackwell then asked Baker why he didn't name fentanyl and meth as the cause of death. Baker explained that "cause is the most important thing that precipitated death ... Things that played a role in the death but didn't directly cause the death" are relegated to the "other significant conditions" section. "Mr. Floyd's use of fentanyl ... did not cause the subdual or neck restraint."

Nelson began cross by asking, "How do you define the word 'complicating' as you used it?" Baker explained that he used it like "complications." He said, "It means that an intervention occurred and there was an outcome that was untoward on the heels of that intervention." He compared what happened to someone starting a new medication for a heart condition and then having an allergic reaction.

Baker testified that when he puts other significant conditions on a death certificate it means he thinks they contributed to the death, they played some role. "You don't list trivial stuff that didn't play a role," he stressed. He agreed with Nelson that Floyd's heart disease, history of hypertension and the drugs in his system all played a role in his death.

Even though Baker avoided watching the viral video before conducting the autopsy, he did watch it immediately after the autopsy, and considered it for the death investigation.

Nelson used Baker to reiterate several points for the defense: a 75% coronary blockage is capable of causing death; the prone position is not inherently dangerous; the pressure to the back of the neck doesn't explain asphyxiation; drug combinations can be relevant; and people overdose from fentanyl levels similar to Floyd's.

Baker described Floyd's death as "a multi-factorial process."

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Week three started with Mr. Blackwell calling Dr. Jonathan Rich, a cardiologist in Chicago and professor of medicine at Northwestern University. This was his first time testifying in court as an expert witness. His conclusion is that Floyd "died from cardiopulmonary arrest. It was caused by low oxygen levels, and those low oxygen levels were induced by the prone restraint and positional asphyxiation that he was subjected to."

Rich looked at Floyd's medical records, various videos, and the autopsy. He said that he saw no evidence of negative heart conditions (high blood pressure is not a heart condition), no video evidence of a heart attack (Floyd died a "gradual death," not a sudden one), and the autopsy, he said, revealed that Floyd had a "mildly thick, enlarged heart," which is normal for someone with high blood pressure. Based on the autopsy, Rich said the endocardium (the heart's inner lining) looked healthy. Floyd had coronary artery disease, but Rich excluded that as a cause of death. He noted that Floyd had no signs of clotting or ischemia (inadequate blood supply).

On cross, Mr. Nelson pointed out that Rich is not a pathologist, and all of his patients are alive when he sees them. Rich agreed that heart attacks are different from heart failures; some people die "from coronary events with 90% blockages or without blockages"; fatal arrhythmias often are not associated with pain; longterm use of meth can constrict blood vessels and contribute to the development of coronary heart disease; and vigorous activity and increases in adrenaline can make the heart work harder.

Floyd had a paraganglioma in his pelvis. Rich agreed that such growths can contribute to high blood pressure. Floyd had a history of "extremely elevated blood pressure."

Nelson then asked (what I think is) a simple question to answer, but Rich, in my view, displayed clear bias in not giving a straightforward answer. I quote the full exchange below, so you can judge for yourself.

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Nelson: If Mr. Floyd had simply gotten in the back seat of the squad car, do you think that he would have survived?

Rich: So, had he not been restrained in the way in which he was, I think he would have survived that day. I think he would have gone home or wherever he was going to go had he not been subjected to the prone and positional restraint that he was.

Nelson: So, in other words, if he had gotten in the squad car, he'd be alive.

Rich: Um, I think my answer remains the same. Anything other than that scenario he was subjected to, I have no reason to think from a medical perspective that he would not have survived that day, correct.

 

The court took a lunch break and returned with some rulings on motions pertaining to Morries Hall, one of Floyd's friends in the car. Judge Cahill denied the defense motion to compel the state to explain why they are not offering Hall use immunity in exchange for his testimony. And regarding statements Hall gave previously to authorities, Cahill ruled that none of them are admissible.

The jury was reseated and Mr. Schleicher called Prof. Seth Stoughton from the University of South Carolina. Stoughton teaches criminology and criminal justice in the law school. He's also a former Florida police officer. He wrote a hundred-page report on the Floyd case and had a lot to say, much of which repeated points from others, so I'll focus on the points that really stood out for me.

Stoughton talked a lot about the nature of a threat, and whether Floyd presented a threat to the officers or anyone else. He noted that Floyd's size and drug use were not themselves threats. And he said that once officers had Floyd on the ground, Floyd was "cooperative" and posed no threat at this point to anyone; nor did he have the opportunity, ability or intention of running away or "obstructing the investigation." At one point an officer suggested rolling Floyd on his side. This, Stoughton argued, indicates that Floyd didn't present the level of threat that required keeping him in the prone position.

The professor raised the concept of "foreseeable effects." This refers to things that are likely to happen as a result of the officer's actions. For example, a reasonable officer should expect a subject placed in the prone position to have trouble breathing.

Stoughton discussed how to apply the "reasonable officer" standard to this particular case. He watched video clips of the incident and described what a reasonable officer would have known and done. A reasonable officer, he said, would have known the dangers of putting an intoxicated person in the prone position, and would have noticed Floyd's voice getting "slower and thicker," indicating increased medical distress. Also, a reasonable officer would have noticed Floyd had passed out and would have started medical assistance. He concluded that "no reasonable officer would have believed that that was appropriate, acceptable or reasonable use of force."

