Outside the Hennepin County Courthouse on Tuesday morning, a crowd chanted, “If George don’t get it, SHUT IT DOWN! If George don’t get it, SHUT IT DOWN!” while the jurors deliberated inside. Although 14 jurors heard the case, Judge Peter Cahill excused the two alternates after closing arguments on Monday, and Jurors #96 and #118 went home.
The remaining 12 jurors began deliberating on Monday evening and continued into Tuesday, returning with a verdict after ten and a half hours. Judge Cahill read the verdict: Derek Chauvin was found guilty on all three counts: second-degree murder, third-degree murder, and second-degree manslaughter.
As the crowd outside the courthouse began to celebrate, Mr. Chauvin watched as Judge Cahill asked the jurors, one-by-one, if these were their “true and correct” verdicts. Each juror said, “Yes.” The judge thanked and excused the jury.
Judge Cahill then informed Mr. Chauvin and his lawyer, Eric Nelson, that sentencing will be in eight weeks. Mr. Chauvin’s bail was revoked, and he was remanded into custody of the sheriff. Mr. Chauvin was the model of compliance as he was handcuffed and led out of the courtroom, unlike the man who now has both a city square and pending legislation named after him.
Here are charges the jury found Mr. Chauvin guilty of “beyond a reasonable doubt.”
Count One: Murder in the Second Degree in connection with the death of George Floyd.
Definition: Under Minnesota law, a person causing the death of another person, without intent to cause the death of any person, while committing or attempting to commit a felony offense is guilty of the crime of Murder in the Second Degree.
Each count is broken down into “Elements” that must be met. The elements for second-degree murder are:
- The death of George Floyd must be proven.
- The Defendant caused the death of George Floyd.
- The Defendant, at the time of causing the death of George Floyd, was committing or attempting to commit the felony offense of Assault in the Third Degree. It is not necessary for the State to prove the Defendant had an intent to kill George Floyd, but it must prove that the defendant committed or attempted to commit the underlying felony of Assault in the Third Degree.
- The Defendant’s act took place on or about May 25, 2020 in Hennepin County.
Elements One and Four were obviously met, and proven with George Floyd’s death certificate.
The jury was given definitions to help them understand Elements Two and Three. The definition of “caused the death” was:
The Defendant’s act or acts were a substantial causal factor in causing the death of George Floyd. . . The fact that other causes contribute to the death does not relieve the Defendant of criminal liability. However, the Defendant is not criminally liable if a “superseding cause” caused the death. A “superseding cause” is a cause that comes after the Defendant’s acts, alters the natural sequence of events, and is the sole cause of a result that would not otherwise have occurred.
If the jury believed Mr. Chauvin’s weight on Floyd’s body was the foremost reason why Floyd died, Floyd’s poor heart and drug intake would not relieve Mr. Chauvin of criminal liability, even if the jury felt those things played a role and contributed to Floyd’s death.
Element Three is complicated, as it entails a crime within a crime. The jury had to believe that Mr. Chauvin was committing Assault in the Third Degree, which has two elements:
- Defendant assaulted George Floyd. “Assault” is the intentional infliction of bodily harm upon another or the attempt to inflict bodily harm upon another. The intentional infliction of bodily harm required proof that the Defendant intentionally applied unlawful force to another person without that person’s consent and that this act resulted in bodily harm.
- Defendant inflicted substantial bodily harm on George Floyd. It is not necessary for the State to prove that the Defendant intended to inflict substantial bodily harm, or knew that his actions would inflict substantial bodily harm, only that the Defendant intended to commit the assault and that George Floyd sustained substantial bodily harm as a result of the assault.
In short, Element One requires that Mr. Chauvin purposely inflicted pain or injury on Floyd. One can argue that as a police officer restraining a suspect, there was no intent. However, if the jury found Mr. Chauvin’s use of force unlawful, Element One would fit. Any police officer using the “pain compliance” techniques that were described during the trial would meet Element One. Officers are taught to apply pain to someone resisting arrest, and the idea is that the pain will stop when the subject complies with the police officer.
Element Two requires that Floyd suffered a substantial injury, and there need not be proof that Mr. Chauvin intended to cause it. Unintentionally causing Floyd’s death would satisfy the requirement for Element Two.
Before the verdict came in, Court TV hostess Julie Grant conducted a phone interview with legal scholar Alan Dershowitz, famous for defending O.J. Simpson. Mr. Dershowitz was concerned about the implications of Mr. Chauvin being convicted of second-degree murder.
If the prosecution’s theory prevails in this case, then every killing automatically becomes second degree murder, because every time you shoot somebody and kill somebody, you also assault them. . . And if assault becomes the underlying felony, which it is not in almost every other state, and not under the American Law Institute, and not under any form of scholarship — If you allow the underlying felony to be an assault, then you eliminate the degrees of murder. . . Every time somebody shoots someone, and that results in death, it will be the highest degree of murder, felony murder, because every shooting entails an assault.
Count Two: Murder in the Third Degree in connection with the death of George Floyd.
Definition: Under Minnesota law, a person causing the death of another by perpetrating an act eminently dangerous to others, and evincing a depraved mind, without regard for human life, but without intent to cause the death of any person.
- The death of George Floyd must be proven.
- The Defendant caused the death of George Floyd.
- The Defendant caused the death of George Floyd by an intentional act that was eminently dangerous to other persons. . . The act is highly likely to cause death.
- Defendant acted with a mental state consisting of reckless disregard for human life. The defendant’s act may not have been specifically intended to cause death, and may not have been specifically directed at the person who died, but must have been committed with a conscious indifference to the loss of life that the dangerous act could cause.
- The defendant’s act took place on or about May 25, 2020 in Hennepin County.
Mr. Dershowitz explained on Court TV that Murder in the Third Degree is typically used when someone shoots into a crowded area.
Count Three: Manslaughter in the Second Degree in connection with the death of George Floyd.
Definition: Under Minnesota law, whoever, by culpable negligence, whereby he creates an unreasonable risk and consciously takes the chance of causing death or great bodily harm to another person, causes the death of another, is guilty of Manslaughter in the Second Degree.
- Death of George Floyd must be proven.
