The Slatest

Derek Chauvin’s Legal Defense Is Flimsy Courtroom Whataboutism

A courtroom sketch of defense witness David Fowler with a rendering of George Floyd's certificate of death in the background.
The former chief medical examiner of Maryland, Dr. David Fowler, answers questions on the 13th day Derek Chauvin’s murder trial. Jane Rosenberg/Reuters

Derek Chauvin’s defense team called its own medical expert Wednesday to rebut days and days of specialist testimony presented by the prosecution and to push the alternative theory that George Floyd did not die from asphyxia—or the loss of oxygen—during the arrest but rather a drug overdose coupled with preexisting health problems, including high blood pressure and heart disease. Wednesday’s hearing was the second day of witnesses called by Chauvin’s defense team after the prosecution rested its case after weeks of presenting evidence and calling expert and eye witnesses. Chauvin’s defense team is expected to wrap up its case by Thursday, though it is unclear if Chauvin himself will take the stand in his own defense.

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Much of the day’s proceedings revolved around David Fowler, a former chief medical examiner for the state of Maryland, who was called by the defense to make the broad medical case against Chauvin’s arrest causing Floyd’s death. While the prosecution called numerous, far more specialized experts to testify on each part of the arrest, the video evidence, and the medical reasoning behind their claims, the defense appears set to leave its medical case largely to Fowler, who said he would not have declared Floyd’s cause of death as a homicide, as the autopsy did. Though not part of the Chauvin case, Fowler is currently being sued for his expert testimony in another case in Maryland where police killed a Black teen, an arrest the teen’s parents described as “chillingly similar” to George Floyd’s, but a death that Fowler similarly testified was “accidental.”

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During hours of testimony, there was little about the arrest that Fowler declined to opine on, restating the building blocks of the defense’s case. Fowler introduced new theories, like perhaps Floyd’s oxygen intake was impeded by the exhaust pipe of the nearby police car during the arrest, despite conceding he knew little about the car or whether it was even on at the time. Fowler also testified that perhaps a tumor found in Floyd’s lower abdomen could have contributed to a “sudden surge” of adrenaline that led to “sudden cardiac arrhythmia.” Fowler countered extensive testimony, claiming Chauvin’s weight wasn’t really that heavy on Floyd’s back, neglecting to factor in what prosecutors say was 50 to 60 pounds of equipment. Fowler testified about the position of Chauvin’s knee during the arrest, saying it wasn’t necessarily restricting Floyd’s breathing and, if it was, there would be evidence of bruising on Floyd’s body, skipping over evidence of bruising on Floyd’s left side introduced by prosecutors. Fowler reiterated claims from another defense witness, use-of-force expert Barry Brodd, that studies show that restraining people in the prone position isn’t that dangerous, even though those studies didn’t really fit the length of time and situation under which Floyd was being held. And on and on and on.

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Much of Fowler’s testimony, if it did not completely fall apart, at least looked rickety, under cross-examination by the prosecution and as the Washington Post noted “for a second day, it was unclear whether Chauvin’s witnesses were helping or hurting his defense.” Fowler testified he saw no evidence that Floyd was oxygen-deprived, in part because he did not complain during the arrest of experience problems with his vision, which is a common symptom when human tissue is deprived of oxygen. “People describe little spots of light, a gray curtain coming down,” Fowler said. “[Floyd] complained of shortness of breath, but there was no indication that he made any statements that he was having difficulty in seeing things.”

It could have been this, it could have been that, it could have been anything, just not the most obvious thing. “You put all of those together, it’s very difficult to say which of those is the most accurate,” Fowler explained, which is why he said he would have classified Floyd’s cause of death as “undetermined.”

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