Mr. Nelson began the cross-examination by pointing out that, according to the Graham vs. Connors standard, analysis of the use of force must be viewed from the totality of the circumstances. It shouldn't be viewed from 20/20 hindsight. He pointed out that a dispatcher had dispatched Chauvin and Thao "code 3" (lights and sirens) to the scene. Stoughton was unaware of this and had focused only on the initial officers' "code 4" (scene safe) call.

Stoughton had argued that it was unreasonable to put Floyd in the prone position in the first place. Nelson asked if reasonable minds could disagree on that point, and the professor said no. Nelson then pointed out that that disagreed with prior testimony from Sgt. Stiger.

Nelson asked if there was any situation where a subject should be kept in the prone position for longer than a transitory period, i.e., while handcuffing someone. Stoughton answered, "There shouldn't be." Nelson then quoted from an op-ed the professor wrote shortly after the incident in May 2020. It read: "Officers might need to hold someone down in the prone position but they should do so by putting their shin across the subject's back, not the neck." Nelson added that Stoughton, only a few days after the incident, "had already formed the opinion based on that limited information that this was an unreasonable use of force."

Stoughton said that how long the knee was on the neck was "irrelevant." He admitted that he couldn't determine how much pressure was on the neck with any specificity.

Nelson pointed out that a reasonable officer also considers size difference and EMS response time. He reminded Stoughton that EMS was called contemporaneously with discussion of using the hobble device. Also the EMS call was upgraded in response to observations of Floyd.

Nelson asked about Floyd kicking his leg right after being taken to the ground and officers trying to control him. Stoughton said it appeared that an officer grabbed the leg and pulled it straight. They agreed that a reasonable officer must consider changing circumstances, and Nelson said that these officers might have considered the fact that they had been struggling with Floyd for several minutes. They might have been tired themselves. Also, a reasonable officer might have been distracted by people gathering around and the traffic.

Stoughton agreed that when the officers said Floyd was passed out, they also said he was still breathing.

On redirect Stoughton agreed that a reasonable officer would know whether he's kneeling on a limp person, and would pay attention when told the subject has no pulse.

That concluded the eleventh day of the trial.

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The state rested its case, and day twelve marked the beginning of the case for the defense. Mr. Nelson's first witness was Scott Creighton, a retired MPD officer. In 2019 Creighton stopped a vehicle in which George Floyd was the passenger. Creighton testified that Floyd was unresponsive and noncompliant. He had to reach into the vehicle and place Floyd's hands on the dash before taking him from the car and handcuffing him. The defense published Creighton's bodycam footage, which showed Floyd having trouble obeying commands to keep his hands visible. At one point Creighton's partner shouts, "Open your mouth. Spit out what you got. I'm gonna tase you."

It was a short clip. Judge Cahill allowed it only as evidence for the effects of opioids.

On cross Ms. Eldridge pointed out that Creighton had drawn his gun. Floyd said something about not wanting to be shot, and Creighton assured him he wasn't going to shoot. Eldridge also noted that Floyd was talking and could walk. Creighton described Floyd as incoherent.

Next up was Michelle Moseng, a retired paramedic who treated Floyd that same day in 2019. She described Floyd as being upset and confused. He told her that he had been taking multiple opioids "every twenty minutes" and that he had taken another one when the officers arrived. His blood pressure was 216/116, which concerned Moseng enough to take Floyd to the hospital.

On cross-examination Moseng stated that Floyd initially denied having medical issues but then admitted to having hypertension for which he hadn't been taking his medication. Asked why he took so many Percocets, Floyd said he was addicted. Apart from his blood pressure, his heart rhythm and respiration were normal.

Nelson then called Shawanda Hill, the woman in the backseat of Floyd's car on May 25, 2020. She said that she met Floyd that day at Cup Foods (they knew each other) and he offered to give her a ride home. However, Floyd began falling asleep in the car, and she and Morries Hall couldn't wake him up. Eventually the police arrived and that aroused him.

Mr. Frank cross-examined Hill. She also described Floyd as incoherent at times. He would wake up then nod off again. He did not complain about shortness of breath or chest pains to her.

Peter Chang was called to the stand. He's the park police officer who responded to the dispatch for backup. He watched Floyd's car and the two passengers during the whole incident. He testified that the crowd was "very aggressive" toward the officers. He could hear them from across the street.

The defense published Chang's bodycam video, which showed him questioning the passengers and telling them to stay away from the car. Chang also paced around a bit, monitoring both the scene across the street and Floyd's car and passengers. He testified that onlookers gathered in the parking lot of the Speedway store as well as at the corners of the busy intersection.

On cross Mr. Frank noted that Chang and the other officers never radioed "code 3" for help. 

Nelson recalled Nicole Mackenzie, who had testified for the prosecution on day seven. She is the MPD medical support coordinator. She testified about the training that police cadets receive concerning excited delirium. Officer Lane, one of the newer officers, had received this training at the academy, but it was not given to in-service veterans like Chauvin.