- Defendant caused the death of George Floyd by culpable negligence whereby the defendant created an unreasonable risk and consciously took a chance of causing death. . . The defendant may not have intended to be harmful, but an ordinary and reasonably prudent person would recognize that as involving a strong probability of injury to others.
- Must have happened in Hennepin County.
Mr. Dershowitz told Miss Grant that he did not think either Second Degree or Third Degree Murder made sense in this case. He quoted Thomas Jefferson: “A criminal statute must be so clear that a person of reason has to be able to understand it, if he reads it while running.” Mr. Dershowitz said:
Now I read this while sitting, having taught criminal law for 50 years and done 250 appeals in criminal cases — I do not understand either the second degree or third degree murder statutes to apply to the allegations in this case. Manslaughter fits it to a “T,” but second and third degree murder do not seem to cover the conduct at issue here.
Mr. Dershowitz was very critical of Judge Cahill for not sequestering the jury from the beginning, and of the fact that Minnesota vs. Derek Chauvin became so politicized. “There has never been a case like this,” he said. “This is much, much bigger than O.J. Simpson, or any of the other cases that I have been involved in. And the idea that . . . the jury should be allowed to participate in the claim that this should be a referendum — juries don’t vote on referendum. They vote on proof beyond a reasonable doubt of the elements of the specific offense against a specific individual. . . Their role is very conflicted now.”<
Retired MPD officer Scott Creighton was the first witness. Derek Chauvin’s defense lawyer, Eric Nelson, asked Mr. Creighton questions about an arrest he made on May 6, 2019, when he stopped a car with George Floyd inside.
Mr. Creighton approached the car from the passenger side. The window was down and he gave some commands, but Floyd would not do what he was told.
The defense played Mr. Creighton’s body camera footage from that 2019 arrest. Floyd begged not to be shot, just as he did when he was arrested in May 2020. The officer said he would not shoot, but Floyd did not keep his hands visible, so the officer threatened to use the taser on him. One of the police officers is heard asking Floyd to spit out what’s in his mouth.
On cross-examination, prosecutor Erin Eldridge asked if Floyd had been awake, conscious, and not in medical distress. He replied that Floyd had been “incoherent.” “Mr. Floyd didn’t drop dead while you were interacting with him?” Eldridge asked. Mr. Creighton said, “No,” and was excused.
The next witness was Michelle Monseng, a retired Hennepin County paramedic, who had dealt with George Floyd after the 2019 arrest. When she arrived, he was upset and confused. She said it was hard to evaluate him.
Floyd told her he had been taking Percocet pills, seven to 10 at a time, every 20 minutes. She thought his agitated state was inconsistent with taking opioids. Floyd also told her he had taken a pill when the officers arrested him. Miss Monseng asked Floyd why he was taking all of these pills and he said he was addicted.
Miss Monseng found that Floyd’s blood pressure was 216 over 160, a very high reading, which could easily lead to a stroke. Floyd told her he had a history of high blood pressure but he had not been taking his medicine. She told him he should go to the hospital, but he did not want to go. “It was hard to tell exactly what he was upset about,” Miss Monseng said.
On cross-examination, Miss Eldridge asked if Miss Monseng had given Floyd Narcam, which is used to treat narcotic overdoses. She replied that Floyd’s respiration, blood oxygen, and heart rate were normal, so she did not. Miss Eldridge asked, “He obeyed commands?” “Eventually,” Miss Monseng said, with a laugh.
The next witness was a black woman, Shawanda Hill. She kept fidgeting and adjusting her burgundy wig as Judge Peter Cahill spoke to her before the jury was called back in. He asked her if she would be willing to say whether she was under the influence on the day Floyd died. He told her he did not think that would open her to criminal liability, and said she could talk to a lawyer. She said that was not necessary and agreed to testify.
When the jury returned, Miss Hill said she ran into Floyd — on police cam video she called him her “ex” — at Cup Foods that day. She said Floyd’s behavior was normal and he offered to give her a ride, so she got in the car with him. She got a phone call from her daughter, and Floyd fell asleep. When Cup Foods personnel came to the car to talk about the counterfeit $20 bill, he was asleep. Miss Hill said, “They tried to wake him up over and over . . . he woke up, made a little gesture, and nodded back off.” She gave up on the idea of getting a ride home and called her daughter to come get her.
Asked if this was a sudden change from his condition in the store, Miss Hill said that Floyd had told her he was tired when they were in the store. Miss Hill kept trying to wake Floyd up. Mr. Nelson asked her if the store employees came back a second time, and she said no. Earlier in the trial, there was video and testimony that showed store employees went to Floyd’s car twice.
When Mr. Nelson said, “No further questions,” Miss Hill’s mouth dropped open in surprise. Then she looked angry. She seemed like she was high. As prosecutor Matthew Frank cross-examined her, she interrupted him, and when he said they shouldn’t talk over each other, she rolled her eyes.
Miss Hill said that Floyd was not always coherent when she tried to talk to him that day. When the police came over, she tried to wake him up:
I said, ‘Floyd the police is here, it’s about the twenty-dollar bill wasn’t real.’ I kept saying, ‘Baby, get up.’ And so we looked, we looked to the right, and the police tapped on the window with a flashlight. And I said ‘Floyd!’ He was like, ‘What? What?’ And I was like, ‘Baby, that’s the police. Open the door. Roll down the window. Whatever he tell you to do.’ So he looked back, and he seen the man, the man with the gun at the window. And he instantly grabbed the wheel, and he’s like, ‘Please, please, don’t kill me. Please, please, don’t shoot me.” . . . And I’m like, ‘Floyd, Baby . . . .
“Did he seem startled when the officer pulled a gun on him?” Mr. Frank asked. “Very.”
Next on the stand was Peter Chang, an officer with the Minneapolis Park Police. Although the park police and city police are separate branches, they get the same training and attend the same academy. Mr. Chang was at a nearby park when he heard dispatch asking for assistance for squad-car 320. It is common for the park police to help city police.
When he got to Cup Foods, one of the officers told him they were “Code 4,” meaning the scene was safe. Floyd was in handcuffs, sitting on the sidewalk and leaning against the wall. Officer Alexander Kueng asked Mr. Chang to identify the suspect. After Mr. Chang identified Floyd on the computer in his car, he saw Officer Kueng and Officer Thomas Lane trying to pin Floyd against the squad car. He wanted to help, but Officer Lane asked him to go watch Floyd’s car.
