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Prosecution Cross-Examines Pathology Expert in Chauvin Trial. Aired 3:30-4p ET

Aired April 14, 2021 - 15:30   ET

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

[15:30:00]

DR. DAVID FOWLER, FORMER CHIEF MEDICAL EXAMINER, MARYLAND DEPARTMENT OF HEALTH: No.

JERRY BLACKWELL, PROSECUTING ATTORNEY: All right, then -- all right, I asked you the question about when the sudden death occurred. Where in this spectrum then -- it's OK if you don't know the specific time -- but where in this continuum did the sudden death occur from the time he is on the ground, saying he can't breathe, to the point in time he's found not to have a pulse. Are you able to generally characterize where the sudden death took place?

FOWLER: So what you're referring to as sudden death and I may well have misinterpreted, I'm referring to as sudden cardiac arrest. There's a difference between death and cardiac arrest.

Cardiac arrest is not absolutely irreversible and not synonymous with a person always passing away. So there's going to be a period of time between his cardiac arrest. For instance, in this particular case, the official pronouncement was done in the hospital.

Frankly, he was dead long, long before that. But the moment of death is not something that you can easily document.

BLACKWELL: So when we are in this space, where there is a space between cardiac arrest and between the actual death, are you suggesting that though Mr. Floyd may have been in cardiac arrest, there was a time when he may have been revived because he wasn't dead yet?

FOWLER: Immediate medical attention for a person who has gone into cardiac arrest may -- may well reverse that process, yes.

BLACKWELL: Do you feel that Mr. Floyd should have been given immediate emergency attention to try to reverse the cardiac arrest?

FOWLER: As a physician, I would agree.

BLACKWELL: Are you critical of the fact that he wasn't given immediate emergency care when he went into cardiac arrest?

FOWLER: As a physician, I would agree.

BLACKWELL: When you were observing the footage of Mr. Floyd after he has gone unconscious, there's a point in time where you see his legs raise up. Do you recall seeing his legs raise at the point after he was unconscious on the ground?

FOWLER: Yes.

BLACKWELL: Was that leg raising, was that consistent with what's known as an anoxic seizure?

FOWLER: That is what we would typically call it, yes.

BLACKWELL: And an anoxic seizure typically represents that there has been some damage to the brain stem due to insufficient oxygen, true?

FOWLER: It's anoxics or in some cases we would call it hypoxic seizure. And it's not damage to the brain stem, it means that the part of the brain that governs our actual muscular movement, which is the higher portion of the brain is not functioning properly.

So, typically people with seizure disorders who have seizure activity, it's from the motor cortex and not from down at the brain stem. If you've damaged the brain stem at that particular stage, the person is effectively going to be deceased.

BLACKWELL: So, but it's fair to say, when we see an anoxic seizure, at the very least, we know that the brain is suffering from insufficient oxygen?

FOWLER: Yes.

BLACKWELL: Do you agree that low oxygen in the body, insufficient oxygen, it can cause brain injury, can't it?

FOWLER: Absolutely.

BLACKWELL: And it can also result in P.E.A., pulseless electrical activity, true?

FOWLER: True.

BLACKWELL: Now, Mr. Floyd had a P.E.A., a pulseless electrical activity arrythmia when his body was taken away from the scene on May 25, 2020, didn't he?

FOWLER: Correct.

BLACKWELL: Is it true, Dr. Fowler, that the most common cause of a P.E.A. is low oxygen, insufficient oxygen?

FOWLER: To the brain?

BLACKWELL: Yes, sir.

FOWLER: Yes. Which can also be caused by a cardiac stand still. So no oxygen to the brain, from either mechanism, will cause P.E.A.

[15:35:00] BLACKWELL: I had a number of questions. I'm kind of thinking through them, I'll just ask you this. I had a number of questions that have to do with whether you did any sort of quantitative measurements about Mr. Floyd's oxygen level, his EELV at different points in time. Including at what point in time do you think his oxygen storage were completely depleted?

I take it, Dr. Fowler, if I have any questions about quantitative measurements, about Mr. Floyd's EELV, those would not have been measurements you would have undertaken for any reason, right?

FOWLER: Correct.

BLACKWELL: And to the extent we are looking for such measurements, better to ask either a pulmonologist, a respiratory physiologist but not necessarily -- well, not Dr. Fowler as a forensic pathologist, fair enough?