Mackenzie described excited delirium as "issues happening at the same time," such as "psychosis, agitated delirium, pressurized speech, incoherent speech, superhuman strength, and hyperthermia." Possible causes include combinations of pre-existing factors, cardiovascular disease, illicit drug use, and mental health diagnoses. Officers are taught an acronym to help them remember the signs of excited delirium: NOTACRIME. "N" is for naked, removing clothes because the subject is warm. "O" is for objects that the subject acts violently toward. "T" is for tough, as in super strength. "A" is for acute, since subjects "just snap" and rapidly change behavior. "C" is for confused, "R" for resistant, "I" for incoherent, "M" for mental health, and "E" is for EMS, as in request medical assistance promptly.

Mackenzie said that cadets are trained to have EMS stage near the scene until the situation is under control, and they should control the subject through physical restraint. Once in handcuffs, the subject should be placed in the recovery position to facilitate breathing. People experiencing excited delirium can rapidly go in to cardiac arrest.

Nelson then called Barry Brodd, a use of force expert with 35 years of experience teaching defensive tactics at a regional training center in California, and also 29 years in law enforcement. His opinion is that "Derek Chauvin was justified and acting with objective reasonableness, following Minneapolis Police Department policy and current standards of law enforcement in his interactions with Mr. Floyd."

At some length, Brodd discussed the Graham vs Connor factors and his own methodology for analyzing Chauvin's use of force. I found it all very interesting but not important to summarize in detail here.

The thing that distinguished Brodd from the other experts was his conclusion that the prone restraint, after the officers put Floyd on the ground, "was not a use of deadly force." He analogized it to officers responding to a domestic abuse call where the suspect is still at the scene. The suspect then fights with the officers, they tase him, he falls and hits his head and dies. This would be an incident of accidental death.

Brodd introduced the concept of "one upmanship," saying that the police don't have to fight fair. They don't have to get into a fistfight with a suspect, but they should de-escalate once they gain control of him.

Brodd argued that a reasonable officer needs to consider the impact of drugs on a suspect. Because intoxicated people can act erratically and might not feel pain, he trains officers to keep drug-influenced subjects handcuffed.

Brodd said that Floyd's "active resistance" to going in the car justified a higher use of force which the officers decided against. Instead they put him on the ground, where Floyd kicked at Officer Lane, continuing to resist. Brodd said officers are trained to place an actively resisting suspect on the ground in the prone position. This limits the suspect's mobility and makes him easier to control. Brodd described this tactic as "prone control" and doesn't consider it a use of force, because it's only using body weight to hold a suspect.

Brodd added that there are also safety reasons for keeping a drug-influenced suspect in the prone position. The impaired suspect might start running and trip and fall, or if he gets sick, the prone position would prevent him from aspirating on his own vomit.

Regarding positional asphyxia, Brodd said the training model indicates it is a greater risk for obese people. He also made a point about the angry crowd, saying that a reasonable officer has to deal with the biggest threat. He noted that Chauvin's attention turned from Floyd to the crowd when he removed his spray canister and said "stay back."

Mr. Schleicher on cross noted that putting someone in the side recovery position is very easy. This remains a good point for the prosecution: why didn't Chauvin want to put Floyd in the recovery position after it was suggested?

Brodd acknowledged that a person's own body weight could contribute to positional asphyxia.

He also agreed that using force on one person cannot be justified by appealing to what others are doing, i.e. Chauvin's restraint on Floyd isn't justified by what the crowd was doing.

Schleicher pointed out that "one upmanship" is not in the MPD use of force policy.

He got Brodd to agree that Chauvin's knee on Floyd "could" be a use of force. They reviewed some clips of the incident, but disagreed about how much pressure was being applied to Floyd while on the ground.

Brodd seemingly associated the use of force with inflicting pain, and Schleicher played video of Floyd saying "everything hurts," specifically his "stomach" and "neck."

On redirect Nelson pointed out that Floyd was able to move his head around.

Brodd mentioned the "swarm technique" which officers use to take a suspect to the ground and control him with their body weight. Brodd said that Floyd's kicking motion was "active aggression."

Brodd had mentioned something about street traffic in connection with not having space for the side recovery position. On recross Schleicher asked if he was contending that it was reasonable to hold Floyd in the prone position to avoid being hit by a car. Brodd answered that he was not suggesting that.

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On day thirteen Mr. Nelson presented his motion for a judgment of acquittal. He argued that the state had introduced reasonable doubt with contradicting expert opinions on the use of force and cause of death. Judge Cahill denied the motion, applying the standard of viewing evidence in "a light most favorable to the state."

Also Morries Hall appeared in court and stated his intention to plead the fifth. Cahill ultimately quashed Hall's subpoena, agreeing that his testimony would be self-incriminating.

The jury then took their seats and Nelson called Dr. David Fowler to the stand. Fowler is a retired pathologist. He started his career in South Africa but moved to the United States in the '90s and became the chief medical examiner for Maryland. His opinion is that Floyd "had a sudden cardiac arrhythmia due to his arteriosclerotic and hypertensive heart disease ... during his restraint and subdual by police."

Regarding the manner of death, Fowler said that "not every case cleanly fits into one particular category or meets criteria for the guidelines." This is why "undetermined" is an option for classifying the manner of death. The death certificate is used for data gathering by the CDC; it's not intended as a legal ruling.

Fowler pointed to Floyd's hypertension, which causes the heart to enlarge and to require more oxygenated blood in order to function. Also, smoking can cause narrowing of the coronary arteries. Floyd's heart disease included proximal narrowing close to the aorta. Thus, supplying blood to the rest of his heart was more difficult than if it had been a distal narrowing further away from the aorta.

