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Matt Gaetz Associate Likely to Strike Plea Deal; Pulmonologist Testifies in Chauvin Trial. Aired 3-3:30p ET

Aired April 08, 2021 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[15:00:00]

DR. MARTIN TOBIN, PULMONOLOGIST: Right. But if it's affecting the respiratory center, it's going to act through the immune receptors in the medulla oblongata. There's no way around that.

ERIC NELSON, ATTORNEY FOR DEREK CHAUVIN: Right.

TOBIN: It's not -- fentanyl isn't going to have an effect on respiration by some other mechanism.

NELSON: Understood.

But the end result of fentanyl can include respiratory depression?

TOBIN: Right, through the immune receptors.

NELSON: Right.

And we also learned that there was methamphetamine in a low dose in Mr. Floyd's system, right?

TOBIN: Correct.

NELSON: And the fentanyl and the methamphetamine, they can kind of counteract each other, right?

TOBIN: Well, they're upper and downers.

But in terms of the respiratory centers, there is not going to be.

NELSON: So the methamphetamine would not -- I mean, the methamphetamine is going to increase the heart rate, right?

TOBIN: That's a different thing than the respiratory centers.

NELSON: Understood, but that's going to -- methamphetamine will increase a person's heart rate, right?

TOBIN: Yes.

NELSON: That's one of the side effects.

TOBIN: Yes.

NELSON: And there are a few lawfully -- there are a few conditions where a physician can lawfully describe methamphetamine, right?

TOBIN: Yes.

NELSON: But it's exceedingly rare that it's actually done?

TOBIN: I can't say. But it's definitely a prescribable agent, kind of -- it used to be commonly for appetite suppressant.

NELSON: And I think ADHD? Is that right?

TOBIN: Yes. Yes.

NELSON: OK.

So, we also know that adrenaline will increase the heart rate, right?

TOBIN: Yes.

NELSON: And adrenaline can be put into the body in multiple ways, right?

TOBIN: I'm not sure.

NELSON: Well, let me -- there are many things that can cause a surge in adrenaline.

TOBIN: Yes.

NELSON: One of those things would be getting into a fight with someone?

TOBIN: Yes.

NELSON: Or being afraid?

TOBIN: Difficult to know in terms of being afraid, but getting into a fight.

NELSON: And the paraganglia, paraganglioma that was found, I understand you call it the 10 percent tumor, but in 10 percent of the tumor cases, that can cause an adrenaline surge.

TOBIN: Yes. I mean, and in the 90 percent, it won't.

NELSON: Now, in terms of the use of fentanyl in the hospital setting, surgical setting, have you become familiar with a -- what's called wooden chest syndrome?

TOBIN: Yes, I have.

NELSON: And can you explain for the jury what wooden chest syndrome-- TOBIN: In some patients, with fentanyl, you get an increase in chest wall stiffness.

NELSON: So, the lungs become less elastic?

TOBIN: Not quite the lungs. The chest wall.

NELSON: OK.

So, that would prevent -- a chest wall tight -- or a chest wall rigidity will also decrease the performance of the lungs?

TOBIN: It will impede the ability of the lungs to impact -- to expand.

NELSON: Now, in your report, you wrote that you would expect the peak respiratory depression to occur from fentanyl within five minutes of ingestion.

TOBIN: Right.

NELSON: And have you come to learn that tablets were found or controlled substances were found in the become seat of Squad 320?

TOBIN: I mean, I have heard reports to that effect. I don't know what the status of it is.

NELSON: All right.

So, you were not -- you have not been provided with any additional information since the time you have prepared your report?

TOBIN: I -- no, I'm sure that's wrong.

But I have been provided with a lot of information. I don't necessarily recall, keep it all at -- in the front of my brain.

NELSON: Sure. OK.

Well, yesterday, we heard testimony from the state crime lab that there were in the back seat of the squad car two partially consumed pills found in the back of Squad 320. OK.

