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Live Coverage of Derek Chauvin Trial; David Fowler Is Questioned By the Defense. Aired 10:30-11a ET

Aired April 14, 2021 - 10:30   ET

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

(COMMERCIAL BREAK)

[10:30:56]

JIM SCIUTTO, CNN ANCHOR: The trial of Derek Chauvin has just resumed. This is the next defense witness, his name is David Richard Fowler. He's a forensic pathologist, retired, served in the medical examiner's office in Maryland, brought in as an expert witness. Let's listen in.

DAVID FOWLER, FORMER CHIEF MEDICAL EXAMINER, MD DEPARTMENT OF HEALTH: -- through the system, which is derived from the old British examination process. You end up with an MBChB, and some of them have different letters, which basically mean you have two bachelor's degrees, a bachelor of medicine and a bachelor of surgery.

And it's a six-year training program, not a four-year training program like you have in the United States. Just different ways of getting to the same endpoint.

If you want to work as a physician in the United States, you have to go through a process which, when I went through it, was run by the Educational Commission for Foreign Medical Graduates. And they make an assessment as to whether or not the university that you went to meets the appropriate standards. And these are all universities that are approved by the World Health Organization as meeting certain standards.

Once you've been approved and your university is recognized, then you have to go through a set of board examinations, which are very similar to all U.S. graduates graduating from a U.S. university. So nowadays, they are known as the USMLE examination.

So we go through exactly the same process for evaluation. And then you can be -- you can apply for a medical license in the United States based on that process.

ERIC NELSON, DEFENSE ATTORNEY: OK, thank you for explaining that. And in terms of -- just to clarify, you are a licensed physician?

FOWLER: Yes, I am.

NELSON: All right. And you have board certifications in forensic pathology and anatomic pathology, that's correct?

FOWLER: Yes, I do. NELSON: And you worked as a pathologist or a forensic pathologist in

the United States since approximately 1995?

FOWLER: So that's when I qualified -- well, finished my training in the United States, but I was working as a pathologist all the way from the time I arrived in 1991, so I've had uninterrupted work within pathology all the way from 1990 -- when I started my training in pediatric pathology at the Red Cross Children's Hospital, which was probably back in 1990 -- '85.

But some of that is training, so it's a question as to whether you want to count that as being a pathologist or just a trainee pathologist.

NELSON: OK. What is a pathologist, how would you describe that to the jury?

FOWLER: Typically the pathologist that most people will come across -- well, not come across because they work in the laboratory in a hospital. And they are the individuals who will run the laboratories, and those laboratories are the ones that take the samples, which are taken from individuals during treatment by the surgeons and other clinicians, physicians, and do the analysis on them.

So blood specimens, urine specimens and any biopsies or surgical specimens that are removed from an individual are analyzed in the laboratory by a pathologist. That is the anatomic pathology training, as well as some of that is clinical pathology.

NELSON: Can you tell the jury a little bit about your work with the Maryland Medical Examiner's Office?

FOWLER: Yes. So having finished my training in forensic pathology, I was recruited, became an assistant medical examiner, did that for several years, and then was offered the position of deputy chief medical examiner. And in Maryland, they have two deputies, one which is in charge of autopsy services, and one which is in charge of statewide services.

[10:35:01]

So the one in charge of autopsy services focuses most of their work on supervising the autopsy process and the staff that are doing that, as well as continuing to do autopsies themselves. Statewide services is the individual who then looks at the investigations, which are going on statewide.

And so this is a big jurisdiction here in Minneapolis, but Maryland, the population served by the medical examiner's office is about 6 million people, it's the entire state out of one office. And so we have a lot of investigators out in the counties, doing work. And the coordination and supervision of that falls to the deputy chief for statewide services.

So having been the deputy chief for autopsy services for several years, the chief medical examiner asked me then to take over statewide services, which I did for several years. I was in that position when he suddenly passed away, so the health department asked me to act as the interim or acting chief medical examiner until they could find somebody to take the position permanently.

NELSON: And how long did you act as the chief medical examiner?