FOWLER: Fair enough. Forensic pathologists do not typically look at living people who are breathing.

BLACKWELL: By the same token, if I had a series of questions about measurements of the carbon dioxide levels in Mr. Floyd's body after he ceased to breathe, between the time that he ceased to breathe and before the time he was given oxygen, when he was picked up and given medical care and taken to Hennepin County Medical Center.

You didn't do any quantitative analysis, did you, as to the carbon dioxide levels in Mr. Floyd's body in between the time he ceased to breathe and then the time he would receive assisted oxygen?

FOWLER: No, not specific quantitative analysis, no.

BLACKWELL: You had quite a discussion about the paraganglioma. Remember that discussion?

FOWLER: Yes.

BLACKWELL: Do you know we had a witness who testified who refers it to -- refers to an incidental log. You have heard that expression before?

FOWLER: Yes.

BLACKWELL: Now you talked about the paraganglioma potentially being an issue if it were secreting adrenaline, right?

FOWLER: Correct.

BLACKWELL: 90 percent of paragangliomas do not secrete adrenaline, is that right?

FOWLER: I think that's probably correct. I don't have that number in my head, but I have no reason to disbelieve that.

BLACKWELL: Now, you're not telling the jury, are you, sir, that Mr. Floyd died from a paraganglioma, are you? FOWLER: No.

BLACKWELL: And although Dr. Baker did identify the paraganglioma on autopsy, he didn't perform any tests to determine whether it was a secreting tumor, that is, secreting adrenaline, did he?

FOWLER: Correct. The only way to test those particular tumors is -- there's two methods to test. One is to do a blood test and if the paraganglioma is one which is constantly secreting, you'll pick it up on a blood test.

For those paragangliomas that tend to be cyclical, if you do a blood test and you happen to pick it up at the bottom of the cycle, it won't show.

And so in some cases, the first test is to do a blood test. If it's positive, you've got your answer. If that blood test is negative, you then go on to do a 24-hour urine catecholamine screen, which will pick up the surges and the dose. And that is then the second test. That would be done in these cases, neither of them were done.

BLACKWELL: Doctor, just for clarification, is it pronounced paraganglioma or paragangli-inoma?

FOWLER: I often add in the extra vowel. So it's a paraganglia-inoma -- paraganglioma. Sorry.

BLACKWELL: Thank you, Dr. Fowler.

Is it true that in all the world literature, there have only been six reported cases of people who have died from a sudden heart event from adrenaline release from a paraganglioma, is that true?

FOWLER: That's what the literature says. Because in many cases it may go completely unrecognized.

BLACKWELL: I just asked if it was true, Dr. Fowler.

FOWLER: Yes, that's what's in the literature.

BLACKWELL: Now, one of the signature hallmarks of a paraganglioma is a headache, right?

FOWLER: If it is one that does secretion, at surge and then dip and surge. So if it's one that constantly secretes a small amount, it will not cause any symptoms at all.

[15:40:00]

BLACKWELL: All right. But to the extent that -- well, we know that amongst the various complaints that Mr. Floyd had about pains, he never did complain about a headache, did he?

FOWLER: I seem to remember at least -- I seem to remember one admission where he complained of a headache, but I -- I'm going from memory now. And you know I am not sure. BLACKWELL: And here I'm referring to May 25th of last year. You have a

recollections that Mr. Floyd complained of a headache?

FOWLER: I know he complained of tooth pain and a few other things. But I can't be sure that he did not complain of headache, I do not have a clear recollection, counselor.

BLACKWELL: Right. I won't hold you to that.

FOWLER: Thank you

BLACKWELL: So Dr. Fowler, you asked some questions about Mr. Floyd saying, I can't breathe, before he was put on the ground during the subdual and the restraint. Do you recall that discussion?

FOWLER: Yes.

BLACKWELL: Were you able to see what was happening with Mr. Floyd as they were trying to get him into what's referred to as a Squad 320?

FOWLER: Yes.

BLACKWELL: Were you aware of whether or not Mr. Floyd was experiencing being choked as he was being put into the back of Squad 320?

FOWLER: I did not see a limb around his neck, from my recollection. That's not something I noticed.

