Could an alternate theory of the death of George Floyd introduce enough reasonable doubt to acquit Derek Chauvin? Or, perhaps, at least keep him from getting convicted on the murder charges? The defense certainly hope it does, and has already submitted documents to the court arguing that Floyd died of a fentanyl overdose.
The local NBC affiliate in Minneapolis covered the medical examiner’s report that noted a “fatal level” of the drug in Floyd’s system, but the report isn’t entirely good news for the defense either:
Handwritten notes of a law enforcement interview with Dr. Andrew Baker, the Hennepin County Medical Examiner, say Floyd had 11 ng/mL of fentanyl in his system.
“If he were found dead at home alone and no other apparent causes, this could be acceptable to call an OD. Deaths have been certified with levels of 3,” Baker told investigators.
In another new document, Baker said, “That is a fatal level of fentanyl under normal circumstances.”
Dr. Baker isn’t entirely helpful to the defense in this report:
But then Baker added, “I am not saying this killed him.” … In Baker’s final report after watching the videos, he ruled Floyd’s death a homicide caused by “law enforcement subdual, restraint, and neck compression.”
That’s the problem for the defense. As KARE11 explains, Dr. Baker held off on watching the Floyd death video until after his medical examination, so as not to impact his scientific analysis. After watching the video, Dr. Baker called it a homicide brought about by the methods used to detain Floyd by police — and the FBI had that confirmed by a military pathologist as well, in advance of a potential federal civil-rights case. As another pathologist explains, fentanyl may have been a complicating factor, but it’s not necessarily what killed Floyd either. “It’s one thing to die *with* something,” Dr. Stephen Nelson explains. “It’s another thing to die *from* something.”
While a number of critics of the prosecution have cited this report and its data as exculpatory, it seems more ambiguous on closer inspection, given Baker’s final determination. Its value might be more in mitigation rather than in vindication, ie, giving the defense a reasonable-doubt argument against murder charges. If Floyd had these complications and the officers used restraint techniques approved by the Minneapolis PD (they were in the manual at the time), then perhaps that introduces enough reasonable doubt to eliminate the underlying-felony component needed for second-degree murder and the depraved-indifference component of third-degree murder. If the pathologist concluded that the police restraint techniques killed Floyd, though, that and the extraordinary length of time they applied those restraints still might leave plenty of certainty for a manslaughter conviction.
Of course, that’s the difference between five years in prison and twenty-five or more, too. One can see why the defense will rely heavily on that fentanyl level determination in the days ahead. If the jury is looking for reasonable doubt, at least in terms of the more serious charges against Chauvin, that fatal level of fentanyl might be enough.
As for the trial itself, read Power Line’s Scott Johnson and National Review’s Andrew C. McCarthy for expert analysis. They are following it most closely and are capturing the nuances and flow of the trial as it progresses. Scott appears very skeptical of the defense’s strategy and tactics thus far, and raises important questions about its lack of robust cross-examination of the first few witnesses. And while you’re at it, follow my friend and RedState colleague Shipwreckedcrew for more legal analysis on the fly as developments occur.