When Mr. Chang approached the car, the two passengers were on the sidewalk, trying to reach inside the car, but he told them not to. Squad-car 330 arrived and parked in front of Floyd’s SUV, and Mr. Chang directed the officers to where Officers Kueng and Lane were struggling with Floyd. Mr. Chang’s main focus was the car and the two people who had been detained beside it. He noticed a crowd becoming loud and aggressive, and he “became concerned for the officers’ safety.” The voices got louder and he said bystanders were “very aggressive.” He did not help the officers because he had been told to watch the car, and he did not know if the car had been searched.
The defense played Mr. Chang’s body camera footage, which corroborated what he said on the stand. When Miss Hill notices Floyd struggling with the police, she is surprised. “Man, he still won’t get in the car. Just sit down, dude! What’s he doing? Now he’s going to jail.” At one point in the video, Mr. Chang asks Morries Hill what his name is, and Hill gives the name “William Ricardo.” Hill also says that Floyd had been falling asleep.
Traffic noise is very loud on Mr. Chang’s body camera, but two of the prosecution’s witnesses, bouncer Donald Williams and firefighter Genevieve Hansen, can be heard shouting in the background. Their voices alarm Miss Hill and Mr. Hall, who move over to get a better view of what is going on.
Officer Chang tells them to stay put. “You don’t want to get involved in that.” He also tells them that an ambulance was called, explaining that Floyd “might have hurt himself.”
Miss Hill goes to the street corner and shouts, “He on the ground and everything!” When the ambulance arrives, she asks why Floyd is going to the hospital, and says Floyd might need his phone, which is in the car. Mr. Chang keeps them away from the car, and tells Miss Hill that Floyd won’t need his phone because he is “gone.” When he tells her a second time, he says that Floyd is “gone, off to the hospital.”
Charles McMillian, a 61-year-old bystander who urged Floyd to cooperate with police, is seen going over to Miss Hill and telling her, “They f***ed him up.” He then tells Miss Hill that someone had a knee “on his back.”
The next witness was Nicole MacKenzie, a police officer who testified for the prosecution but was now called for the defense. Miss MacKenzie is the medical coordinator for the MPD, and she trains officers on medical topics, including “excited delirium.” Officer Thomas Lane attended this training, and during the Floyd arrest is heard on body cam video wondering whether Floyd had excited delirium.
Miss MacKenzie explained that it is a combination of things. It can be caused by drugs, a mental health problem, or cardiovascular disease. Officers are taught an acronym, NOT A CRIME, to help identify it:
- Naked Hyperthermia: Heavy sweating; people tend to take off their clothes to cool down.
- Objects: Violence directed at objects; people smash things.
- Tough: They seem unstoppable and have “superhuman strength”
- Acute: Rapid onset; people will say they “just snapped.”
- Confused: Rapid speech.
- Resistance: Against the police.
- Incoherent: They talk nonsense.
- Mental: It’s a mental-health emergency.
- EMS: Paramedic should be called right away.
Miss MacKenzie said that if an officer suspects excited delirium, he needs to use restraint and to call for help from other officers. People with excited delirium can go into cardiac arrest; she teaches officers to put a person on his side for recovery. The defense has argued that it may have been reasonable to think Floyd had excited delirium and that this justified Mr. Chauvin’s use of force.
After lunch, Mr. Nelson called Barry Brodd, a use-of-force consultant. Mr. Brodd originally offered his services to the City of Minneapolis, but they did not retain him, so the defense did, for a fee of $350 per hour. He had already been paid $11,400 before taking the stand.
He said that after examining the evidence, “I felt that Derek Chauvin was justified, was acting with objective reasonableness, following Minneapolis police department policy, and current standards of law enforcement.”
Mr. Brodd said that he focuses on whether the officer had a legal authority for the detention, what level of resistance the police officer is dealing with, and whether the officer’s use of force is proportional to the resistance. He said officers don’t have to fight fair; they can go up a level in force to get control. If someone hits a police officer, he does not have to fight back with his fists; he is allowed to use his taser or gun.
Mr. Brodd did not think Mr. Chauvin had used deadly force. To explain why, he said that if an officer responds to a call and the suspect fights with the officers, the officer is justified in using a taser to overcome non-compliance. If that causes the suspect to fall, hit his head, and die, then the death is accidental and not a result of using deadly force.
Mr. Brodd testified that he teaches officers to use extra caution when dealing with people on drugs, because “they may go from compliance to noncompliance in a heartbeat.” He said he trains officers to keep drugged-up suspects handcuffed. “There have been instances where handcuffs are removed, and medical assistance is given, and the person is right back to fighting you and you’re in a fight for your life.”
Mr. Brodd said that he does not consider it use-of-force to put someone face down in what is called “prone control.” He said officers are trained that it is safer to put a suspect on the ground. It limits what he can do with his hands and feet, and gives the officer more time to react. He said that since Floyd kicked at Mr. Lane when they put him on the ground, the officers would have been justified in using a hobble to tie up his legs, but they chose not to use it.
Mr. Brodd also said that prone control is helpful in dealing with a suspect on drugs, because it will keep him from getting hurt trying to escape, and will stop him from choking if he vomits. “It doesn’t hurt and you’re using minimal effort to keep them on the ground.” He also said that from the videos he could see that the menacing crowd was distracting Mr. Chauvin.
Mr. Frank began his cross-examination by asking if we are to believe that being made to lie handcuffed and face down on a hard street was not use of force. Incredibly, Mr. Brodd said it was not. The prosecution reminded Mr. Brodd he had said that “prone control” does not hurt and then asked, “If the prone position would inflict pain, would that change your opinion on whether this was use of force?”
Mr. Brodd answered, “Only if the positioning of the body, or if the officers were manipulating Mr. Floyd’s hands in a way that would create pain, then yes, I would say that would be use of force.” More than one witness had already used video screen shots to show that Mr. Chauvin was pressing down on Floyd’s hands in a way that deliberately causes pain.