Fowler said that meth, being a stimulant, sensitizes the heart to arrhythmias. It increases the heart rate and causes the blood vessels to narrow.

Fowler used an example of a car accident. Sometimes pathologists see dead bodies with lots of injuries from a car accident. The injuries are bad enough to cause death. But then it's discovered that the person had a stroke and lost control of the car. So does the pathologist put heart attack under cause of death or under other significant conditions?

When the paramedic checked Floyd's blood pressure during the 2019 incident, it was 216/116. Fowler described this as his hypertension being out of control.

Fowler then discussed the possibility that carbon monoxide played a role in Floyd's death. He noted that Floyd's face was near the police car's tailpipes, and the car appeared to be running, given the dripping condensation. Nelson asked if Fowler was suggesting that Floyd died from carbon monoxide poisoning, to which Fowler answered no. But it might have contributed to a diminished oxygen-carrying capacity in Floyd's blood, since carbon monoxide attaches to hemoglobin, thus preventing oxygen from attaching to the molecule. After some discussion about the science of cars emitting carbon monoxide, Nelson pointed out that the state did no experiments to determine whether carbon monoxide was a factor in this case.

Fowler further stated that Floyd's heart disease made him particularly susceptible to carbon monoxide.

Regarding the prosecution's theory of positional asphyxia, Fowler called it "an interesting hypothesis unsupported by any experimental data." He said Chauvin's knee placement did not affect vital structures of the neck. Also, the amount of force applied was less than the amount required to bruise Floyd (since there was no bruising).

Nelson asked about symptoms of hypoxia, and Fowler mentioned disorientation, confusion, visual changes, seeing spots, and incoherence. Floyd, he said, didn't complain of visual changes and was coherent until suddenly ceasing movement. Normally hypoxic changes are gradual, from acting disoriented to becoming incoherent.

On the hypopharynx, Fowler said that he searched the literature for evidence that compression of the hypopharynx can cause asphyxia, and nothing came up.

Fowler argued that Floyd suffered a sudden cardiac event, going from fully conscious to silent in a rapid time period. Floyd's heart, he said, exhausted its supply of metabolic reserves. He suffered an arrhythmia and his heart stopped pumping.

After some talk about fentanyl's depressive affect on breathing, Nelson then showed a still image of Floyd being taken out of his car. Fowler noted that a "white object" could be seen in the back of Floyd's mouth.

Mr. Blackwell began cross-examination by pointing out that Fowler hadn't considered the weight of Chauvin's equipment in calculating the pressure on Floyd.

Blackwell then challenged the point about carbon monoxide by asking if Fowler knew how many exhaust pipes were on the squad car. Fowler answered that there were two double exhausts, so four in total. He also knew the make and model of the police car.

Blackwell asked if calling the white substance in Floyd's mouth a "pill" would be "jumping to a conclusion." Fowler replied that he had referred to it as a "white object," not a pill.

Blackwell repeatedly injected questions like, "You don't want to confuse the jury, do you?" To which Nelson finally objected, and the judge called a sidebar. After that, I think such questions stopped.

Blackwell then seemed to be equating "sudden death" with "sudden cardiac arrest." Fowler said the two terms were not synonymous in that a cardiac arrest might be reversed. "The moment of death is not something you can easily document."

Blackwell did get Fowler to agree that "as a physician" he thought Floyd should have been given immediate emergency attention.

Blackwell then brought up the issue of Floyd's respiratory rate, which was visually measured as a normal rate of about 22 breaths per minute. Fowler said it should have been higher around 30 due to exertion and other stressors. Blackwell then asked, "And you have no really basis or baseline to suggest that Mr. Floyd should have been breathing at 30 than normal 22, right?" And Fowler replied that "a person who is getting short of oxygen to their brain will usually increase respiratory rate to more than 30."

After that there was a full 30 seconds of silence before Blackwell moved on to a question about meth.

On redirect Nelson pointed out that the state hadn't provided any evidence of what police gear weighs, nor had it conducted any experiments relevant to its positional asphyxia theory. Fowler noted that more weight would mean more likelihood of leaving a bruise on Floyd.

Nelson reiterated that the state hadn't tested for carbon monoxide. Nor had it tested Floyd's stomach contents for drugs.

Fowler made a point about "oxygen reserves" being in the blood, not the lungs. The air in the lungs, he said, is part of the gas exchange process.

On cross, Blackwell had asked about Chauvin's arm being around Floyd's neck while struggling inside the car. To Nelson Fowler replied that Chauvin appeared to have a "loose grip" and there was a gap between Chauvin's arm and Floyd's neck.

Fowler was the only defense witness of the day and that concluded his testimony.

Edited by MisterSwig
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On 4/14/2021 at 9:22 PM, MisterSwig said:

Nelson then asked (what I think is) a simple question to answer, but Rich, in my view, displayed clear bias in not giving a straightforward answer.

Longer answers than you expect does not necessarily mean bias. What you mean to say is that you didn't think you needed that much information to understand his answer. Scientists often know that answering questions exactly as asked often does not correctly convey the meaning of their answer especially to nonexperts. Not sure if this part was relevant to your synopsis in the first place.

 

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3 hours ago, Eiuol said:

Longer answers than you expect does not necessarily mean bias.

