Andrew Branca: Chauvin Trial Day 13 Wrap-Up - CCW Safe National | CCW Safe Weapon Liability | CCW Safe Defense Attorneys
Andrew Branca: Chauvin Trial Day 13 Wrap-Up

Posted By: Justin Collett

Andrew's commentary and opinions do not reflect or represent CCW Safe. They are his own and we are presenting the coverage because this trial could be of interest to our members and to generate thought and discussion.  

Chauvin Trial Day 13 Wrap-Up: Solid Day for Defense With Forensic Expert Witness

Blackwell scored no major points, hit with “My Cousin Vinny”-style response

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense.


Overview


Today saw the testimony of only one witness, but it was a witness of great importance to the defense, and therefore one whose testimony the state would perceive as important to damage. 


This was the defense medical expert witness Dr. David Fowler, a retired forensic pathologist.


To not bury the lead, Dr. Fowler did what the defense needed done today, and did it well. That’s not to say his performance was perfect—he took a few hits off Prosecutor Jerry Blackwell during cross-examination, and could have done better deflecting some of those attacks.


At the same time, however, Blackwell’s rather over the top cross-examination of Fowler was initially too aggressive for Judge Cahill’s liking, resulting in a rapid sidebar and a more restrained Blackwell moments later, and Blackwell’s resort to snark led him to overreach several times, providing opportunities for defense counter-attack that defense counsel Eric Nelson did not pass up.


So, overall, a good day for the defense today, when they very much needed one, especially after the weak performance of defense expert witness Barry Brodd yesterday.


I’ll dive into the testimony of Dr. Fowler in some detail in a moment, but first let me touch upon a couple of housekeeping matters that were addressed this morning prior to the jury being brought into the court room.


First, the defense finally made its motion for acquittal, the prosecution argued against that motion, and Judge Cahill denied the motion. This was all entirely predictable. 


The legal standard for acquittal that Cahill was obliged to apply was to assume that everything the state claimed was 100% true, and then decide if a reasonable jury could possible arrive at guilty verdict under those circumstances.   


Unless the prosecution is entirely inept—and this one is not—or the evidence was unambiguously lacking on a required element of a charged crime—and the prosecution made sure that wasn’t allowed to occur—there is always at least some evidence for a jury to consider. 


Once that’s the case, and we are required to view that evidence not impartially but in the light most favorable to the prosecution, a guilty verdict is always at least theoretically possible.


So, that took care for the motion for acquittal, as expected.


The next housekeeping involved Morries Hall, the male passenger in Floyd’s Mercedes SUV at the time of his in-custody death on May 25, 2020, who is also reported to be a drug dealer and who is currently in jail with his own legal challenges.


The defense had originally planned to call Hall as a witness in this case, focused particularly on Floyd’s drug use and intoxicated behavior when officers first approached the Mercedes SUV. 


Hall eventually realized, however, that he was potentially on the hook for third-degree murder over Floyd’s apparent drug overdose death, and through his public defender he informed the court that if called to testify he would plead the Fifth Amendment.


There were various arguments made at various times about the extent to which it might be possible to have the defense subpoena Hall into this trial to testify, but in the end that was all resolved this morning.


Hall asserted a blanket 5th Amendment privilege to any and all questions he might be asked having anything to do with George Floyd on May 25, 2020, Judge Cahill acknowledged that privilege, and thus expired any hope the defense might have had to get Hall on the witness stand.


Frankly, I’m not sure it really matters that much. Given the toxicology results showing fentanyl and meth in Floyd’s system, the pills coated in Floyd’s saliva found in the patrol car, the testimony of the Cup Foods clerk that Floyd appeared “high,” and the testimony of female SUV passenger and Floyd ex-girlfriend Shawanda Hill of Floyd apparently succumbing to a fentanyl overdose while in the vehicle, I’m not sure how much more Morries Hall would have added to an unambiguous narrative of Floyd being intoxicated.


In any case, that took care any questions over Hall’s assertion of his 5th Amendment privilege and whether he would testify in the Chauvin trial—he would not.


Defense Expert Witness Dr. David Fowler, Forensic Pathologist


As already noted above, Dr. Fowler was a very solid expert witness for the defense today, and generally presented as extremely experienced and competent.  His South African accent probably didn’t hurt, either. Despite the accent, Fowler had worked as a forensic pathologist for a couple of decades, primarily in various senior medical examiner type roles for the state of Maryland.