“If Floyd experienced pain,” Mr. Frank asked, “Is that use-of-force?” Mr. Brodd answered, “If the pain was inflicted through the prone control, that would be use of force.”
Mr. Frank showed a screenshot from a bystander video that shows Mr. Chauvin in the worst possible light. Floyd is unconscious and Mr. Chauvin seems to have a hand in his pocket with his knee on Floyd’s neck. Mr. Frank asked if Mr. Chauvin was “on top of” Floyd, and after some disagreement about what “on top” meant, Mr. Brodd gave up and agreed that they could say he was “on top.”
Mr. Frank said that both of Mr. Chauvin’s knees were on Floyd, and he asked if Mr. Chauvin’s 140-pound body weight plus the weight of his uniform and equipment could cause pain. Brodd answered, “It depends on the intent of the officer,” but ultimately gave in again and said that Mr. Chauvin’s position on Floyd could produce pain and could therefore be use-of-force.
When Mr. Frank asked about positional asphyxia, Mr. Brodd said that positional asphyxia is a risk if you are obese, but he acknowledged that someone pressing down on you could contribute to positional asphyxia.
Mr. Frank asked about the side-recovery position. Mr. Brodd had tried to say there wasn’t enough space for Mr. Chauvin to put Floyd in that position, but Mr. Frank played body cam footage that showed Floyd briefly on his side with his legs tucked up, even while he was resisting on the ground.
When Mr. Frank asked Mr. Brodd about the autopsy report, Mr. Brodd said he hadn’t read it.
Mr. Brodd said that Mr. Chauvin did not have his weight entirely on Floyd, because Mr. Chauvin had shifted his weight more onto his calves. Mr. Frank asked if Mr. Brodd had a specific moment in the video he could point to where that happens. Mr. Brodd said that he would have to look at the screenshots from the videos. Mr. Frank shuffled through his papers and pulled up the photo where Mr. Chauvin’s toe is off the ground. The toe not touching the ground was circled in red.
Mr. Brodd tried to argue that Floyd’s movement could have shifted Mr. Chauvin’s toe off the ground, but he had no photo to back this up. This was an example of what the prosecution did often: take a single moment from the arrest and get Mr. Brodd to agree that it could have been typical of the entire time Floyd was restrained.
Mr. Nelson played the video of Mr. Lane suggesting that Floyd be put in the side recovery position and Mr. Chauvin saying, “Not yet.” Mr. Brodd admitted that Floyd had become compliant by then. Mr. Frank asked Mr. Brood what a compliant person would look like. He replied that a compliant person would be “resting comfortably with his hands behind his back.”
“Did you say resting comfortably?!” Mr. Frank asked, “Resting comfortably on the pavement?!”
Mr. Frank badly damaged the credibility of a man who should have been an unshakable witness for the defense. Mr. Nelson did his best on redirect, but never regained his footing.
The only witness on the stand yesterday was Dr. David Fowler, a retired forensic pathologist who worked for the Maryland medical examiner and spent his career determining causes of death. He has testified in court many times, and was hired by the defense at $350 an hour.
The purpose of his testimony was to plant reasonable doubt in the minds of the jury on the question of whether Derek Chauvin’s actions really were a substantial contributor to George Floyd’s death. To do this, he had to show that Floyd’s medical condition was serious enough to have contributed substantially to his death, and he put it in these words: “In my opinion, Mr. Floyd had a sudden cardiac arrhythmia due to his atherosclerotic and hypertensive heart disease. . . during his restraint by police. . . .”
The doctor said significant contributing conditions were narrow arteries, heart disease, Fentanyl and methamphetamine, exposure to vehicle exhaust that increased carbon monoxide in the bloodstream, and Floyd’s paraganglioma: “All of those combined to cause Mr. Floyd’s death.”
When Derek Chauvin’s defense attorney, Eric Nelson, asked the doctor his opinion on the manner of Floyd’s death, the doctor listed the five official possibilities: Homicide, suicide, natural, accidental, or undetermined. Dr. Fowler, who spent much of his life in South Africa and speaks with a British accent, said, “These categories are unique to the United States.” The Center for Disease Control requires that one of them be put on death certificates for statistical purposes.
This is important because Floyd’s death was officially “homicide,” which sounds like “murder” to most people, but need not imply guilt. The National Association of Medical Examiners (NAME) defines each category, and death due to positional restraint may be classified as homicide. Dr. Fowler cited the guideline:
Deaths due to positional restraint induced by law enforcement personnel or to choke holds or other measures to subdue may be classified as Homicide. In such cases, there may or may not be intent to kill, but the death results from one or more intentional, volitional, potentially harmful acts directed at the decedent (without consent, of course). Further, there is some value to the homicide classification toward reducing the public perception that a “cover up” is being perpetrated by the death investigation agency.
Dr. Fowler also cited NAME guidelines for Homicide:
Homicide occurs when death results from a volitional act committed by another person to cause fear, harm, or death. Intent to cause death is a common element but is not required for classification as homicide. It is to be emphasized that the classification of Homicide for the purposes of death certification is a “neutral” term and neither indicates nor implies criminal intent, which remains a determination within the province of legal processes.
In other words, medical examiners don’t determine guilt.
Dr. Fowler discussed Floyd’s autopsy findings, which showed an enlarged heart. He said that a bigger heart needs more nutrients. If your heart is not getting what it needs, you will have chest pains, palpitations, and shortness of breath. Your body is telling you to slow down and rest, so your heart can replenish itself. If you don’t — or can’t — your heart will fail. The most common cause of an enlarged heart is high blood pressure. Floyd’s records indicated very high blood pressure, and his paraganglioma could also have raised it further.
Floyd already had narrowing in his coronary arteries, which meant that his heart got less oxygen than normal. Floyd was able to go about his daily life, but taking methamphetamine was dangerous, because it especially narrows arteries — even to the point that it can stop blood flow entirely. The doctor said adrenaline is also a vasoconstrictor (narrows blood vessels). Fighting the police led to an adrenaline rush, which caused stress on Floyd’s heart, and his paraganglioma tumor could have been secreting extra adrenaline.