It wasn't about the length of the answer. Simple questions have gotten long replies all throughout this trial, and they didn't bug me as long as they were on point. In this case Rich wasn't on point and he never actually answered the question. Nelson's hypothetical addressed Floyd not resisting. Rich changed it to the police not restraining him. This is classic evasion, and I look for this stuff to judge the credibility of expert witnesses, since I typically lack the knowledge to judge them based on the scientific facts. 

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3 minutes ago, MisterSwig said:

This is classic evasion

it's a response to a loaded question. Who the hell knows what would happen if he got in the squad car. The proper answer was to say that "if he had not been restrained that way, he would not have died". It's a loaded question because answering "yes" makes an assumption about everything else that could possibly occur beyond his expertise and implying that any bad outcome was solely dependent on Floyd not listening. 

Of course you could make arguments about this, it's that this kind of analysis of intentions in the middle of giving us just the facts detracts from judging a legal case.

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9 minutes ago, Eiuol said:

Who the hell knows what would happen if he got in the squad car.

They would have driven him to jail and he wouldn't have died face down on the street in front of Cup Foods. It's not a loaded question. It's a simple hypothetical. You think the prosecution team would have allowed an actual loaded question? No way.

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It's not the most egregious loaded question I have ever seen, and they can even serve a purpose for the person asking besides trickery. But the prosecution didn't need to worry much about it because it was successfully addressed and didn't continue as an issue. 

Driving him to jail still wouldn't be the only possibility, another would be that he would die of a drug overdose anyway. Better to answer in a neutral way to avoid a bias of any sort: "well, I do know that if this didn't happen, he wouldn't have died in this way". There are hidden premises in the question as phrased. If you ask me, at best, Nelson asked a poorly phrased question where he failed to extract an argument. It looks like perhaps he recognized that the answer was fair and moved on. But it was a potential way to find a new path for an argument so I don't fault for asking. 

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6 hours ago, Eiuol said:

Driving him to jail still wouldn't be the only possibility, another would be that he would die of a drug overdose anyway.

You see, that would have been a straight answer, even though I disagree because none of the experts have said he died from a drug overdose.

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The fourteenth day marked the end of witness testimony. But first there were a couple motions. Chauvin invoked his fifth amendment right during the choice to testify hearing. Also, Judge Cahill ruled that the state could not introduce newly discovered evidence about Floyd's carbon monoxide level, because Dr. Fowler had asked specifically for this evidence a few months ago and the state failed to provide it. The state could, however, infer Floyd's carbon monoxide level from an oxygen saturation test already admitted into evidence.

When the jury returned, Mr. Nelson said the defense rests, and Mr. Blackwell recalled Dr. Martin Tobin for the prosecution's rebuttal. Tobin had testified for the prosecution on day nine. He is a world-renowned pulmonologist.

Blackwell showed Tobin a slide from Fowler's testimony. One point on it indicated that Floyd's "carboxyhemoglobin could have increased by 10-18%." This means that the carbon monoxide attached to Floyd's hemoglobin might have risen from the normal range around 0-2% to many times that. But Tobin characterized this proposition as "not reliable." Based on an arterial blood-gas sample, he pointed out that Floyd's oxygen saturation was 98%, which only left a maximum of 2% for potential carbon monoxide.

Turning to the hypopharynx (a portion of the throat), Fowler had said he couldn't find literature to support the idea that compression of the hypopharynx can cause asphyxia. Tobin in rebuttal said that many physiological studies show that if you lower the size of the lungs, you must get a decrease in the size of the hypopharynx. He also said that if you stick your fingers in the sides of your neck, "you know you're going to narrow the hypopharynx." This isn't a "puzzling" thing, he stated, and so people don't do research on it.

On cross Nelson confirmed that "the most common technology" for analyzing blood is the multiple wavelength spectrophotometer, or the CO-oximeter. This might relate to Fowler's prior claim that the pulse oximeter cannot distinguish oxygen from carbon monoxide in the blood. I guess we'll see if it comes up in his closing remarks.

Nelson then wanted to clarify Tobin's point about the lung-hypopharynx relationship. He asked whether the research shows that the hypopharynx is narrowed by "increasing the pressure on the lungs." Tobin replied, "Not quite, it is that if you decrease the size of the lungs that you will get narrowing of the hypopharynx."

And with that the witness testimony concluded.

Edited by MisterSwig
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The trial resumed on Monday with closing arguments. But first Judge Cahill read the charges in this case to the jury. Derek Chauvin, he said, is charged with murder in the second degree, murder in the third degree, and manslaughter in the second degree. In addition to proving that Chauvin caused the death of George Floyd, second-degree murder requires the state to prove that Chauvin intended to inflict substantial bodily harm, and did inflict such harm. Third-degree murder would mean he killed Floyd by intentionally acting in a way imminently dangerous to Floyd. And second-degree manslaughter would be causing the death through culpable negligence. Also, the state must show that Chauvin's use of force was not authorized by law.

Because the closing remarks do not constitute evidence, I won't summarize them in detail, despite taking thirty-one pages of notes while watching live. Rather, I'll simply report items that I personally found interesting, mostly rhetorical points or arguments. My focus won't be on the numerous repetitions of evidence already covered.