FOWLER: So I was acting chief medical examiner for about a year, and after a national search the health department appointed me into the position as chief medical examiner. So I believe that was 2002, 2003. By 2003, if I remember correctly.

NELSON: OK. And you served in that capacity until your retirement?

FOWLER: Yes, it was about 17 years in that position.

NELSON: So what type of work is done at the medical examiner's office? I mean, you've explained kind of the differences in the statewide versus the autopsies.

FOWLER: So the difference between what's done in a hospital and what's done at a medical examiner's office is, in the hospital, the pathologists are looking largely at natural disease. There will be some traumatic -- you know, specimens come from trauma patients, but most of what they're doing is looking at natural disease.

The forensic pathologist is an individual who's gone on to do their additional training in wound patents (ph0 and other non-natural events that threaten life and cause death. So at the end of the process, you have the knowledge base of all the natural disease that a general pathologist has, plus the additional training to evaluate how people die in unusual circumstances, sudden deaths while not attended, or any deaths which are traumatic.

So that's the additional training, that portion is what's done at a medical examiner's office, are these sudden, unexpected deaths.

And so the -- this way of thinking of a medical examiner's office is a 24-hour emergency medical institution. People die all the time, got to be available 24 hours. All of these deaths, you need to respond to them rapidly and appropriately and in a dignified way.

So it's a 24-hour emergency medical institution, with the one responsibility, at the end of the day, of making a determination of the cause of death of the individual that has suddenly died.

NELSON: In addition to your work at the medical examiner's office, did you also do some teaching?

FOWLER: Yes.

NELSON: Where?

FOWLER: So I've taught at the University of Maryland, I'm a professor in both pediatrics and pathology at that particular institution. I've taught at the Johns Hopkins Hospital, I've taught at multiple hospitals in the Maryland-D.C. area. I've taught at the FBI Academy. I've been invited as a guest lecturer and-or visiting professor at multiple universities internationally.

NELSON: All right. In terms of your work as the chief pathologist, did you also train other forensic pathologists?

FOWLER: Yes. So for a portion of my career, while I was an assistant medical examiner, I was directly responsible for training the forensic pathologists. In other words, when a forensic pathologist trainee that (ph) we would call a fellow is doing a case, I would be directly supervising everything that they did on that case. And it would be my responsibility to ensure that that case was done correctly.

And so it's almost like an apprenticeship, and they are standing -- they're going to do the case, but you're going to be watching carefully and evaluating every single part of that process, as they gradually grow through that learning curve to become a forensic pathologist. So for a while I was hands-on, actually teaching at the autopsy table.

When I became deputy chief, I continued to do that but one of the roles that was assigned to me was the residency director position for the office. And so that is the position where you supervise the residency program, and how that program is accredited and evaluated by an outside agency, so you have to make sure that all of those requirements are done. So that's just an additional layer on top of that.

[10:40:24]

NELSON: So were you responsible for recruiting the residents and things of that nature?

FOWLER: Recruiting, evaluating, bringing them in and then obviously training, evaluating. And at the end of the process, each of those fellows, before they can take the board exam in forensic pathology, require that the institution complete a declaration that they have met the standards in order to practice. And that is before they can take the exam.

So they are constantly evaluated daily, quarterly, and then at the end of the year to ensure that they have met the standards that we can attest to, so they are then qualified to take the examination through the American Board of Pathology.

NELSON: And you've testified in cases before?

FOWLER: Yes.

NELSON: State and federal?

FOWLER: Yes.

NELSON: Civil and criminal?

FOWLER: Yes.

NELSON: Can you estimate how many times you've testified in cases over the course of your career?

FOWLER: Gosh, over the 30-some years, it's hundreds and hundreds and hundreds of times.

NELSON: Now, have you ever published any articles or peer-reviewed journal-type information?

FOWLER: Both publications and presentations, I've been involved -- publications, it has to be closing in on 100 but I haven't looked at my C.V. and counted them recently.

NELSON: OK. At the Office of the Chief Medical Examiner's, do you review every homicide?