Dr. Fowler said carbon monoxide could have contributed to Floyd’s death. None of the medical experts from the prosecution discussed this, nor was it mentioned on Floyd’s death certificate, but Dr. Fowler said Floyd’s head was at the rear of the vehicle, about a foot from the tailpipe. He did not suggest this was “full” carbon monoxide poisoning, but he did think it contributed to heart failure.
Car exhaust contains carbon monoxide, which decreases the blood’s ability to carry oxygen, and someone with heart disease will die at lower levels of carbon monoxide than a healthy person. The CDC says carbon monoxide can be dangerous, even if you’re outdoors. Carbon monoxide poisoning is diagnosed with a blood test, but Floyd’s blood was not tested for carbon monoxide.
The doctor cited a recent study from Poland, in which a taxi driver committed suicide by lying on the ground, outdoors, next to the exhaust pipe of his taxi. His level of carbon monoxide was high enough to be the exclusive cause of his death, even though his face was about a foot from the tailpipe. Dr. Fowler calculated that in seven minutes, the level of carbon monoxide in Floyd’s blood could have reached 10-18 percent.
The doctor explained that carbon monoxide changes the color of blood, and at high levels this is easy to see. Levels below 20 percent can still cause arrhythmia, but the color change would not have been easy to notice: “There are studies out there where as little as 6 percent saturation of carbon monoxide, in an individual who is exercising, with heart disease, will start causing arrhythmias.” The only way to eliminate carbon monoxide as a contributing factor in Floyd’s death would have been to test his blood, but no test was done. Dr. Fowler said the police were not affected by the exhaust because they were farther from the tailpipe, younger, and probably don’t have heart disease.
Dr. Fowler studied the autopsy photos and found it significant that all of Floyd’s injuries “were in areas where the [defendant’s] knee was not.” There were injuries to his face and wrists, but none to his back or neck. The doctor said Mr. Chauvin’s knee did not impair any of the vital structures of Floyd’s neck. He said that “speaks to the amount of force that was applied to Mr. Floyd . . . . It was not enough to bruise him.” He went on: “If you put 30-50 pounds of force with your knee, directly onto somebody, in my opinion, the chances of a subcutaneous hemorrhage [bruising] is very high.”
The prosecution’s theory is that George Floyd died of low oxygen, or hypoxia, because the officers restrained him in a way that prevented him from expanding his chest and getting enough air. The prosecution argued that holding Floyd face down led to “positional asphyxia.” In reply, Dr. Fowler cited a 2017 study that states, “Positional asphyxia, as the term is used in court today, is an interesting hypothesis unsupported by any experimental data.” He also mentioned studies that found that a healthy, face-down person can take up to 225 pounds on his back without showing signs of hypoxia.
Dr. Fowler said that low-oxygen symptoms are confusion, disorientation, appearance changes, difficulty speaking, and shortness of breath. Floyd did say he couldn’t breathe, but the doctor did not see the other symptoms when he examined videos. He said Floyd was “coherent and understandable until shortly before there was a sudden cessation of his movement.”
Prosecution witnesses said that they saw Floyd dying a “gradual” death, rather than the “sudden” death associated with a heart attack, but Dr. Fowler saw the opposite. He said that Floyd spoke coherently, then moved without speaking, then fell suddenly unconscious: “This was a sudden cardiac event.”
Mr. Nelson showed photos of Floyd in his car, right after being approached by police. A white pill is visible in his mouth. He noted that dissolved pills were found in the back of the squad car, which contained Fentanyl and methamphetamine, and they had Floyd’s saliva on them. The doctor said that Fentanyl is 80 times more powerful than morphine. It slows breathing, which reduces the ability to get oxygen into the blood. Floyd’s autopsy found Norfentanyl in his blood. The liver breaks Fentanyl down into Norfentanyl, so this means the Fentanyl had already been acting on Floyd.
Dr. David Fowler, forensic pathologist, testifies for the defense. He explains that fentanyl slows down respiration and decreases oxygen in the bloodstream. pic.twitter.com/vghFugY71s
— Alpha News (@AlphaNewsMN) April 14, 2021
The doctor summarized Floyd’s conditions: a vulnerable heart, narrow vessels, drugs that narrow arteries and slow breathing, and carbon monoxide exposure. “At some point, the heart exhausted its reserves of metabolic supply, and went into an arrhythmia and stopped pumping blood.” The cause of death was therefore, “Cardiac arrhythmia due to hypertensive and atherosclerotic heart disease during restraint.” Contributing causes were Fentanyl, methamphetamine, carbon monoxide, and paraganglioma.
Determining Floyd’s manner of death — the CDC category — was difficult. The carbon monoxide could be accidental, but someone was holding him there, so it could be homicide. Drug overdoses are usually considered accidental, but Floyd had serious diseases. However, this was a stressful situation in which Floyd was being restrained, and that suggests homicide. “All put together,” Dr. Fowler said, “I would fall back to undetermined.”
NAME’s guideline for an undetermined manner of death is: “A classification used when the information pointing to one manner of death is no more compelling that one or more other competing manners of death in thorough consideration of all available information.”
Prosecutor Jerry Blackwell, who is black, did cross-examination. He was disrespectful and so dripping with contempt that the judge called him over and appeared to tell him to tone it down. Mr. Blackwell suggested that Dr. Fowler was trying to “confuse the jury,” and he repeated this charge throughout his examination. He brought up the white substance that appeared in Floyd’s mouth in the photos. He displayed a photo of Floyd in Cup Foods, open-mouthed, with a wad of white gum in his mouth. Dr. Fowler conceded that he did not know for sure what was in Floyd’s mouth. On redirect, Mr. Nelson brought up the tests on the dissolved pills found in the squad car.
Mr. Blackwell went through a list of different kinds of medical specialists, asking Doctor Fowler if he was each of these. Dr. Fowler said no to all of them.
Mr. Blackwell said that the paraganglioma would be a problem if the tumor were secreting, but he pointed out that the medical examiner who identified it during the autopsy did not test to see if it was secreting. Dr. Fowler agreed, and said that the only way to find out is to do a blood test, but that would show only if there is constant secretion. A surge in secretion can be detected only with repeated urine tests, which can’t be done after death. Mr. Blackwell asked the doctor if Floyd had complained of a headache, a common symptom of a paraganglioma that is secreting. The doctor said he thought Floyd had, but was not sure. On redirect, Mr. Nelson showed video and asked if Floyd had said, “Everything hurts.” The doctor said he had.