Before we dive in further, recall that the prosecution really has to prove two distinct arguments in order to win a conviction on the legal merits in this case.


First, they have to prove beyond a reasonable doubt that Chauvin’s conduct was a substantial contributing factor in Floyd’s death. 


That alone, however, is not enough. They must also prove beyond a reasonable doubt that Chauvin’s use of force was not legally justified.  A justified use of force that even directly caused Floyd’s death would not be criminal conduct.


Yesterday’s testimony by defense use-of-force expert witness Barry Brodd was intended to establish reasonable doubt on the justified use of force question, and that didn’t go particularly well, as we noted here:  Chauvin Trial Day 12 Wrap-Up: Defense Use-of-Force Expert Witness Falls Short


Today’s testimony by Dr. Fowler was intended to establish reasonable doubt that Chauvin’s conduct was a substantial contributor to Floyd’s death. As noted, Fowler did a reasonably good job today. Whether it was sufficient to the needs of the defense, ultimately only the jury can decide.


Fowler Direct Questioning


As is always the case with expert witnesses on direct, the first 20 minutes or so were spent by defense counsel Eric Nelson stepping through Fowler’s education, experience, publications, professional associations, and all the other facets of his career that imbue him with the necessary authority and credibility to serve effectively as an expert witness.


One interesting facet of Fowler’s testimony is that although currently retired from his full-time jobs, he apparently consults for a private enterprise panel of various medical experts.  My sense was that this was in effect a business designed to provide high-end scientific consultancy to the legal community. 


This arrangement also allows any single member of the business to involve others with distinct scientific expertise to inform their own scientific analysis, providing a much broader base of scientific expertise than any individual was likely to possess.


Now with the defense presenting its case in chief, the mission for defense counsel Nelson is to establish reasonable doubt on either of those arguments.  That is, establish either a reasonable doubt that Chauvin’s use of force was unlawful, or establish a reasonable doubt that Chauvin’s conduct was a substantial contributor to Floyd’s death.


As one should expect from a retained expert witness, Dr Fowler was prepared to say the magic words that the defense needed said, in the context of having formed an opinion, to a reasonable degree of professional certainty, as to the cause and manner of George Floyd’s death. 


And that opinion is:


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


Contributory conditions that led to this fatal outcome included Floyd’s existing heart disease (substantial coronary artery occlusion, and pathological hypertension resulting in an enlarged heart), fentanyl and methamphetamine toxicity, an existing paraganglioma, and another factor mentioned for the first time today, exposure to carbon monoxide from the exhaust of squad car 320.


In his direct questioning of Fowler defense counsel Eric Nelson touched upon a broad array of issues where the prosecution during its case in chief had raised apparent vulnerabilities for the defense.


For example, the state had made frequent reference to the death certificate citing the manner of death as having been “homicide.” 


Most of us will recognize that the use of the word “homicide” on a death certificate has solely medical consequences and is not a legal finding of any sort.  Indeed, even in a legal context a homicide is not always a crime.


There is always the risk, however, that a jury will apply the lawman’s meaning of “homicide” to mean “unlawful killing,” and Nelson took steps to address this. 


First, he reminded the jury of the medical versus legal application of homicide with respect to the death certificate. He also had Dr. Fowler step through the various components of a death certificate to clarify where an actual cause of death was being asserted, and by what means.


Nelson also had Fowler step through the five options for manner of death—homicide, suicide, accident, natural, and undetermined—to which he would circle back later.


The real take home message in all of this was that Fowler agreed that low oxygen played an important role in Floyd’s death—but it was the manner in which that low oxygen state was achieved that made the difference in this case.


More specifically, the state was essentially arguing that it was the subdual restraint by the officers upon Floyd that induced positional asphyxia, a low oxygen state, and a consequent fatal arrythmia in Floyd’s heart.


Fowler’s view, however, was that it was not a profound low oxygen state induced by the police via subdual restraint and positional asphyxia that caused Floyd’s heart to stop, but rather that it was Floyd’s exceptionally fragile physiological condition—a condition unknowable to the arresting officers—that made his heart exceptionally vulnerable to even the modest shortfall in oxygen caused by Floyd’s decision to fight arrest, resulting in the cardiac arrest.


According to the defense narrative it was, in effect, Floyd’s own physiological fragility that killed him when he chose to subject himself to the justified use of force by police officers compelling his compliance with lawful arrest, including his forcible 10-minute struggle with multiple police officers and subsequent restraint. 