Mr. Schleicher presented the state's closing argument. His opening theme described Floyd's family and how Floyd in life was surrounded by people he cared about, contrasted with his final minutes when he was surrounded by strangers who didn't listen to or help him. Schleicher painted a picture of Chauvin "grinding, twisting and holding" Floyd on the ground for nine minutes and twenty-nine seconds. He said that Chauvin had to know what was right beneath him, that Floyd was limp.

Schleicher noted that Chauvin was on trial for what he did. He then pointed to a picture of Chauvin with the knee on Floyd and added, "That is what he did." He characterized it as an assault, not policing. He said it was "unnecessary, gratuitous, disproportionate, not an accident."

Schleicher pointed to Chauvin's body language in the photo and said it showed an "ego-based pride." Chauvin had the authority, wanted to win, and wasn't going to be told what to do. Schleicher described it as "pride over policing."

Schleicher accused the officers of not recognizing that Floyd was in crisis when not wanting to get in the backseat. The problem was the "little car," not that Floyd was trying to escape.

Schleicher said that the excessive force began when the officers stayed on top of Floyd. He repeated several times throughout the closing, "Believe your eyes, what you saw, you saw."

Schleicher characterized some ideas as "nonsense," such as the notion that even though Floyd was "walking and talking, breathing and interacting with people, he chose that moment to die of heart disease."

Schleicher wondered why they were even talking about the drugs in the car when there was the toxicology report.

He said that Floyd would have lived had he been put in the recovery position or given CPR. Chauvin's indifference, he said, was the opposite of compassion. Schleicher suggested that the officers didn't use the hobble device because they didn't want to call the sergeant on Memorial Day.

Schleicher described Chauvin as "mocking" Floyd by saying "uh huh" and "it takes a lot of oxygen" to talk.

Addressing "the greatest skeptic" among the jury, Schleicher asked, "How can you justify force on this man when he has no pulse?"

Schleicher then concluded his remarks by saying, "This case is exactly what you thought when you saw it first, when you saw that video. You can believe your own eyes." He said it's what you "felt in your gut" and "know in your heart."

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Mr. Nelson began his closing argument for the defense by describing how "beyond a reasonable doubt" is the highest standard of proof.

Next he made a theme of intellectual honesty. In that context he pointed to some aspects of Dr. Tobin's testimony. Tobin had claimed that we can infer Floyd's carbon monoxide level from the test that found 98% oxygen saturation. Nelson suggested that using the same test he could argue that we know Floyd wasn't asphyxiated because he had 98% oxygen in his blood. But that wouldn't be honest, he said, because we know that Floyd was given oxygen by the paramedics during resuscitation efforts.

Nelson asked the jury to compare the evidence against itself, to test it, to challenge it. He asked them to begin with innocence and to see how far the state can get. He offered an analogy of baking chocolate chip cookies. You need all the ingredients to bake cookies. If you lack one ingredient, you can't make them. Likewise, if the state is missing one element of the charges, the verdict is not guilty.

Nelson focused on two elements common to all three charges: whether the force was authorized and whether Chauvin caused Floyd's death. His remarks here mostly reiterated the evidence, stressing the "totality of the evidence" and that the situation was "dynamic." He walked through the timeline and played portions of the videos, while arguing that Chauvin approached and assessed the scene of active resistance and then conducted himself reasonably, using less force than authorized.

Nelson said that the state's focus on the 9:29 was not proper analysis, because it ignores the previous 16:59.

Nelson described Floyd as continuing to resist on the ground, and the police as "reasonable officers discussing the scene." He noted that they weren't doctors and probably didn't even know about anoxic seizures.

Nelson said he'd been thinking a lot about the difference between perspective and perception. Perspective is the angle you have. For example, he couldn't see four of the jurors from his seat in the courtroom. Perception is how you interpret what you see. He asked the jury to recognize bias and analyze the case by the evidence. After pointing to some instances where eyewitnesses made mistakes due to perspective or interpretation, he said, "We don't look at this from the perspective of a bystander but from a reasonable officer."

Nelson said Chauvin was looking around at Floyd and the crowd, comparing actions. He then noted a critical moment. Dr. Tobin had said Floyd's last breath was at 8:25:16. Nelson showed that this was the moment when an approaching bystander startled Chauvin who then pulled out his mace. This changed Chauvin's perception of what was happening, Nelson said.

Nelson stressed that the situation wasn't safe for performing CPR. Plus, the officers expected EMS to arrive quickly. Also, the paramedics didn't think the scene was safe.

Regarding intent, Nelson said that police know they are being recorded, which is inconsistent with an intent to do something unlawful. He noted that Chauvin called EMS and told Floyd to relax, which is also not consistent with unlawful intent. He said that "these are officers doing their job in stressful situations." He referred to the incident as "tragic."

Nelson then addressed the cause of death. He said that the state is trying to convince the jury that asphyxia is the singular cause of death, that the heart disease, hypertension, toxicology, and physical exertion played no role. He noted that if these things played a role, then they were not the natural consequences of the police restraint, but of the deceased's actions.

Nelson reviewed some positions from the state's expert witnesses and said their testimonies "fly in the face of reason." He said the state didn't like Dr. Baker's findings, because his findings didn't support "what you see is what you should believe." Nelson brought up Dr. Tobin again, as a demonstration of bias. Tobin had used an image of Floyd pressing his knuckles into the tire, in order to argue that Floyd was trying to free up his right lung from being compressed. Nelson played the video segment showing that this moment occurred fifteen seconds after Floyd went to the ground, when Floyd was still in the side recovery position.