Mr. Blackwell asked Dr. Fowler if any pills were found in Floyd’s stomach, adding that any pill in the car could not be in Floyd’s body. Dr. Fowler conceded that there were no pills in Floyd’s stomach. On redirect, Mr. Nelson had the doctor mention Floyd’s saliva on the partially dissolved pills. Testimony for the defense will continue.
There are two grounds on which the jury can acquit Mr. Chauvin: that his use of force was legal and reasonable, and/or that Floyd was so medically fragile that this was a substantial cause of his own death. Yesterday’s expert testimony for the defense was supposed to show that Mr. Chauvin’s use of force was legal and reasonable, but witness Barry Brodd took some damage on cross examination. This was a much better day for the defense.
Court started without the jury present. Derek Chauvin told Judge Peter Cahill that after consulting with his lawyer, he decided to invoke his Fifth Amendment privilege and not testify. The judge read a statement for Mr. Chauvin about what he will say to the jury when he informs them of this decision, and Mr. Chauvin approved the statement:
Defendant’s right not to testify: The state must convince you by evidence beyond a reasonable doubt, that the defendant is guilty of the crime charged. The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant had not testified in this case.
Prosecutor Jerry Blackwell told the judge that his team had “newly discovered evidence” about George Floyd’s blood gas levels and the state wanted to present a rebuttal to the carbon monoxide poisoning theory that was presented in court yesterday by the defense’s witness, Dr. David Fowler. Mr. Blackwell said the evidence was discovered last night by Dr. Andrew Baker, Hennepin County’s chief medical examiner, who conducted the autopsy on George Floyd. It had to do with the range of carboxyhemoglobin (carbon monoxide attached to a hemoglobin) in Floyd’s blood, a topic none of the prosecution’s expert witnesses had brought up.
No one requested carbon dioxide readings at the hospital on the day George Floyd died, because they did not think it was important. However, Dr. Baker told the prosecution that there was something in the computer records at the hospital that would show a test result that was now relevant. Mr. Chauvin’s lawyer, Eric Nelson, told the judge that he got this information at 7:53 a.m. and he could not reach his witness, Dr. Fowler, who was on a plane. Mr. Nelson said the state has had these blood samples all along, and it had plenty of time to present this information. He said it was “incredibly prejudicial” to present this information now.
Dr. Fowler had not testified that carbon monoxide poisoning was George Floyd’s primary cause of death, but he listed it as a contributing factor and said that the city should have tested Mr. Floyd’s carbon monoxide levels.
The judge was not happy. He said that if data on Floyd’s carboxyhemoglobin levels had been presented earlier, Dr. Fowler would not have testified as he did. The judge also criticized the hospital: “I’m not claiming any bad faith on the state’s part, but it seems odd that Hennepin County Medical Center, when they’re asked to turn over all their records, that they don’t include records that maybe are just buried a little deeper. Their response to the subpoena was probably insufficient . . . in the event this happens again, they will supply all of the information they have.”
Dr. Tobin will not be allowed to testify as to those lab results. . . . If he even hints that there are test results that the jury has not heard about, it’s going to be a mistrial. Pure and simple. This late disclosure is not the way we should be operating here . . . . Dr. Tobin may testify as to carbon monoxide, if he sticks to the environmental factors, and as a pulmonologist. Looking at the videos, for example, and seeing Mr. Floyd’s location and not knowing whether the vehicle is even on or not . . . .That is fine. But nothing about these lab test results that were just disclosed, eight a.m. this morning, after the defense expert is done.
After the break, the jury came in and Dr. Tobin was sworn in for a second time. Mr. Blackwell asked the doctor if he heard yesterday’s testimony, and the doctor said that he had. The jury was shown a slide from yesterday’s PowerPoint presentation by Dr. Fowler, and their attention was directed at the sentence, “In 7 minutes, Mr. Floyd’s Carboxyhemoglobin could have increased by 10-18%.” Mr. Blackwell asked the doctor if he agreed with the statement.
Dr. Tobin explained that carboxyhemoglobin is when carbon monoxide combines with hemoglobin in blood. “When the carbon monoxide binds to the hemoglobin, it displaces the oxygen off the hemoglobin. You need the oxygen on the hemoglobin.” He added that he did not believe Dr. Fowler’s statement had been reliable. Mr. Blackwell asked him why, and Dr. Tobin said, “I base it on the arterial blood gas that was obtained when Mr. Floyd was in Hennepin County.”
There was an immediate objection and sidebar. This could have been enough for a mistrial. Dr. Tobin said exactly what the judge said he shouldn’t. But the judge did not declare a mistrial. Dr. Tobin told the jury that Floyd had a needle stuck in his wrist and blood gas was measured. This measurement included how much of Floyd’s hemoglobin was saturated with oxygen. Floyd’s hemoglobin was 98 percent oxygen-saturated, which means there could have only been 2 percent carboxyhemoglobin, which would be in the normal range.
Dr. Tobin was excused and both sides rested. The judge released the jurors for the weekend, reminding them to avoid all media. He told them closing arguments would be on Monday and that since they would be sequestered for deliberations they should pack suitcases. The judge said that they should plan for a long time, but hope for a short time. They could take one day to deliberate, or a week. He told them that they would have laptops in the deliberation room, so they could review any of the exhibits. Then Judge Cahill adjourned for a three-day weekend.
Over the weekend, before closing arguments, California Congresswoman Maxine Waters flew to Minneapolis to talk to protesters at the courthouse.
“We’ve got to not only stay in the street, but we’ve got to fight for justice. But I am very hopeful and I hope that we’re going to get a verdict that will say, ‘Guilty. Guilty, guilty’. . . . I don’t know whether it’s in the first degree, but as far as I’m concerned, it’s first-degree murder . . . . We’ve got to get more confrontational. We’ve got to make sure that they know that we mean business.”
Derek Chauvin is not even charged with first-degree murder. All three counts are variations of unintentional homicide.