JERRY BLACKWELL, MINNESOTA PROSECUTOR: Objection, Your Honor, to the characterization of testimony.

NELSON: To the characterization of--

PETER CAHILL, HENNEPIN COUNTY, MINNESOTA, JUDGE: I'll overrule that, if it's foundational to your question.

NELSON: It is.

You understand that?

TOBIN: No. I said I -- kind of, but not fully. NELSON: OK.

Yesterday, a chemist from the state crime lab testified in this case.

TOBIN: OK.

CAHILL: (OFF-MIKE) ruling. It is sustained. You can state in the form of a hypothetical, however.

NELSON: I'm sorry. Can we -- I can't hear you.

CAHILL: Quick sidebar.

BALDWIN: All right, quick sidebar.

Elie Honig, how's this going?

[15:05:06]

ELIE HONIG, CNN LEGAL ANALYST: -- job of scoring some points on cross-examination. Not here.

Here's why. Here's the fundamental flaw. Even if all these other factors that Nelson is bringing up had some role, some contributing factor to the death, the weight that Derek Chauvin put on George Floyd, as long as that was one factor, Derek Chauvin is liable.

Ask yourself, have you seen anything on this cross-examination that makes you question or doubt anything that Dr. Tobin attested to this morning about that direct cause of death by lack of oxygen? I haven't seen anything that makes me question or doubt that so far.

BALDWIN: OK. Let's jump back in. I think they're back.

NELSON: -- ask -- let me ask you in the form of a hypothetical question, OK?

If partially ingested pills that were determined to contain both fentanyl and methamphetamine were found partially ingested in the backseat of the squad car, and that those pills had been -- had come -- had the DNA of the deceased individual on them, meaning that they took them, and those pills would have been in his mouth at about 2:18 -- or 20:18, right, is it fair to say that you would expect the peak fentanyl respiratory depression within about five minutes?

TOBIN: Right.

I mean, obviously, it would depend on how much of it was ingested. Just finding the pills won't tell you anything about whether any of it was ingested or some of it or anything.

But if what -- if there was any amount of it ingested, yes, the peak would be five minutes.

NELSON: Right. And so if it happened at 20:18 or thereabouts, when the individual is

in the back of the car, you would expect that peak respiratory depression to be around 20:13, right?

TOBIN: Twenty--

(CROSSTALK)

NELSON: Twenty -- 20:23. I'm sorry -- 20:18 to 20:23.

(CROSSTALK)

TOBIN: You're trying to really confuse me, Mr. Nelson.

(LAUGHTER)

NELSON: I'm sorry.

I think I can actually say it's been a long week now. So, 2018 is the ingestion point. You would expect peak respiratory depression by 20:23, right?

TOBIN: Correct.

NELSON: That's the peak, meaning that it could continue afterwards, right?

TOBIN: Right.

NELSON: All right.

You also described in your direct testimony what you have interpreted to be an anoxic seizure at 20:24.

TOBIN: Yes, correct, 24:21.

NELSON: 20:24.

TOBIN: Twenty-one.

NELSON: Twenty-one.

And that was in what you saw and what the jury was played, was reflected from Officer Lane's body camera, right?

TOBIN: Correct.

NELSON: And it was the kick of the legs, right?

TOBIN: Yes.

NELSON: And after that point, you can see Officer Lane hold the leg down, right?

TOBIN: Yes.

NELSON: And you can see it kick up again, right?

TOBIN: Yes.

CAHILL: Let's try not to talk over each other.

TOBIN: Sorry.

NELSON: I have a tendency to go fast.

That's what you recognized, based on your 46 years of being a pulmonologist and intensivist, in your experience, right?

TOBIN: Right. I mean, obviously, there was additional information from the hand, but, I mean, the leg was the key.

NELSON: Right.

And it would be reasonable for a police officer to interpret that same behavior as resistance?

BLACKWELL: Objection, Your Honor. Foundation of the witness talk about what's reasonable for a police officer.

CAHILL: Sustained.