BLACKWELL: Your Honor, counsel, I have a couple of stills from Exhibit 43 that's already in. And these are numbered Exhibits 281 and 282. And I would offer those stills from Exhibit 43 already in evidence.

JUDGE PETER CAHILL, HENNEPIN COUNTY: Any objections?

COURT OFFICIAL: 281, 282, counselor?

BLACKWELL: Yes. May I, your Honor?

CAHILL: Yes. 281 and 282 are received.

BLACKWELL: Thank you, your Honor.

So if we could first, Fred, if we could show 282.

Can you see here in 282 this area, do you see where I've circled, Dr. Fowler?

FOWLER: Yes.

BLACKWELL: And do you see this arm that is around Mr. Floyd's neck?

FOWLER: Yes.

BLACKWELL: Do you recognize this person to be Mr. Chauvin?

FOWLER: It appears to be, yes. BLACKWELL: And if I could show you 281. I'm sorry, your Honor. And

here we see the top of Mr. Floyd's face. And then there's a hand here on his neck. Do you see that?

FOWLER: Yes.

BLACKWELL: And so you -- these weren't images or scenes that you had paid special attention to before as you looked at what was going on in Squad 320. You have not seen any arms or anything around Mr. Floyd's neck?

FOWLER: No, I had seen these particular sections. I'm sorry if I misinterpreted your question. You said before he went into Squad 320. I apologize if I misinterpreted your question.

BLACKWELL: And so do you know whether when Mr. Floyd was into the back of Squad 320 and before he was pulled out, whether he complained about being choked? Did he say, I'm getting choked?

FOWLER: I believe he did, yes.

BLACKWELL: And it doesn't take a medical doctor such as yourself to know that if somebody is feeling they are getting choked, well, that would be a good reason why they would say they can't breathe?

FOWLER: Yes.

[15:45:00]

BLACKWELL: I want, Dr. Fowler, to see if you could clear up a couple of things for me just in the timeline of what happened with respect to Mr. Floyd in restraint on the ground.

Was the leg extension, the anoxic seizure, as we referred to it, was that before he lost consciousness or was it after he lost consciousness?

FOWLER: After.

BLACKWELL: OK. And did you make a note of when Mr. Floyd's -- when was his last vocal sound, do you remember?

FOWLER: Somewhere between a minute -- 45 seconds and a minute before -- I've got the information written down somewhere. Before he went unconscious was about the last time that he actually vocalized.

BLACKWELL: If we focus in on the period of the subdual restraint and the neck compression, was there ever a time during the 9 minutes and 29 seconds where you saw Mr. Floyd either sleepy, unarousable or anything that's akin to being in a coma?

FOWLER: So from the period after he has those hypoxic seizures?

BLACKWELL: Or from the time he's first put on the ground, that he's pulled out of the car, Squad 320, he's subdued and restrained on the ground, Mr. Chauvin is on his neck and back, did you ever see Mr. Floyd at any time manifest either sleepiness, a lack of awareness that he wasn't arousable and that sort of thing?

FOWLER: No, not until he lost consciousness.

BLACKWELL: And typically, doctor, when somebody passes away from a fentanyl or opioid overdose, one of the hallmarks of that is that they are very sleepy and they will tend to be unarousable and pass away in essentially a coma, right?

FOWLER: Correct. If they are passing away from fentanyl overdose, that's what happens.

BLACKWELL: And Mr. Floyd was manifesting none of those outward symptoms, was he, on the ground?

FOWLER: Correct. It does not exclude the fact that it was still having a depressive effect on his respiratory system.

BLACKWELL: Well, before he lost consciousness, his respiration rate, I think you told us that you agree with Dr. Tobin, was somewhere in the ballpark of 22 breaths a minute, right?

FOWLER: Correct.

BLACKWELL: That is normal, isn't it?

FOWLER: Yes.

BLACKWELL: If fentanyl was affecting his respiration, then you would expect a respiratory rate that would have been appreciably less than 22 breaths a minute if it's depressing his respiratory system, right?

FOWLER: Unless he should have been breathing at 30 at that particular stage because of his exertion and other stressors.

BLACKWELL: And you have no -- really basis or baseline to suggest that Mr. Floyd should have been breathing at 30 instead of the normal 22, right?

FOWLER: A person who is getting short of oxygen to their brain will often increase or usually increase their respiratory rate to more than 30.