Nelson talked about the drugs. He said he wasn't suggesting an overdose, but that the death was a "multi-factorial process," and for the medical experts to "minimize" the effects of drugs is "incredible."

At this point Judge Cahill interrupted Nelson in order to break for lunch.

Court restarted, and Nelson talked about Dr. Fowler's position that Floyd died from heart hypoxia, not brain hypoxia. He said the timeline is consistent with sudden cardiac arrhythmia, noting only 66 seconds between Floyd's "last word and last breath." This, he said, is not consistent with a longer process of brain hypoxia.

Regarding the carbon monoxide theory, Nelson said video evidence shows that Officer Lane never touched the keys in the ignition, so the car was running.

Nelson discussed the concept of a "superseding cause." He defined it as "a cause that comes after the defendant's actions, alters the natural sequence of events and is the sole cause of a result that would not have otherwise occurred." This, he argued, pertains to the fact that after arriving on scene it took EMS seven minutes and forty-six seconds to pump air into Floyd. Nelson asked, "What would have happened if EMS had started resuscitation efforts right away?"

Finally, Nelson reiterated the point about Floyd's death being a "multi-factorial process" and concluded his remarks.

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Posted (edited)

Mr. Blackwell gave the state's closing rebuttal. He again stressed "believe your eyes." He said common sense was so simple that even the nine-year-old bystander understood when she told Chauvin to "get off of him."

Blackwell started routinely referring to Nelson's arguments as "stories," such as the idea that the prone position is safe. Later he said the state was about getting to the truth, not a story. Ultimately Cahill sustained Nelson's objection and instructed the jury to disregard Blackwell's use of the word "story."

Blackwell took issue with how Nelson had characterized some of Dr. Baker's testimony, such as whether Baker used "homicide" as a "medical term" or not. He also insisted that the prosecution only needs to show that Chauvin's actions were a "substantial factor," not the only factor, in Floyd's death. He said that the use of force set off the medical issues.

Regarding body language, he asked if in the video Chauvin had the face of someone afraid. Floyd, he said, had the face of fear and worry.

Blackwell described the crowd as a "bouquet of humanity." They were symbols of love and courage, he said. Yet they were torn between Floyd and the police, because they respected the badge.

Blackwell came up with a Johnnie Cochran-esque rhyme: "There can be no excuse for police abuse."

He repeated points about the traffic, paramedics and fentanyl. Regarding carbon monoxide, he asked who would put someone's face in front of a tailpipe. About meth: "what meth?" Blackwell called it a "miniscule" amount, below "therapeutic levels."

In response to Nelson's point that Chauvin doesn't have the experience of a medical doctor, Blackwell said that Chauvin didn't need it because "you know who else isn't a medical doctor, a nine-year-old girl." He said that you don't need a PhD to understand how fundamental breathing is to life.

Blackwell then addressed whether the state must prove that Chauvin intended to act unlawfully. He said that they must prove only that Chauvin "intended to do what he did."

Blackwell then referred to defense arguments as "shading the truth," and Judge Cahill instructed the jury to ignore that phrase as well.

Finally, Blackwell ended with what he called the defense's "largest departure from the truth." He concluded: "You were told that Mr. Floyd died because his heart was too big. You heard that testimony. And now, having seen all the evidence, having heard all the evidence, you know the truth. And the truth of the matter is that the reason George Floyd is dead is because Mr. Chauvin's heart was too small."

After that Judge Cahill gave the jury instructions and sent them to deliberate. He then ordered the bailiff to keep them sequestered.

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10 hours ago, MisterSwig said:

Finally, Nelson reiterated the point about Floyd's death being a "multi-factorial process" and concluded his remarks.

He strikes me as arguing that there are so many factors involved that we can't really know what was going on, nor can we trust the evidence that people perceive - the only perspective we can even look at is the person accused. And worse, he conflated perspective (as in the way you judge things) with perception (what you see with your eyes). 

 

 

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11 minutes ago, Eiuol said:

He strikes me as arguing that there are so many factors involved that we can't really know what was going on

"Multi-factorial process" is how Dr. Baker described it. It's not that we can't know what was going on, it's that the evidence points to a combination of factors causing the death.

16 minutes ago, Eiuol said:

the only perspective we can even look at is the person accused.

He's not saying that. He's saying we should consider the evidence from the perspective of a reasonable officer, which is the standard for the use of force in this case.

19 minutes ago, Eiuol said:

he conflated perspective (as in the way you judge things) with perception (what you see with your eyes).

I think he got perspective basically right, but he conflated perception with interpretation.

Given the guilty verdict, I'll have to consider how to present my view of Chauvin's innocence. I'm not into offering half-assed hot takes like Mr. Reagan. While he and I agree that Chauvin is innocent, he still thinks Floyd died from an overdose, and I don't think it's that simple.

Thanks for participating in the thread, Eiuol. I appreciate you taking the time to follow it.

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8 minutes ago, MisterSwig said:

Thanks for participating in the thread, Eiuol. I appreciate you taking the time to follow it.