Yesterday, 329 days since George Floyd died, both sides made closing arguments and the jury began deliberations. Judge Peter Cahill started by explaining the law to the jury, saying that it must follow the rule of law even if it thinks the law should be different. He reminded the jury that the defendant is presumed innocent until proven guilty beyond a reasonable doubt; he does not have to prove himself innocent.
The judge defined legal terms and went into detail about what the prosecution needs to prove for Mr. Chauvin to be found guilty of each of the charges.
Prosecutor Steve Schleicher began his closing argument by reviewing witness statements about Floyd’s relationship with his family, and showed photos from his life. Mr. Schleicher also referred to “superhuman strength,” one of the symptoms of excited delirium, a condition Mr. Chauvin and other MPD officers were trained to recognize. One of the other officers mentioned excited delirium while they were restraining Floyd. “There was no superhuman strength that day.” Mr. Schliecher said, “There was no superhuman strength because there’s no such thing as a superhuman. Those exist in comic books.”
Mr. Schleicher noted that Floyd had called the defendant “Mr. Officer,” and said that Floyd “pleaded with ‘Mr. Officer.’”
Floyd died with no familiar face to say his final words to, and his final words — “Please, I can’t breathe” — were addressed to Mr. Chauvin. “He asked for help with his very last breath, but Mr. Officer did not help,” he said. “The defendant did not help; he stayed on top of him, continued to push him down, to grind his knees, to twist his fingers into the handcuffs that bound him, looking at him, staring him down at times, and horrified the bystanders who gathered and watched this unfold.”
Mr. Schleicher said he had conducted a “pro-police prosecution,” and was not attacking the noble profession of law enforcement. He called Mr. Chauvin’s actions a “shocking display of abuse of police power,” but added, “This case is called The State of Minnesota versus Derek Chauvin. This case is not called The State of Minnesota versus The Police.”
The prosecutor tried to get inside Derek Chauvin’s mind, showing Exhibit 17, a screenshot of Mr. Chauvin taken by one of the bystanders. He called attention to Mr. Chauvin’s body language and suggested that his pride would not let bystanders tell him what to do. Mr. Chauvin “chose pride over policing.” Recalling how 61-year-old witness Charles McMillian told Floyd that he “couldn’t win,” Mr. Schleicher told the jury, “The defendant was trying to win. . . . He was trying to win, and George Floyd paid with his life.”
Mr. Schleicher went through the body camera footage step by step, beginning with the point of view from Mr. Chauvin’s own camera, when Officers Lane and Kueng were trying to get Floyd into the squad car. “Why was is necessary to shove him in the car?” Mr. Schleicher asked, adding that Police Chief Medaria Arradondo had testified that it is rare to arrest people for counterfeiting.
Showing a slide of the definition of “proof beyond a reasonable doubt,” Mr. Schleicher told the jury that the state does not need to prove its case beyond all doubt, and that it did not need to accept the defense’s “nonsense.”
The prosecutor explained how the case met the requirements for the jury to convict on each charge, and showed a photo of Mr. Chauvin with “9:29” superimposed over him, and a red circle around the image. After hearing Mr. Schleicher repeat “nine minutes and twenty-nine seconds” over and over, this image almost seemed like an advertising logo. By the end of Mr. Schleicher’s closing, he had uttered the phrase “nine minutes and twenty-nine seconds” 17 times.
The prosecution used audio-only clips a few times, and one was particularly deceptive. Floyd very clearly says, “My stomach hurts; my dick hurts,” but the audio was manipulated so that the word “dick” is barely intelligible. The prosecution then misquoted Floyd several times, claiming that he had instead said, “My neck hurts” and “My back hurts.”
Mr. Schleicher concluded with: “It’s what you felt in your gut, it’s what you felt in your heart. This was not policing. This was murder.”
Derek Chauvin took off his face mask in front of the jurors for the first time as defense lawyer Eric Nelson began his closing argument. “You start with the proposition that Mr. Chauvin is innocent of these charges,” Mr. Nelson said. “The state has to advance substantial evidence to convince you that the only doubts that are remaining are unreasonable doubts.”
Throughout the trial, Mr. Nelson stressed that the jury would need to consider the “totality of the circumstances,” and he derided the prosecution’s use of “little snippets . . . a screenshot here, a screenshot there.”
He said, “Lawyers like to present evidence that favors them, but we have to be intellectually honest about the evidence.” He then explained that Dr. David Fowler, a forensic pathologist who testified for the defense, said that carbon monoxide could have contributed to George Floyd’s oxygen deprivation. The next day, the state brought back one of its expert witnesses to tell the jury that this was not possible because Floyd’s oxygen saturation had been 98 percent. (Blood oxygen levels below 80 percent may hurt the brain and heart; the normal range is 95 – 100 percent.) Mr. Nelson said that he could then have stood up and asked, “How could Floyd have been asphyxiated [a key part of the prosecution case], when he had a 98 percent oxygen level?” but that would not have been honest. Mr. Nelson told the jury that Floyd’s blood oxygen level was 98 percent because paramedics and the ER doctor oxygenated his blood when they tried to save him.
“You also can’t prove that there was no carbon monoxide in Floyd’s blood because of this 98 percent figure,” Mr. Nelson said. “The state has failed to meet its burden of proof beyond a reasonable doubt.”
Mr. Nelson later showed how the prosecution, and particularly its expert witness, Dr. Martin Tobin, were biased. The prosecution had shown a screenshot of Floyd’s knuckle against the wheel of the squad car, and Dr. Tobin said that Floyd scraped his knuckle as he used it to push himself up, in order to expand his chest and breathe. Mr. Nelson played the video of that moment, pointing out the time stamp. Floyd’s knuckles were against the car tire when the officers had him in the side-recovery position, shortly after he was on the ground. This position would not have prevented Floyd from expanding his chest.
Mr. Nelson also played the video of the split-second moment when Mr. Chauvin’s toe was off the ground. The prosecution had used a still photo of this moment to hide the fact that it had been so brief. Mr. Nelson told the jury: “You cannot take a single frame and draw conclusions. You have to analyze the totality . . . . Do not let yourself be misled by a single still-frame image.”