FOWLER: That was the policy that the chief would get to review all homicides, all pediatric cases that were under the age of about two years, and then any cause which the medical examiner could not determine the cause of death.

NELSON: OK. And how many homicides did you review?

FOWLER: Typically, the number of homicides in Maryland each year would vary between five and 600. So that would be the homicides alone, and then the other cases that added on to that would add an additional load of perhaps 50 to 100 cases.

NELSON: OK. So in this capacity -- or in this case, are you associated with an organization called The Forensics Panel?

FOWLER: Yes.

NELSON: Can you just generally describe what The Forensics Panel is?

FOWLER: The Forensic Panel is a national organization that evaluate -- well (ph) not evaluates, but -- looks at cases and does evaluations on cases in the forensic sciences, the medical sciences and the behavioral sciences. So it's a forensic science organization that looks at those particular issues.

NELSON: What is your role with The Forensics Panel?

FOWLER: I am a forensic pathology consultant.

NELSON: In terms of The Forensics Panel, what's unique about how that organization operates?

FOWLER: So The Forensic Panel really started the process of peer- reviewed evaluations in order to ensure that the case was diligently evaluated, objectively evaluated and was based in the known science. So that's the first thing. And it's peer review, and that has evolved over time.

Then it's an organization, which has many different disciplines recognized -- or that are recognized working within it, so it's a multidisciplinary team. So you have experts in all sorts of medical fields that can be assigned to the case depending on the nature of the case. It's an independent organization.

NELSON: Is it similar to what's called an M&M conference?

FOWLER: A mortality and morbidity is what you're referring to? That is something very similar that were -- that happens in the average hospital when a patient may have something adverse happen to them -- not necessarily fatal, that's the morbidity part -- and/or it is fatal mortality.

And in those circumstances, physicians will present, in a closed environment, all of the materials and their evaluation and the general physician population that have gone to their conference can sit down and critique it, evaluate it, and it's an opportunity for self- evaluation, learning for people and quality assurance for the hospital program, yes, it's similar.

[10:45:10]

NELSON: How did you end up working within The Forensic Panel and when?

FOWLER: About 15 years ago, I was approached by The Forensic Panel and they indicated that another forensic pathologist had recommended me as somebody who might well fit their program.

NELSON: And so within the panel, they're -- you described it as a multidisciplinary approach? How does that function?

FOWLER: So depending on the nature of the case, The Forensic Panel will assign individuals that have skills in areas that the case apparently needs from an evaluation process. So.

NELSON: And you're compensated for your time?

FOWLER: I am.

NELSON: And do you -- your hourly rate?

FOWLER: It's $350 an hour.

NELSON: You at some point became involved in this case, State of Minnesota v. Derek Chauvin?

FOWLER: I did.

NELSON: And how did you become involved in this case?

FOWLER: The Forensic Panel -- I was approached, and asked to become part of it. And I felt that this was such a complex and difficult case that this would better fit working through The Forensic Panel than trying to handle this case independently. So I referred this case to The Forensic Panel.

NELSON: And you -- by approached, you were approached by me, correct?

FOWLER: I believe that that was the first conversation I had, yes. I was a while back.

NELSON: And you referred me to The Forensics Panel?

FOWLER: That's my recollection, yes.

NELSON: Now, in terms of this particular case, how many of these peer reviewers were ultimately involved?

FOWLER: There were 13 peer reviewers across multiple disciplines that were involved in this case.

NELSON: How is it useful for you to have those peer reviewers involved?

FOWLER: Well several of the peer reviewers, I believe seven, are forensic pathologists. So my direct colleagues, with the same training and skillset that you'd expect a good forensic pathologist to have. There were additional individuals in behavioral health, pulmonary -- pulmonologists, emergency room physicians, toxicologists that were present as part of the evaluation team because they have the detailed knowledge in those other areas that really helps critique any opinions that I may form and provide their expertise in ensuring that everything was looked at and that any opinion that is expressed is based in science.

NELSON: What's the process that you apply in approaching a case such as this?