This fragile physiological condition was the result, again, of Floyd’s severe coronary artery occlusion, his pathological hypertension resulting in an enlarged heart, his life-long abuse of fentanyl and methamphetamine, not to mention smoking both marijuana and cigarettes, his paraganglioma tumor, and even his acute exposure to carbon monoxide while being restrained by police.


As one might expect, Nelson had Fowler step through the various facets of this narrative of Floyd’s “death by fragile physiology” in considerable detail, touching upon every major component of that narrative in a well-informed and expert manner, delivered in a tone of quiet competence.


This was a sharp contrast from the expert witness testimony of use-of-force expert Barry Brodd, whose narrative on defense was rather scattershot, not at all as comprehensive as the defense needed it to be and left many points of vulnerability for attack by the prosecution on cross-examination. 


Again, I’m not sure how much of that mess was the fault of Brodd and how much of Nelson, but I am sure that it is Chauvin who is on the hook for that misstep, either way.


I won’t touch upon every single facet of Fowler’s scientific testimony in the detail given at trial—I’ve provided the videos of this testimony below for that level of detail. 


Here I’ll just note that Nelson had Fowler explain why Floyd could have died of a cardiac arrest even in the absence of apparent damage to heart cell; how a sudden arrythmia would have resulted in a low oxygen condition; how Floyd’s enlarged heart induced by his pathological hypertension would have made him particularly vulnerable to even a modest drop-off of oxygen and other resources; how Floyd’s profound coronary artery occlusion made him even more vulnerable in this manner; how Floyd’s heart disease primed him for a fatal arrythmia; and perhaps an abrupt release of adrenaline from Floyd’s paraganglioma found in his lower abdomen.


All of this fragile physiology was further primed for catastrophic failure by various environmental factors, including Floyd’s fentanyl toxicity, which reduced respiration and thus desperately needed oxygen; Floyd’s methamphetamine use, which increased the heart’s demand for resources even as it reduced his body’s ability to deliver those resources, as well as fostering failure of Floyd’s biological “pacemaker” that prevents fatal arrythmia; the adrenaline released by the “fight or flight” response triggered by Floyd’s decision to physically resist arrest; and perhaps even acute exposure to carbon monoxide being exhausted from squad car 320, whose exhaust pipe was only about a foot or so from Floyd’s face, which would have bound up a substantial portion of Floyd’s hemoglobin and further reduced his oxygen carrying capacity.


Nelson also had Fowler address the lack of any indication of physical injury, not even bruising much less broken bones or cervical damage, to Floyd’s neck and back, when in Fowler’s lengthy experience in working with such cases signs of injury were common.  Nelson also took the same approach to the state’s arguments that it was pressure on Floyd’s hypopharynx that caused his death—Fowler had never seen that occur and found no reference in the literature to it having ever occurred, as a result of external pressure (as opposed to some ingested obstruction, such as a chunk of food, or an internal tumor).


Nelson also had Fowler speak authoritatively with respect to a number of studies of positional asphyxia that substantially undermined the state narrative that this was a clearly deadly restraint procedure that any reasonable officer should have known created a lethal danger to a suspect. 


Indeed, the studies indicated that even lengthy periods of subdual prone restraint while subject to weights of as much as 225 pounds showed little tendency to induce hypoxia in otherwise healthy subjects.


As we’ll see, this part of Fowler’s direct testimony would prove particular offensive to the state, as revealed during cross-examination.


Obviously, all of this presents quite a different image of Floyd’s death than the “blood choke” described by MMA “expert” Donald Williams, the external or internal respiratory choke claimed by other state witness, the forcible compression of Floyds respiratory physiology claimed by still others, or any of the other state narratives of how the conduct of Chauvin or the other officers was a substantial, rather than lawful and incidental, contributor to Floyd’s death.


In short, as one should expect, there was little drama in the direct questioning of Dr. Fowler, which you can view here:



Fowler Cross-Examination


The cross-examination of Dr. Fowler was conducted by Prosecutor Jerry Blackwell, whose performance here is perhaps best described as contemptuous, argumentative, full of snark, and misleading to the point of arguably qualifying as propagating outright false narratives to the jury.


Before I go on, I do feel obliged to note that as negative as that description of Blackwell’s performance is, that does not mean that it was ineffective. Many prosecutors intentionally adopt such aggressive cross-examination precisely because it works. 