NELSON: Now, you testified that the last breath of Mr. Floyd was at 20:25:16, right?

TOBIN: Correct.

NELSON: Prior to that point, to all people who were there and monitoring him, he would have appeared to have been breathing, right?

TOBIN: I -- it's just hard for me to hear.

NELSON: Sorry.

Prior to that point--

TOBIN: Yes.

NELSON: -- it would be reasonable that he would appear to be breathing, right?

TOBIN: Yes.

NELSON: And, in fact, you showed us a segment where you could -- were able to count his respiratory rates.

TOBIN: Yes.

NELSON: Right?

And then you said that, at 20:35 and 06 seconds is when the first air was pumped back in to him.

TOBIN: Correct.

NELSON: All right.

And you understand that paramedics arrived at 20:27 and 45 seconds?

[15:10:02]

TOBIN: Yes.

NELSON: And so the time between when the paramedics arrived and Mr. Floyd got his first air was roughly eight minutes, almost nine minutes, right?

TOBIN: Yes.

NELSON: Right?

TOBIN: Yes.

NELSON: And, according to timelines, the drive to the hospital was about five minutes.

TOBIN: I'm sorry. I didn't catch that.

NELSON: Were you aware that the drive to the hospital is about five minutes?

TOBIN: I wasn't aware, but I have no reason to dispute it.

NELSON: All right.

And so, between 20:27 and 45 seconds, when the EMTs first arrived and the time they got him to having air in his lungs, that was a crucial nine minutes.

TOBIN: Yes.

NELSON: All right.

Your Honor, I have nothing further.

CAHILL: Mr. Blackwell.

BLACKWELL: Dr. Tobin, just a few questions, just for clarification's sake.

You were just asked a lot of questions about science and medicine changing, constantly changing, evolving by the nanosecond, by the millisecond. You heard all of that?

TOBIN: Yes, I did.

BLACKWELL: I want to go to the period of time when Mr. Chauvin was on the back and neck of Mr. Floyd.

TOBIN: Yes. BLACKWELL: Did you see him get off of the back of Mr. Floyd by the

nanosecond, by the millisecond, by any seconds, in the nine minutes and 29 seconds that you saw him on him?

TOBIN: No, I did not.

BLACKWELL: If you look at the five minutes and three seconds that you focused on, where, if you consider all the nanoseconds and milliseconds in the five minutes and three seconds, where was Mr. Chauvin the vast majority of that time?

TOBIN: He was on Mr. Floyd's neck and on his back and arm.

BLACKWELL: Right, not constantly changing?

TOBIN: No.

BLACKWELL: Now, you were asked questions about what injuries were noted on autopsy.

TOBIN: Yes.

BLACKWELL: And I think a reference was made there was no injury noted to the hypopharynx on autopsy.

TOBIN: Correct?

BLACKWELL: Does that make any difference to you whatsoever?

TOBIN: None whatsoever. I wouldn't expect there to be anything found there at autopsy.

BLACKWELL: And why not? Why not, Dr. Tobin.

TOBIN: Because the effects on the hypopharynx are not something that is going to remain at the time of an autopsy.

I mean, the type of changes that we see, say, in somebody with sleep apnea, that's not something you're going to see the following morning when you look at somebody. It's just not there.

BLACKWELL: There was also a reference made to the absence of bruising on the neck during autopsy.

TOBIN: Yes.

BLACKWELL: Does that make any difference to you whatsoever?

TOBIN: No, because, obviously I go to -- whenever I go to church, I sit on a hard bench. I don't get bruising of my buttocks when I leave.

So, I wouldn't expect anything in terms of that. So, if you have somebody -- this was a static force. It's not -- it's not as if somebody is jamming against it. So, you wouldn't expect anything in the way of bruising. BLACKWELL: And, scientifically, do you know of any correlation between the presence or absence of bruising on autopsy and the forces necessary to restrict breathing?

TOBIN: No, they're totally different, because it's in terms of static forces and dynamic.