FOWLER: So the primary reviewer in a case like that will be provided all of the available information that has been given to The Forensic Panel. They will go through that material, study it, evaluate it, and then the peer reviewers are given a similar but sometimes slightly less onerous package of materials. But they are given similar materials. They will go through it.

And then I would, in this case -- as I did in this case, and the -- I've been (ph) a (ph) review pathologist on several, and in this case I was the primary. I will do a presentation to The Forensic Panel. And during that time, they have the opportunity to evaluate and critique my opinion.

Based on that ,if there's additional information that is necessary in order to help refine the opinions, that request can go back to The Forensic Panel and through to whichever attorney, whether it be a prosecutor or a defense attorney, a plaintiff's attorney, or a defense attorney.

Requests for the appropriate additional information can be made and if that information is available, sent back so we can complete and try and ensure that we haven't missed anything. So there may be several reviews along the way.

And then at some point, if the --

(UNIDENTIFIED MALE): Objection, your honor, to the narrative nature of (INAUDIBLE). In the meantime, your honor, approach the bench? PETER CAHILL, HENNEPIN COUNTY JUDGE: Sidebar.

[10:50:00]

SCIUTTO: Laura Coates, we've been listening there to David Fowler, a forensic pathologist, now retired, served in the medical examiner's office in Maryland, the next defense expert witness, brief conversation with the judge right now, Charles Ramsey here too. Tell us the significance of this witness here. The intention seems to be to bring another medical expert to question the judgment, assessment of all those we heard from the prosecution.

LAURA COATES, CNN SENIOR LEGAL ANALYST: This is the direct essential critic of what has happened in the prosecution's case, trying to create the forensic pathologist analysis here. Remember, the forensic pathologist is the one to decide, determine the cause and mechanism of death, and to make those determinations.

This witness is intended to try to undermine the testimony. But remember, they'll have to undermine the testimony of not just that forensic pathologist, but also the medical examiner that did the autopsy along with the pulmonologist and cardiologist. This has to be very comprehensive here.

And we're going through his qualifications right now, we have not yet gotten to his opinion or determinations.

SCIUTTO: Laura, just quickly, do judges give juries instructions as to how much to weigh experts against experts, particularly experts that were directly involved in the case -- say, for instance, the medical examiner who testified who was involved in, you know, the autopsy -- versus outsiders?

COATES: Jurors are always instructed to actually assess credibility. They are the ultimate credibility assessment people, they have to decide who they believe, what weight to give to the testimony.

Experts, however, fall in a different category. While the normal layman, it's about just observation and whether they have a gut instinct towards them. When it comes to an expert, you're supposed to take into account the expertise that they're bringing, but ultimately you have to judge them against one another.

And it comes down to who the juror actually believes, who they believe has the most credibility, who has explained it the most clearly to them, who's the most persuasive, and corroboration, again, comes into play here because the more credibility assessments require additional corroboration so you have a pathologist --

SCIUTTO: Yes.

COATES: -- corroborating somebody else, that's going to be important.

SCIUTTO: OK, here we go, back to the questioning, defense's questioning of this medical expert witness.

FOWLER: -- National Association of Medical Examiners.

NELSON: And are you a member of NAME?

FOWLER: I am.

NELSON: Have you held any leadership positions in that organization?

FOWLER: I have, yes.

NELSON: Can you -- well, let me ask you this, does NAME have an inspection and accreditation process?

FOWLER: Yes, it does.

NELSON: Or a committee, I should say.

FOWLER: Yes, it has a committee which does that particular task for the organization.

NELSON: What is the responsibility of the inspection and accreditation committee?

FOWLER: To evaluate medical examiner and coroner offices. It's a voluntary program, and basically it means that the medical examiner's office, once they've passed that evaluation and been accredited, have met certain standards that the National Association of Medical Examiners' board of directors believe are appropriate for the office to have in order to ensure the safety of both the staff that work in the office and also the community that they serve.

NELSON: Are you a member of that committee?

FOWLER: I am now, and I was a previous chairman of that committee.

NELSON: Does NAME have a standards committee?