Sure, it give me a lot of info. I see what you mean about Nelson's closing arguments, but something about his wording rubs me the wrong way. And that's not just from your portrayal. It might be that it sounds like he wanted to go the route of discussing epistemology and how to judge evidence, but he didn't end up using it in a way other than pointing out elements of skepticism (I don't think he is a skeptic, I'm saying that it doesn't sound like he gave a sufficiently complete argument).

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7 hours ago, MisterSwig said:

Given the guilty verdict, I'll have to consider how to present my view of Chauvin's innocence. I'm not into offering half-assed hot takes like Mr. Reagan. While he and I agree that Chauvin is innocent, he still thinks Floyd died from an overdose, and I don't think it's that simple.

I, too, am disappointed in the guilty verdict. Providing the epistemic justification requires being able identify and guide others through judicial landscape presented.

Thanks for providing the summation. It was nice having it in one place, unfolding as you presented it.

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"The world exhaled" (a breathless CNN anchor announced). Too soon to celebrate for those who feel part-sorry 'peaceful' protests have been averted? The sentencing still to come, that might be greatly reduced to 10-15 years. That word of warning by CNN, again, wanting obviously to not let things go too far off the boil. Then this.

Dershowitz: https://www.gatestoneinstitute.org/17302/derek-chauvin-conviction-supreme-court

 

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2 hours ago, dream_weaver said:

I, too, am disappointed in the guilty verdict.

What could have you disappointed anyway? I can understand it not going as you judged it to be initially, but it's always important to remember that you were not in the courtroom and not spending nearly as much time thinking about it and focusing on the evidence as the jury.

It seems like the prosecution made a better case anyway, just as far as quality of argument. I think the only real case the defense ever had was that drug overdose might have been the primary cause of death, or that there was truly no reasonable expectation that somebody would stop the knee restraint. Drug overdose was pretty much ruled out.. As far as restraint, a lot seemed to be made of just what the officer judged to be the case rather than if he really was a rational actor or judging the nature of the situation as a whole for more than just the officer's perspective. Notice that Nelson said that we should not use anyone else's perspective, just the hypothetical reasonable officer's perspective - and I don't think it was established that the officer was acting from a reasonable perspective anyway. After all, following training and expected procedure isn't necessarily rational in every situation. Whether he was rational seemed to depend on, in the defense's argument, if he was following training.

So it looks to me like the defense was doing the best strategy they could do, which was introducing some skepticism - what I judged to be way too much skepticism. Philosophically unsound skepticism.

I didn't like the prosecution's rhetorical strategy, but I don't think that really detracted from anything. I think the pulmonologist offered the best evidence. I don't think the prosecution needed to do much to make their case. 

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9 hours ago, Eiuol said:

What could have you disappointed anyway? I can understand it not going as you judged it to be initially, but it's always important to remember that you were not in the courtroom and not spending nearly as much time thinking about it and focusing on the evidence as the jury.

It is not the 'amount of time' nor is it 'the degree of focus' that is spent on the information introduced into the courtroom that guides the minds charged with sifting such information into the essential from the inessential.

I think Rand is right regarding justice. It cannot cease to exist, though it is possible for men to lose sight of it. She is also right regarding the rise of politics out of ethics. The court system looks at a particular legal aspect from a particular social moral perspective. Where goes the ethic of a people, follow the legal edicts. If your assessment is correct then the verdict follows. No worries.

Society "creates the painting", the verdict, the court proceedings, the media portrayal. You and I evaluate it, per our "metaphysical/epistemological value judgements". The artists (in this case) select the elements to portray. What is essential with the elements presented are determined by you and I.

The jury consisted of twelve individuals. Society consists of many more individuals. A particular right or wrong jury is merely a contributing factor to the course of human events. It is a right or a wrong society that determines the course of human events.

 

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I think you avoided the question. What are you disappointed by? I was only criticizing how you are seeming to be an armchair juror, so I was pointing out how you shouldn't be disappointed by what a judgment should have been compared to what it actually was. Unless there was a blatant disregard for thinking in any way whatsoever (but there wasn't).

 

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Clarification about my phrasing: I'm trying to say that you shouldn't be disappointed if the verdict was different than the one you thought was best. In a sense, jurors are the experts on the case regarding blame because of the hours upon hours they spent sitting there in the court room listening and thinking - experts are not infallible but what they judge holds more epistemological weight than what you think as a nonexpert. 

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One can't lose sight of the climate of intimidation outside the trial. The jurors are only human and as much as they likely wanted the verdict be truthful to the evidence could not have not known that their personal lives, families and associates were under very possible threat, and violent acts, egged on or covertly encouraged by pols and the rest would spread through the country at large. At very least they would suffer social and work ostracization from that point on. One has to feel sorry for them being placed in an invidious position, damned if they do .... The facts presented them didn't change what was already a fait accompli. They would have to find him guilty on all charges. Chauvin is guilty of manslaughter with aggravating circumstances. Murderous intent wasn't there, or wasn't obvious - nor was proven. A 10 to 15 sentence fits the crime, probably. This was trial by camera: everyone saw the clip, and the rest was details. Every armchair 'expert' has been swayed by his facial expression and "body language", which was all it needed. That he is a brutal person and a bad policeman has been turned into - and confirms - white men are racist, all police are rotten and racism is entrenched in the system. The verdict is an implicit admission of guilt of these contemptible allegations. There's how street justice gradually gains control over rule of law. Also how policemen will become afraid to act promptly and forcibly in defense of citizens or themselves.

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