BLACKWELL: I want to talk with you a bit about the methamphetamine. First, let me clear up if I can, this issue of pills again in the car on May 25th. When Dr. Baker performed the autopsy, isn't it true that there weren't any pills found in Mr. Floyd's stomach?

FOWLER: Correct. Dr. Baker did not identify any pill, tablet, call it what you want, residue within the stomach.

BLACKWELL: And obviously, any pill that's found in a car is a pill that's in Mr. Floyd's body?

FOWLER: Correct. Whatever the residual amount in those tablets was, was not in his body.

[15:50:00]

BLACKWELL: Now I think you made a statement with respect to the methamphetamine that it was not accompanied by a metabolite commonly seen if the meth had been in the system for an appreciable period of time.

FOWLER: Yes.

BLACKWELL: And I want to kind of be clear on this. Have you -- since making the statement in your report learned that in fact the metabolite of methamphetamine, that is amphetamine as the metabolite was present in Mr. Floyd's bloodstream from the toxicology results?

FOWLER: I have heard a statement to that fact, yes.

BLACKWELL: Did you investigate the statement to determine whether or not it was true?

FOWLER: Yes.

BLACKWELL: And did you find that contrary to what you had written in your report you in fact found that the metabolite of methamphetamine was present from the toxicology results from Mr. Floyd?

FOWLER: In very low levels, so it did not change my opinion.

BLACKWELL: Well, the methamphetamine itself was only present in very low levels, isn't that true?

FOWLER: That is true.

BLACKWELL: And so there's not a lot of meth, then there won't be a lot of the metabolite either. That makes sense, doesn't it?

FOWLER: Correct, and/or again substantial amount of whatever methamphetamine is there has not yet been metabolized.

BLACKWELL: So what was the level of methamphetamine that was found in this toxicology results, do you remember?

FOWLER: Not off hand, no.

BLACKWELL: How about 19 nanograms per milliliter. Does that sound right?

FOWLER: It sounded right. I did not want to say it because I did not want to be inaccurate.

BLACKWELL: Yes. Thank you, doctor.

19 nanogram of methamphetamine is within the range of what you would see in a patient whose doctor prescribed a therapeutic dose of methamphetamine, true?

FOWLER: That is true if methamphetamine is used in a therapeutic environment. BLACKWELL: Your Honor. Can I have just one second.

CAHILL: Sure.

BLACKWELL: So last question, Dr. Fowler, and then I will sit down for now.

I wanted to again just address the timeline from your report, and I will read it to you, and my question would be whether or not this is the timeline that you still -- that you stand behind, if I may.

So at 8:24:09, the last audible vocal sounds identifiable as Mr. Floyd's are heard. Soon thereafter voices from bystanders tell police he is not breathing. Mr. Floyd exhibits extension movements of right lower extremity at 8:24:21 and movements of his right arm at 8:24:33.

At 8:25:16 Mr. Floyd appears to have passed out. So representation from your report, is that your best knowledge and information, sir?

FOWLER: That's the information I extracted at that time, yes.

BLACKWELL: And you stand by that, too, at this time, correct?

FOWLER: I have no reason to disagree with that at this time now.

BLACKWELL: Dr. Fowler, thank you.

CAHILL: Counselor, should we break at this time or can you be brief? Break?

UNIDENTIFIED MALE: Yes.

CAHILL: All right.

UNIDENTIFIED MALE: Break

CAHILL: We'll take a 20-minute break. Let's try and think about 10 after.

BROOKE BALDWIN, CNN HOST: All right. 20-minute break.

Elie Honig. Where do we begin? How about just credibility of this expert witness? Maybe big picture. What are the five points that were made in this cross?

ELIE HONIG, CNN LEGAL ANALYST: Yes, Brooke, so first of all, people hear of cross-examination and they think it's angry and aggressive, right. They think of "A Few Good Men" and "I want the truth."

[15:55:00]

It does not have to be. This was clinical and systematic. Five biggest points that I saw come out of it. First of all, the prosecutor questioned the expert about several of the studies that he relied on, but the prosecutor said none of them involved nine minutes and 29 seconds, did they? And the expert had to admit, no. None of them went that long.

Second of all, he got the expert to admit he did not take key measurements relating to what they called the EELV, the breathing, the oxygen rates.