BLACKWELL: What about low oxygen? If somebody has -- suffers or dies from low oxygen--

TOBIN: Yes?

BLACKWELL: -- does that show up on autopsy?

TOBIN: No, it does not.

BLACKWELL: And the fact that it doesn't, does that mean anything to you whatsoever?

TOBIN: It has no meaning.

BLACKWELL: And why not?

TOBIN: Because low oxygen is a functional thing, just like an arrhythmia is a functional thing. It doesn't -- it doesn't leave a fingerprint on the autopsy. It's just there. It's something that happened.

It's -- but it won't leave any fingerprint afterwards. You don't see it.

BLACKWELL: But does it mean that the person didn't die from low oxygen?

TOBIN: No, absolutely not.

So, if you take somebody and you suffocate them with a pillow, and it's very clear to you after you suffocated the person that he's dead from the pillow, you're not going to see the effects of the low oxygen.

BLACKWELL: Right.

Now, you were asked quite a few questions about Mr. Floyd's preexisting health conditions.

TOBIN: Correct.

BLACKWELL: And, remember, he cited a number of those.

TOBIN: Yes.

BLACKWELL: Do any of those conditions have anything to do with the cause of Mr. Floyd's death, in your professional opinion, whatsoever?

TOBIN: None whatsoever. BLACKWELL: And, again, what was the cause, such that those conditions

don't matter?

TOBIN: The cause of death is a low level of oxygen that caused the brain damage and caused the heart to stop.

[15:15:03]

BLACKWELL: You were also asked questions about substances in Mr. Floyd's system. I think you were asked questions about nicotine. Remember that?

TOBIN: Yes.

BLACKWELL: He didn't die from nicotine, did he?

TOBIN: No.

BLACKWELL: You were ask questions about fentanyl and meth.

TOBIN: Yes.

BLACKWELL: Any evidence that he died for meth?

TOBIN: No, none.

BLACKWELL: You were asked questions about whether he had ingested any fentanyl within five minutes of his time of death.

TOBIN: Yes.

BLACKWELL: Now, I think you explained to us that if somebody is suffering from a fentanyl overdose, you would see a depression in the respiratory system.

TOBIN: Yes.

BLACKWELL: And depression means some reduction in the rate of ability to breathe.

TOBIN: Correct.

BLACKWELL: Did you see any depression in Mr. Floyd's ability to breathe whatsoever before he went unconscious?

TOBIN: No, absolutely not. He was normal respiratory rate.

BLACKWELL: Any evidence then that any fentanyl in his system depressed his breathing in any way whatsoever?

TOBIN: No. And that's further borne out in the carbon dioxide.

BLACKWELL: All right.

Thank you, Dr. Tobin. No further questions.

TOBIN: OK.

CAHILL: Anything further?

NELSON: (OFF-MIKE)

Two very quick questions.

In terms of the carbon dioxide level, you testified that it was at a 96?

TOBIN: Yes.

(CROSSTALK)

TOBIN: I'm sorry. I didn't catch--

NELSON: You testified that the carbon dioxide was at a 96?

TOBIN: I think it was 89.

NELSON: Eighty nine, and was also measured at 102. Do you--

TOBIN: That's the venous one, but not -- the arterial is the one you need to look at.

NELSON: All right.

And in terms of the ingestion -- or, just generally speaking, fentanyl can also cause death as a result of low oxygen to the brain, right?

TOBIN: But it would have to be -- to respiratory depression.

NELSON: Right.

The question is, fentanyl can also cause a death as a result of low oxygen?

TOBIN: Your answer is yes, but only in part.

NELSON: OK. Fair enough. Thanks.

CAHILL: (OFF-MIKE) Briefly.

BLACKWELL: Just one, Your Honor.

Mr. Nelson brought up again fentanyl as a cause of death.

TOBIN: Yes.

BLACKWELL: Doctor, you're familiar with the way people die from fentanyl?

TOBIN: Yes, very.