It can throw the witness off-balance and badger the witness into passively acceding to the angry attorney’s portrayal of the testimony, if only to make getting off the witness stand come sooner than might otherwise be the case.


Please, just make it stop! I’m afraid we saw a bit of this yesterday during Prosecutor Schleicher’s equally aggressive cross-examination of defense use-of-force expert witness Barry Brodd.


And, it must be said, there was a bit of that reaction from Fowler, as well.  When I write that Fowler did a solid job, but not a perfect job, I’m referring those portions of his cross-examination where he appeared off-balance and malleable to the pressures being applied Blackwell.


Blackwell began his cross-examination on fire, with contempt dripping from his voice, and engaging Fowler in a manner that to this small-town attorney was outrageously disrespectful and argumentative. 


This aggressive approach to Fowler began with a line of questions that superficially asked Fowler how an expert should reasonably approach a case, but which were obviously intended to suggest to the jury that Fowler had approached the case in an entirely unreasonable manner.


You would agree that an expert witness should be objective?  Yes. Fair? Yes. Impartial? Yes. You agree that you should be thorough? Yes. In order words, that you should do your [damned!] homework before coming into court? Yes. [AFB: Emphasis added.]


An expert shouldn’t jump to conclusions? Yes. Shouldn’t connect facts in a way that’s biased? Yes. Shouldn’t cherry pick facts? Yes. Shouldn’t intentionally confuse the jury? Yes.


I was about ready for Blackwell to ask Fowler to agree that an expert witness in a trial shouldn’t fornicate with barn animals.


By this point, however, Judge Cahill, who has rigidly enforced at least nominal signs of respect among the parties and towards witnesses while in his court room, had had enough of Blackwell’s argumentative conduct.  He called a brief sidebar, and it was a somewhat subdued Blackwell who returned to continue his cross-examination of Fowler.


If the contempt had been ratcheted down, however, Blackwell cranked the snark knob up to 11.


He was particularly offended by the sudden references by the defense to the possibility that carbon monoxide from squad 320’s exhaust was a contributing factor in Floyd’s death. Frankly, I’m not sure why the state would be surprised by this angle, as it was covered in Fowler’s expert report delivered and shared with the prosecution way back in February.


Blackwell asked if it was true that there was nothing about CO in the autopsy report? Well, everyone knew that, because medical examiner Baker hadn’t considered the issue during autopsy.


All these EPA and CDC and California car exhaust studies and regulations about carbon monoxide that you cite here in court—you’ve never actually been an industrial hygienist, have you, Dr. Fowler?  He had not ever been, and frankly I’m not at all sure that Blackwell didn’t just make that job title up out of thin air.


Can you tell the jury exactly what level of CO Floyd had in his system when he died? Well, naturally not, because the state of Minnesota had never bothered to look.


Blackwell also began to start tripping himself up in his cross of Fowler.


Do you even know if the squad car was running?  There were indications it was running, such as moisture dripping from the exhaust.  So ,you just assumed it was running? (I mean, we all know that if you assume, you make an “ass” out of “u” and “me,” right?). No, answered Fowler, I didn’t assume anything. I made an inference from the evidence.


Ouch.


Have you ever even seen this squad car in real life?  Well, no, answered Fowler.


Sensing the possibility of a kill shot here, Blackwell jumped.  Unfortunately for Blackwell, it was his turn to do the “step on the rake” routine.


Do you even know the make and model of this vehicle, he asked in a voice of outrage, certain that Fowler would not know, and would therefore have profoundly undercut his credibility.


Yes, answered Fowler—it was a Ford Explorer, Police Interceptor Model.


Well, fine, but do you even know what exhaust arrangement that vehicle has?  Again, in a tone of moral outrage, and with the confidence that Fowler would know nothing of the sort.


I do, answered Fowler—it has a four-pipe exhaust arrangement, with two exhaust pipes at each side of the rear of the vehicle.


Double-ouch.   I mean, man, that’s right out of the movie “My Cousin Vinny” (by the way, the best legal movie ever made, in my humble opinion).


Blackwell stepped back to asking Fowler for data he knew very well the consulting pathologist wouldn’t have. 


Do you have actual data on the carbon monoxide levels in Floyd’s breathing zone while he was in subdual restraint and neck compression?  Of course not, nobody knows, it was never measured. 