FOWLER: It does. Right now they are two separate committees, and previously they were both inspection and standards were under one committee. At the time I was the chairperson of that, I chaired --

(CROSSTALK)

NELSON: And how -- how --

FOWLER: -- at the time, but it's now been separated off into two separate ones.

NELSON: Gotcha. How are the standards approved?

FOWLER: So the standards are different. As I said, the accreditationship (ph) is (ph) approved by the board of directors. The standards are a grassroots process, where any member of NAME can suggest a standard. That is then put out to the general population of members of NAME, and then those are discussed and voted on at the annual general meeting in the business meeting. And so therefore, anybody out of the hundreds of pathologists that are

present at that meeting can stand up and address and debate those particular standards, and then at some point a vote is called by the chairman of the Standards Committee as to whether or not that standard would be included or not. And so therefore it's approved by the general membership, not by the board of directors.

NELSON: One last question before we move on. When were those standards approved?

FOWLER: The initial standards started out in 2005, and then they get updated on a regular basis because medical knowledge changes and therefore one needs to keep them appropriate and fresh.

[10:55:13]

NELSON: All right. Can you tell me generally what a death investigation is and what it involves?

FOWLER: Yes, a death investigation is very much like any other medical examination, but specifically looking at individuals, obviously, who have died. So there is gathering of information from the scene of the death, and that is somewhat to replace the information that a patient would give to their doctor.

When you walk into the examination room of your doctor, the first question they'll (ph) ask you is, why are you here today? Deceased people can't speak, and so therefore the scene information really replaces some of that information.

You gather the scene information, you gather past medical records, you then start gathering information from all sorts of pertinent sources. That will (ph) be the ambulance or EMT run sheets, the hospital information if the person made it to the hospital, the current medical information, the past medical information. There'll be witness statements, there will be police reports, videos, everything that is available and pertinent will usually be gathered as part of that process.

NELSON: Would it also include things like specimens that are collected?

FOWLER: Yes. So if a specimen is taken in the hospital, that would be taken. If clothing is available in the hospital and removed from the person during resuscitation, that may well be gathered as well. You're -- all and everything that is reasonably available that could potentially define how the case may be evaluated will be gathered, as is reasonable.

So hospital specimens. If a person, for instance, went into surgery and a specimen was removed from them during the surgical procedure to try and save their life, that would also be requested. So there's lots of things that you would try and get.

NELSON: And is there then -- ultimately it results in a death certificate? FOWLER: Well, there's a long process, which goes on before that.

NELSON: How long does that process take?

FOWLER: So the process would include an autopsy, which is an external examination of the person, an internal examination of the person, maybe X-rays of the person, CT scans of the person, depending on the resources and needs of the case. Additional specimens will be taken at the time of autopsy to look at under the microscope and-or (ph) send off to a toxicology laboratory. And I'm talking very generally, every case is going to be different.

At the end of that process, you begin the evaluation of the case. In complex cases, certain specimens will be retained and often sent to an expert in that particular area. So some offices have access to a neuropathologist, who specializes in looking at brains and spinal cords.

So if you have that resource and it's a case where (ph) that really may well assist in getting the additional detail that a specialist who only looks at that can provide, then you will save that specimen and have them look at it in conjunction with you. So it's usually an examination of the two with their extra expertise at the same time.

NELSON: Are there other factors or other processes that occur?

FOWLER: Yes, and you know, some offices have access to cardiac pathologists. The Maryland office does, and so in many of these complex cases the heart would be retained and examined by a cardiac pathologist.

And you have (INAUDIBLE) general forensic pathologist has a substantial body of knowledge and is very good at identifying most things, but there are cases when somebody who only looks at that one organ is going to have a better eye for detail in that particular area. And so you can do that. Not all offices have access to those resources, but if you have, that's a good thing.

So those all add time to waiting for those examinations to be done, and the results to be sent back so they can be put into the evaluation matrix, the jigsaw puzzle of all of the information that you're trying to include, as well as the toxicology results, which take a while to come back, the microscopic examination, which the pathologists will do themselves. It takes a while for the glass slides.

[11:00:09]