BLACKWELL: Do they or do they not go into a coma before they die from a fentanyl overdose? TOBIN: Yes, they will.

BLACKWELL: Was Mr. Floyd ever in a coma?

TOBIN: No.

BLACKWELL: Thank you, Dr. Tobin.

TOBIN: OK.

CAHILL: Anything else?

NELSON: No.

CAHILL: Thank you.

Doctor, thank you so much. And you are excused.

TOBIN: OK. Thank you.

CAHILL: Let's take a five-minute break, so we can all get our voices back.

BALDWIN: OK, five-minute break. We have got to talk about all of this.

Elie Honig, Cedric Alexander, both of you with me, and the back-and- forth, back-and-forth.

What did you think, Elie?

HONIG: So, that was a clinic and what you want to do as a prosecutor on redirect, meaning after the cross-examination.

We saw prosecutor Blackwell get up and bring it right back to the key points here, right? One of the main points on cross-examination was, well, things change, physiologically speaking, second by second, depending where the weight is.

But the prosecutor brought it right back to, you know what never changed during those key 9:29, or especially the key five minutes? That Derek Chauvin was on top of George Floyd and putting his body weight on the back of a vulnerable man. That's the kind of thing you want to do on redirect.

BALDWIN: Cedric, what did you think?

CEDRIC ALEXANDER, FORMER PRESIDENT, NATIONAL ORGANIZATION OF BLACK LAW ENFORCEMENT EXECUTIVES: Well, clearly, the defense did everything it could to try to make something out of nothing, to be quite honest with you, from my opinion as a layperson.

He's got to throw whatever against the wall that he feels may stick. But the science is the science. And that does not change. And I think that Dr. Tobin has done a very good job in that, because one thing that is -- about change -- about the science, it is what it is. And to try to minimize it to something else, you just cannot do. The science is the science. And he's an expert in it. And he articulates it and make it very clear, regardless of whether it's the (AUDIO GAP). It just is exactly what it is. And that's the hard science of this case.

BALDWIN: Gentlemen, stand by. They're taking a break in the courtroom.

We're going to take a quick commercial break.

You're watching CNN. I'm Brooke Baldwin.

(COMMERCIAL BREAK)

[15:24:15]

BALDWIN: All right, just before they come back from this quick break in the courtroom there in Minneapolis, Elie Honig and Cedric Alexander are back with me.

And, Elie, I wanted to ask you about this little -- little detail, could be a bigger detail, about the fact that they didn't find from these autopsies any bruising on George Floyd's neck. And when they're obviously placing so much emphasis on Derek Chauvin's knee, on his neck, arm, back.

What's your assessment there?

HONIG: That was a really interesting moment, because, heading into the trial, we knew one of the main defenses would be, well, if the prosecution saying he was asphyxiated, why would there be no bruising on the neck?

As a layperson, and I'm sure a juror is wondering, well, how could that be? This witness just explained you would not expect to see bruising. He used the example of when he goes to church and he gets up, and he -- you wouldn't see bruising on his butt as a result of sitting, because he talked about the difference between a static force, meaning a long-lasting, steady force, and a dynamic force, which is a strike.

[15:25:12]

He said, a dynamic force could leave a bruise, but a static, a long, sustained pressure wouldn't necessarily leave a bruise. That's going to be a really important point as we move forward here.

BALDWIN: And then also, Cedric, to you.

The defense's arguing, well, George Floyd's heart condition made it worse. They're talking about the drugs, the pills. At the end of the day, this is about, was it the drugs or was it the knee on -- of Derek Chauvin on George Floyd's neck that ultimately killed him?

What did you think of that? ALEXANDER: Well, the defense also brought up the fact that what Dr.

Tobin may have been stating was theory. And theory is an idea, a supposition about something.

What Dr. Tobin was speaking to was, of course, the very hard science that has been studied data collected and years and years of research that he has done over the years and what has been concluded by others.