Incidentally, Blackwell worked hard to repeat the phrases “subdual restraint and neck compression” and “9 minutes and 29 seconds” as frequently as possible during his cross-examination of Fowler. Apparently, these are his equivalent of Johnnie Cochrane’s “if the glove don’t fit, you must acquit” during the 1995 double-murder trial of OJ Simpson.


You might LOL at that, but in fact such repetition is a proven method of persuasion. 


In any case, I recommend you prepare yourself to hear those phrases repeated frequently during closing arguments, assuming Blackwell participates in closing arguments—and I’d be shocked if he did not, given the racial overtones to this trial.


Blackwell’s asking for data or findings he knew very well did not exist, and which Fowler had never claimed to exist, was a common theme throughout his cross-examination of the pathologist.


Agree that Dr. Baker, the medical examiner, found no evidence of carbon dioxide poisoning as a cause of Floyd’s death? Well, first of all Fowler didn’t claim CO poisoning as a substantial cause of death, but merely another among many complicating factors that may have contributed to Floyd’s death.  Second, Baker didn’t report any CO findings, because he never looked, which is a different matter than CO not playing a possible role.


Blackwell also asked a great many questions that appeared intended to cast doubt as to whether Floyd had self-ingested fentanyl/meth tablets when approached by police. 


During direct by Nelson, Dr. Fowler had been asked if he’d spotted a small white object in still photos of Floyd as he was held at gunpoint by Officer Lane while still in the driver’s seat of his SUV.  Fowler did make such an identification.


Now Blackwell showed a short video from inside Cup Foods of Floyd holding a banana. Can’t you see him chewing food in that video?  Fowler agreed that Floyd’s mouth was moving in a chewing type manner, but I don’t know why, I personally didn’t see anything of the sort.  What I did see was Floyd staggering visibly, but that went unmentioned in court today.


How could you possibly know the white object in Floyd’s mouth while seated in the car wasn’t food, rather than a pill.


Well, answered Fowler, I never said it was a pill. I merely said it was a white substance, and that was quite intentional.


Indeed, the only person to explicitly label the white object a pill was Blackwell himself, another misstep on his part.


Another consistent behavior by Blackwell was to preface his snarky questions with the phrase, “In order to avoid confusing the jury, …”. I saw a number of comments in today’s live post asking why he kept repeating this phrase.


The reason is that he likely believed it would gain him more freedom of action in asking questions that the court might otherwise find objectionable.  This is because the reason expert witnesses are allowed to testify about their opinions, which normal fact witnesses are not allowed to do, is because the expert’s role in the trial is to help the jury understand issues that would not be understood but for the expert’s opinion.


That is, to help the jury avoid confusion.


So, if Blackwell could cloak his snarky question as being intended to meet that core purpose of an expert witness, by prefacing it as being asked in the interests of avoiding confusion of the jury, perhaps Cahill would be more inclined to let the question go.


It’s much akin to the scene in the original Star Wars movie where Obi Wan Kenobi waves a hand slightly in front of two Mos Eisley stormtroopers and informs them that these are not the droids they are looking for.


Yet another rhetorical trick used by Blackwell was to purport to impeach Dr. Fowler’s direct testimony by reading extensively from various textbooks, studies, and even an old affidavit from a prominent scientist on the subject of positional asphyxiation, and from a deposition of Dr. Fowler himself from an unrelated legal proceeding. 


I have a couple of observations on this “trick” by Blackwell. First, to my mind Blackwell’s conduct here grossly exceeded reasonable attempts to impeach Fowler, and actually began Blackwell himself offering testimony in front of the jury. And that is not supposed to be allowed.


Second, nearly every instance this “trick” came back to bite Blackwell on the buttocks. Why? Because on re-direct of Dr. Fowler by Nelson it was revealed that Blackwell had read selected portions out of context, mischaracterized other readings, and sometimes skipped portions that, when read aloud by Nelson, effectively reversed the meaning claimed by Blackwell when read by him on cross.


For example, on direct Fowler had testified that a noted scientist who had been very prominent about the dangers of positional asphyxia had ultimately retracted his concerns after conducting a variety of clinical studies on the subject.


On cross-examination, Blackwell read from an affidavit of that same scientist, in which he stated that he remained concerned about positional asphyxiation.  Proof that Fowler was wrong, or untruthful, about the claimed retraction of concern?


Not so much.  On re-direct by Nelson it turned out that Blackwell had skipped some important content in the affidavit—the positional asphyxia that the scientist remained concerned about was not general in nature, but applied only to suspects who were obese or who suffered from congestive heart failure. 