The defense’s closing argument revolved around two points: Whether Mr. Chauvin’s actions were an authorized use of force and the cause of George Floyd’s death. If the jury finds that Mr. Chauvin’s actions were authorized, then no crime would was committed. During jury instructions in the morning, Judge Cahill read the following:
No crime is committed if a police officer’s actions were justified by the police officer’s use of reasonable force in the line of duty, in affecting a lawful arrest or preventing an escape from custody. The kind and degree of force the police officer may lawfully use in executing his duty is limited by what a reasonable police officer in the same situation would deem to be necessary. Any use of force beyond that is not reasonable. To determine if the actions of the police officer were reasonable, you must look at those facts which a reasonable officer in the same situation would have known at the precise moment that the officer acted with force. You must decide whether the officer’s actions were objectively reasonable in light of the totality of the facts and circumstances confronting the officer, and without regard to the officer’s own subjective state of mind or intentions or motivations. The defendant is not guilty of a crime if he used force as authorized by law. To prove guilt, the state must prove beyond a reasonable doubt that the defendant’s use of force was not authorized by law.
Mr. Nelson spent a lot of time showing body camera footage to get the jury to see things from Mr. Chauvin’s point of view. Mr. Nelson pointed out that we didn’t have Mr. Chauvin’s own body camera footage because Floyd had knocked both the camera and Mr. Chauvin’s badge off as he fought to stay out of the police car. The video evidence shows that one of the other officers nearly lost his wedding ring.
The defense had proposed all along that George Floyd died of a heart attack. Mr. Nelson reminded the jury that the autopsy contained no report of bruising on Floyd’s neck, back, spinal column, or hypopharynx. He also said that the medical examiner would not have mentioned Floyd’s diseased heart or the presence of drugs in Floyd’s blood if he had not believed that these things contributed to Floyd’s death.
Mr. Nelson went through a timeline of Floyd’s last moments, noting that Floyd went limp only 39 seconds after his last words. Mr. Nelson said that this is inconsistent with low oxygen or strangulation, because people can hold their breaths for 39 seconds without passing out. He said 66 seconds passed between Floyd’s last words and going limp, suggesting a sudden cardiac arrhythmia.
Mr. Nelson concluded: “Human beings make decisions in highly stressful situations that they believe to be right in the very moment it is occurring . . . . There are lots of what-ifs.”
Prosecutor Jerry Blackwell’s long rebuttal repeated much of what Mr. Schleicher had already said. Mr. Blackwell also repeated several times that this was such a commonsense case that a nine-year-old bystander understood it. As he said this, he showed a photo of the girl.
Mr. Blackwell took every chance to paint Mr. Nelson as a liar, making comments such as: “You didn’t get the whole truth.” “The facts have been altered.” “You were told that homicide is a medical term. That’s not what Dr. Baker said.” Mr. Nelson objected when Mr. Blackwell accused him of “shading the truth.”
Mr. Blackwell overused the word “story”:
When the case started, I think you were all asked and talked to about there being two sides to every story. Two sides to every story. One of the most dangerous things, I think, about the process of truth because it suggests that everything is simply reduced to a story. And if it is a story, that means there can be multiple sides to a story and there can never be a truth. Or a reality. Except that what we’re about here, is getting to the truth and not simply stories.
The judge told him to stop using the word “story,” but he used it again several times.
Mr. Blackwell ended by referring to Floyd’s enlarged heart, saying that the defense wanted the jury to believe that Floyd had died because his heart was too big. “The reason Mr. Floyd is dead,” Mr. Blackwell concluded, “is because Mr. Chauvin’s heart is too small.”
Judge Cahill gave the jury final instructions, and warned against implicit or unconscious biases. “If the people involved in this case were from different backgrounds, for example, richer or poorer, more or less educated, older or younger, or of a different gender, gender identity, race, religion or sexual orientation, would you still view them and the evidence the same way?” The judge also said jurors should help each other to resist evaluating the case in a biased way.
He warned the jury not to let public opinion influence their decision. “You must not consider any consequences or penalties that may follow from your decision.”
After the jury left the courtroom, Judge Cahill saw that Mr. Nelson wanted to speak, and guessed that he wanted to talk about the objections he had made when the prosecution spoke insultingly about him. The judge told Mr. Nelson that he had addressed that properly in front of the jury.
Mr. Nelson said, “I do believe that it constitutes prosecutorial misconduct and is potentially basis for a mistrial.” “I think the word “nonsense” is what you’re talking about originally?” Judge Cahill asked. Mr. Nelson replied:
Originally, your honor. But during the rebuttal, there were implications that we were ‘shading.’ ‘Creating Halloween stories’ was another example. These were ‘stories,’ that was a repeated comment. That we ‘misrepresented facts’ and ‘put words into Dr. Baker’s mouth,’ that we made several statements that they put forth as ‘stories.’ After the court instructed him to stop using the word ‘stories,’ he clarified that it’s ‘just fabricated facts.’
Mr. Nelson cited State vs. McDaniel: “The prosecutor must not act as a zealous advocate for criminal punishment but as a rep of the people to seek justice.” Judge Cahill said he would not make a finding of prosecutorial misconduct.
Mr. Nelson then pointed out that before coming into court for closing arguments, a Member of Congress “made threats against the sanctity of the jury process . . . . threatening and intimidating the jury that if there was not a guilty verdict there would be further problems.”
Mr. Nelson told the judge that he had recommended that the jury be sequestered from the beginning, and he thought there was a high probability that the jurors heard about those threats. Mr. Nelson mentioned that two fictional television shows in the past week had been based on this case and added. “Now that we have US representatives threatening acts of violence in relation to this particular case, it’s mind-boggling.”
Judge Cahill mentioned Maxine Waters by named and told Mr. Nelson that she may have given him something to have this verdict overturned on appeal:
I’m aware that Congresswoman Waters was talking specifically about this trial, and about the unacceptability of anything less than a murder conviction, and talk about being confrontational. . . . This goes back to what I’ve been saying from the beginning. I wish elected officials would stop talking about this case, especially in a manner that is disrespectful to the rule of law and to the judicial branch and our function. I think if they want to give their opinions, they should do so . . . in a manner that is consistent with their oath to the Constitution to respect a co-equal branch of government. Their failure to do so is abhorrent.
Nevertheless, Judge Cahill said he did not think Maxine Waters’ comments would prejudice the jury. The jury is sequestered during deliberations.