So, here again, the defense has to do whatever it can, but it's very, very difficult. And I think the jury will see through that, that a lot of the smokescreen that's being thrown by the defense is just doing -- them doing the very best that they can in a real tough situation, in which the prosecution is really doing a dynamic job here.

BALDWIN: Cedric and Elie, hang with me. We're waiting for them to resume this trial.

I do want to pivot to this breaking story quickly here involving Florida Congressman Matt Gaetz and this ongoing sex trafficking investigation.

CNN has learned that this key associate of Congressman Gaetz is likely to strike a plea deal with federal prosecutors as part of that investigation.

And CNN senior legal affairs correspondent Paula Reid is in Orlando outside the courthouse.

And what have you learned since the last time we spoke, Paula?

PAULA REID, CNN SENIOR LEGAL AFFAIRS CORRESPONDENT: Well, Brooke, this is potentially bad news for Congressman Matt Gaetz, as one of his closest political allies and friends has signaled that he will likely enter a plea deal to resolve his own criminal case.

Joel Greenberg, the former tax collector in Seminole County, Florida, he's facing over 33 criminal counts. So, he has an incentive here to provide any evidence of any sort of criminal conduct that he has to the Justice Department in exchange for a more lenient sentence.

BALDWIN: Paula, forgive me. Forgive me.

You know what I have to do. I have got to cut you off because we're going back to Minneapolis. Here we go, next witness.

CAHILL: -- If you feel comfortable doing so.

And let's begin by having you state your full name, spelling each of your names.

DANIEL ISENSCHMID, FORENSIC TOXICOLOGIST: My name is Daniel -- D-A-N- I-E-L -- Isenschmid -- I-S-E-N-S-C-H-M-I-D.

CAHILL: Ms. Eldridge.

ERIN ELDRIDGE, MINNESOTA ASSISTANT ATTORNEY GENERAL: Thank you, Your Honor.

Good afternoon, sir.

ISENSCHMID: Good afternoon.

ELDRIDGE: Where do you work?

ISENSCHMID: I work at NMS Labs, Horsham, Pennsylvania..

ELDRIDGE: And -- did you say in Horsham, Pennsylvania?

ISENSCHMID: Yes.

ELDRIDGE: Have you been with NMS Labs?

ISENSCHMID: Since 2011.

ELDRIDGE: What do you do at NMS Labs?

ISENSCHMID: I'm a forensic toxicologist at NMS.

ELDRIDGE: And did you have any other lab experience before joining NMS?

ISENSCHMID: Yes, I did. Prior to joining NMS, from 1994 to 2011, I was the chief toxicologist for the Wayne County, Michigan, Medical Examiner's Office. And before that, I was at Southgate Medical labs. I was director of toxicology.

And prior to that, from 1982 to 1991, I was at Maryland medical labs in Baltimore, Maryland, also during that period working at some time during the -- I think it was from '86 -- or '84 to '86 at the medical examiner's office in Baltimore as well.

ELDRIDGE: So, rewinding a bit to your educational background, could you just describe for the jury what your educational background is?

ISENSCHMID: Sure.

I have a bachelor's degree in biology from Adelphi University in Garden City, New York. And that was attained in 1982. And I have a master's degree in forensic pathology with a concentration -- actually, pathology, with a concentration in forensic toxicology.

And that's from the University of Maryland at Baltimore. That was in 1990 -- 1986. And then my Ph.D was from University of Maryland at Baltimore in forensic toxicology in 1991.

ELDRIDGE: Do you have any specialized certifications related to your work?

ISENSCHMID: I am board-certified as a fellow from the American Board of Forensic Toxicology.

ELDRIDGE: And what are the requirements for that? ISENSCHMID: So, the requirements for, they have changed over the years, but for the fellow requirement, you can apply to the board after three years after you have your Ph.D.

They examine your credentials to see that you're active in the field of forensic toxicology. If you have the right references and you're active in the field, they will allow you to sit for an examination.

And then, if you pass the examination, the board votes on your final certification.