Well, Floyd was not obese, and the officers had no reason to infer congestive heart failure, so Floyd would not be among the suspects about whom this scientist would still believe positional asphyxia to be a real concern.


Yet another trick that Blackwell made great use of was to ask Fowler if the pathologist had done any “qualitative modeling” in his analysis for this case. 


You’ll recall that one of the state’s purported expert witnesses had shown up in court with a bunch of demonstrative exhibits that claimed to quantitatively measure Floyd’s blood oxygen level, with single-digit percent precision, based on body worn camera, bystander, and surveillance videos.


Of course, Fowler had done nothing of the sort of this quantitative “modeling,” because Fowler’s not a scientific hack, but it opened the door for Blackwell to continually argue about quantitative models he knew very well Fowler hadn’t made, for the perfectly good reason that they would have been nonsense.


Did you quantitatively model the pressure to Floyd’s body? No. Did you quantitatively model oxygen reserves? No. Did you quantitatively model EELV?  No. Did you quantitatively model how much air Floyd took in with each breath during that subdual restraint and positional asphyxia over those 9 minutes and 29 seconds?  No.


This was all, to my view, ridiculous.  That doesn’t mean, however, that it might not have appeared compelling cross-examination to the jury.


And this is one of the areas in which I felt Fowler dropped the ball.  He could have almost certainly prevented this repetitive scolding by Blackwell by simply answering the first time, “No, I didn’t quantitatively model anything in this case.”


Then if Blackwell had attempted to pose the quantitative modeling framing repetitively, as he did in actual cross-examination, Nelson could have immediately objected that the question was asked and answered, and Judge Cahill would almost certainly have upheld an objection on that basis.


Blackwell also attacked Fowler with respect to question of whether Chauvin, who weighed a mere 140 pounds, could have possibly applied enough pressure, based on his position relative to Floyd, to have had fatal effect.


You know police officers carry equipment? That equipment has weight? Did you consider the weight of all equipment in coming to your conclusions?  No, Fowler conceded, he had not.  This was another relatively rare poor response by Fowler.


Another soon-to-be exposed gaffe was committed by Blackwell when he attempted to mislead the jury on the issue of Floyd repeatedly declaring he could not breath long before he was placed in prone on the street.


Could you not see Floyd being choked by the officers even as they were trying to get him into the squad car. I don’t recall seeing that, answered Fowler.


So Blackwell asked for some still photos to be pulled up.  Do you see officer Chauvin’s arm around Floyd’s neck in that photo? And, indeed, Chauvin’s arm was rather loosely draped around Floyd’s neck. 


Was that a point for Blackwell? Was Fowler too inobservant to see that Floyd was being choked at every point that he claimed he could not breath?  Not for long, as Nelson would circle back to this point on re-direct.


In summary, I didn’t feel that Blackwell scored any major hits on Fowler on cross—or, perhaps more accurately, what hits appeared to be scored on cross were exposed as misdirection (to put it nicely) by Nelson on re-direct.


There is, of course, a great deal more detail to Blackwell’s cross of Fowler, but I’ve shared the most important facets already.


Here’s the video of the cross-examination of Dr. Fowler by Prosecutor Blackwell:



Fowler Re-Direct


Nelson did a really excellent job on re-direct of Dr. Fowler, with particular emphasis on addressing any apparent blows that Blackwell might have appeared to land during cross-examination.


On the issue of Fowler not having considered the weight of Chauvin’s equipment, Nelson asked if the state of Minnesota had ever provided access to that equipment so it could be weighed? They had not. To your knowledge has the state of Minnesota ever made weight measurements of Chauvin’s equipment. Not that I ever saw.


Then Nelson turned the whole “you didn’t even bother to consider the weight of the equipment, you dummy!” talking point back on the prosecution.


Whatever the weight of the equipment, after all, it would only have made Chauvin heavier, which was the state’s point in bringing it up, more weight more pressure, more pressure more lethal effect. But of course, more weight and pressure would also be expected to have other consequences.


You said you saw no evidence of bruising to Floyd’s back? I did not. Not even from Chauvin’s knee and shin? No.  When you consider not just Chauvin’s weight, but also the weight of his equipment, would that make it more probable that we should have seen injury if undue force was used?  Why, more likely, of course. But yet no bruising, no hemorrhage, nothing? Correct.