Third, he got this expert to admit he obvious point that he's not a cardiologist, he's not a pulmonologist. Those people would be more expert in the heart and the lungs. And remember, the prosecution called experts in both of those fields.

Fourth, he got this expert to admit that the police officer should have rendered immediate medical attention and that he faulted them for not rendering immediate medical attention.

And finally the prosecutor got this expert to admit that if it was an overdose the person would appear to be sleepy or in a coma, and the expert did not see either of those things with George Floyd.

BALDWIN: Let me -- before, chief, I come over to you, I'm digesting all of your points, Elie, so well executed.

Let me just play a key moment where the prosecutor really, really -- Jerry Blackwell really attacked this -- this expert witness on his point about carbon monoxide. Watch this.

(BEGIN VIDEO CLIP)

BLACKWELL: You haven't seen any data or test results that showed Mr. Floyd had a single injury from carbon monoxide. Is that true?

FOWLER: That is correct because it was never sent to the laboratory for that test.

BLACKWELL: I asked you whether it was true, sir, yes or no?

FOWLER: It is true.

BLACKWELL: Now as you were talking about carbon monoxide, you were referring to the squad car that Mr. Floyd was near, weren't you?

FOWLER: Yes.

BLACKWELL: Have you ever laid eyes -- I don't mean pictures, physically, on the squad car that you were referring to?

FOWLER: I have not.

BLACKWELL: Do you know whether it has a single exhaust or double exhaust?

FOWLER: The information that I was provided it has a double exhaust with twin exhaust pipes on each side, so it has four exhausts.

BLACKWELL: Right. Now, did you know the make and the model of the car?

FOWLER: It is a Ford Explorer Interceptor.

BLACKWELL: Is it a hybrid?

FOWLER: Yes, it is.

BLACKWELL: OK. Now, did you see any air monitoring data that actually would give you any information as to what amount of carbon monoxide, if any, would have been in Mr. Floyd's breathing zone?

FOWLER: No because it was not tested.

BLACKWELL: It was a yes or no question. You haven't seen any, have you?

FOWLER: I have not seen any data.

(END VIDEO CLIP)

BALDWIN: It was a yes or no question. And ultimately, Elie, he gets, no I have not seen the car, I have not seen any emissions data. What did you think of that?

HONIG: The prosecutor cut the legs right out from under this expert, and that was early on in the cross-exam. Remember, a key point of the expert's testimony this morning was this theory about carbon monoxide. The prosecutor right there established that's based on nothing. You have no data, you have no science behind that and if the jury is watching that, I think they are seriously questioning his credibility.

BALDWIN: Chief, what did you think of the whole back and forth?

CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Well, you know, one of the things that's impressed me throughout this -- this trial particularly with expert witnesses is the skill of which the prosecutors ask questions of the people providing the testimony. Very skillful.

I was looking for that when during cross-examination of this witness. I knew that the prosecution was going to really, really go after him and go after him hard. They are very, very skillful, and I think that's important, very important for the jury to hear the responses to those questions.

Because if you don't have that, then they are left with an impression that is really not one that, I guess is for the prosecution that you would want to leave him with. That there's another cause of death now, they throw carbon monoxide in it even though none of the officers obviously suffered any effects from it but, you know, I just think they are doing a masterful job, personally.

BALDWIN: And -- and Elie, all it takes though, I'm just thinking of the jury, just takes --

HONIG: Yes.

BALDWIN: -- for people watching, wanting the book thrown at this former police officer, just 30 seconds here. All it takes is one juror to be not totally convinced, right, to make this --

HONIG: Yes, let me just remind our audience. This case has come in very strongly for the prosecution in my opinion, but you never know what a jury is going to do. A jury is 12 human beings. As unpredictable as human nature is, multiply that by 12 and that's the unpredictability that goes into any jury deliberation.

There's a group dynamic, there's an emotional aspect of it. So remember also you need unanimity. Has to be 12-0 to convict. Anything less than that will be a hung jury or 12-0 to acquit so all it takes is one. Nothing can be taken for granted.

BALDWIN: Just such an important reminder. Thank you for your eloquence through all of this, and Charles Ramsey, commissioner, to you as well, sir. We will pick this back up tomorrow.

Thank you so much for being with me these last two hours. I'm Brooke Baldwin here in New York. Let's go to our nation's capital.

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