With respect to Fowler’s alleged fairly to conduct CO studies or testing, Nelson asked if his report had mentioned CO as an issue? It had. And when was that delivered to me, and by me to the state?  In February. And to your knowledge has the state of Minnesota conducted any tests or experiments on CO exposure of this type? No.


Nelson also had an opportunity to touch upon the state’s continuallast-minute dumping of exhibits on the defense. You studied photographs of the bottom of squad car 320? I did, answered Fowler. Provided by the state? Yes. Provided since this trial started? Yes, just the last couple of days.


I doubt the jury understood the significance of this exchange, and can’t see any ready means to help them understand it, but it’s now part of the record of the proceedings, and will be available for reference should an appeal of a conviction be necessary.


Recall Blackwell’s attempted misdirection on the matter of the white substance in Floyd’s mouth, which he desperately didn’t want presented as a pill. 


Nelson asked Fowler, can you say what that white substance was, with any specificity?  I cannot, answered Fowler.  But you agree that white pill fragments were found in squad 320? Yes. And those white pill fragments tested positive for saliva? They did. And that saliva tested positive for Floyd’s DNA? They did.


It was at this point during re-direct that Nelson exposed each of the misleading “readings” by Blackwell of various textbooks, studies, affidavits, and depositions, as already described earlier.


Nelson here also circled back to Blackwell’s claim that Floyd had been choked by officers at every point that he claimed he could not breath, including when he was still forcibly resisting being placed into squad 320, long before being put prone on the street.


Nelson pulled up the same photos used by Blackwell. What side of the car is that? That’s the street side of the car. Is that where Floyd got into the car, or was pulled out of the car?  Out of the car.  Was he saying at this moment that he could not breath? He was not. Was Chauvin’s arm positioned to choke him? No, it was loosely draped around Floyd’s neck, with clear space between the front of Floyd’s neck and Chauvin’s arm.


Nelson pulled up slightly earlier photos. What side of the car is this? The sidewalk side. Where Floyd is being put in the car? Yes. When he’s saying he can’t breath? Yes. Is he being choked here? No.


In summary, I thought Nelson was very strong on re-direct of Fowler, and you can watch that testimony here:


Fowler Re-Cross Examination


There was also a very brief re-cross examination of Fowler by Blackwell, but it didn’t amount to anything substantive—did you see Floyd spitting pills out in squad 320? As if Floyd’s DNA on the fragments didn’t give that game away—and it provided an opportunity for Blackwell to recite the “subdual restraint and positional asphyxia” and “9 minutes 29 seconds” a couple of more times. 


Incidentally, the defense objected to the catch phrases each time, here, and Judge Cahill sustained both objections


At that point, Blackwell had no further questions, and the court was done with Dr. Fowler.


You can watch that brief re-cross of Fowler here:



Summary


In summary, it was a good day for the defense on the cause of death front, with a job done very well, if not quite perfectly, by expert witness forensic pathologist Dr. Fowler.  It was also a nice contrast from yesterday’s performance by use-of-force expert witness Barry Brodd.


Whether today is enough to create the reasonable doubt on the issue of cause of death is, however, questionable. And that’s assuming merely the legal merits of the case, and not the fact that the jurors are now apparently commuting through riot-like conditions simply to arrive at the court each day.


One way or another, however, we should expect to know the final outcome of this case soon, and certainly by this time next week.


And that’s about all I have for all of you this evening for our end-of-day wrap-up commentary and analysis of today’s court proceedings. Don’t forget to join us again in the morning for our LIVE streaming and LIVE blogging of tomorrow’s court proceedings, as well as for tomorrow’s end-of-day wrap-up commentary and analysis.


Course Special: Lawful Defense Against Rioters, Looters, and Arsonists


Before I go, in view of the ongoing riots raging presently in Minneapolis, and likely to explode across the nation when this case arrives at a verdict (or mistrial), I’ve also taken the liberty of putting together a special opportunity to access our best-selling course, “Lawful Defense Against Rioters, Looters, and Arsonists,” available in both online streamed and DVD formats.  You can learn more about that course, by clicking here.


And thanks, as always, to both Legal Insurrection and CCW Safe for the support that makes my coverage of this case possible.


Until next time, stay safe!


--Andrew



Attorney Andrew F. Branca

Law of Self Defense LLC



ANDREW BRANCA

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership.  








© CCW Safe 2021. Powered by PeopleVine. Terms of use | Privacy Policy | Cookie Policy