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Live Coverage of Derek Chauvin Trial; Prosecution Requests Introduction of New Evidence, Defense Argues Against; Judge Rules Against Evidence and For Dr. Tobin. Aired 10:30-11a ET

Aired April 15, 2021 - 10:30   ET

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

[10:30:00]

PETER CAHILL, HENNEPIN COUNTY JUDGE: Did Dr. Baker spontaneously call you to tell you that there might be something deep within the computer records --

JERRY BLACKWELL, PROSECUTING ATTORNEY: Yes, your honor.

CAHILL: -- that was not disclosed? Or did you seek him out and ask him for his --

BLACKWELL: We did not seek him out and ask anything. He had heard the testimony, and thought that this record might exist because he thought that -- well, he was aware that there's a panel of the -- of the tests that are run by the machine, and then those that would go to the E.R. physicians would be the ones that they requested to see the values on, so.

CAHILL: And --

BLACKWELL: But we did not contact him, it was the other way around.

CAHILL: And we're talking about carboxyhemoglobin readings. Is there also anything, as part of that, specifically about carbon monoxide concentrations?

BLACKWELL: Yes, the carboxyhemoglobin reading would show the carbon monoxide concentrations, your honor, and the record -- unfortunately mine has my markings on it -- but it would return a value for the carbon monoxide content, and that would show whether or not that result is in the normal range or not. And that would be the reading in the readout from the test results.

CAHILL: All right. And so it (ph) would specifically say carbon monoxide?

BLACKWELL: Well, it gives the -- the letter symbols for it. So it would -- if there's a clean copy --

CAHILL: What specifically does it say? Maybe you could just read it out for the record.

BLACKWELL: It says specifically in the oximetry values, it says, F-C- O, and then H-lower case-B, 1.5 percent, and then it gives the normal range of zero to 2.0 percent as the normal range.

It indicates on the record also a name for Mr. Floyd for this record, it would be last name Bronze and first name Tennessee, because at the time the tests were run, they didn't know that it was George Floyd.

CAHILL: I note on Dr. Fowler's report that was disclosed to the state in February, that, on page 15 at the top, it says, "If there is a defect in the vehicle (ph), this gas will be present or if a person is close to the exhaust. For completeness, Mr. Floyd's blood CO level should be tested." So the state received that part of Dr. Fowler's report back in February, is that correct?

BLACKWELL: That's correct, your honor.

CAHILL: All right. Anything else, Mr. Blackwell, before I turn to Mr. Nelson?

BLACKWELL: Your honor, no, nothing further.

CAHILL: All right, thank you.

Mr. Nelson? Mr. Nelson?

ERIC NELSON, DEFENSE ATTORNEY: Thank you, judge. Yes, for the record in terms of rebuttal, a couple of things I would like to address. First is this new information that was just received. I would, for the record, indicate that I received these test results at 7:53 this morning.

My -- as I understand it, Dr. Fowler is on an airplane and having some difficulty reaching him at this particular moment. I have spoken with other people from The Forensics Panel, they're looking into these things.

Nevertheless, your honor, the point of this is, is that this issue was specifically raised, as the court points out, back on February 22nd, some 20-some-odd days. In the -- or 40-some, 60 days, I don't even know how long it's been. I'm a little time-deprived at this point.

The point being, is that the state has had more than sufficient notice. Dr. Fowler is opining that this could have played a role in his report. He says and suggests that, for completeness, it should have been tested or should be tested. The state retained and continues to retain any blood samples -- they are not within the control of the defense. The state has had ample opportunity to rebut any suggestion.

As far as the -- as far as the information relevant to the -- that Mr. Blackwell references in terms of the oxygen levels, the 98 percent oxygen levels, what Dr. Fowler testified to yesterday was how you can't rely on the oxygen levels because it's -- the carbon monoxide binds to the oxygen and it can give a false reading. You need this hyboxy (ph) test -- hyboxy (ph) oxygen testing.

So the -- the bottom line is, is that this is information that has been within the state's control. The state has had ample notice that this could have played a part of Dr. Fowler's testimony. It is incredibly prejudicial to the defense at this point, now, after Dr. Fowler has testified and left the state, to -- to bring forth evidence.

[10:35:09]

Again, the jury being the trier (ph) of the facts, Dr. Fowler was pretty clear, he was not saying that this was the cause of death. He's simply opining that it wasn't considered by the state, and apparently it was considered to be a ridiculous concept by the state of Minnesota, that didn't -- they didn't think to test it.

Since this trial has started, in addition to this new -- this new evidence, the state has had multiple conversations with a city employee about the vehicle itself, they've gone and taken pictures of the vehicle. Again, all of this, they've had ample opportunity to do but this is what they're doing in the middle of trial, even though they've known for a long time that this was an issue.

I do have -- I did receive also, last evening, a summary of Dr. Tobin's anticipated rebuttal points that I -- three of the four points, I do not -- I do not see as proper rebuttal but we can address that later, or --

CAHILL: Well, let's address that now as long (ph) and I'll ask the state to respond to --

NELSON: Sure.

CAHILL: -- something other than your carbon monoxide issue.

NELSON: Yes. So last night, I received a one-page -- a one-page memorandum, referencing a conference that they had with Dr. Tobin. It's date-stamped 5-04-17. They identify four areas of potential rebuttal.

The first being that Dr. Tobin will testify regarding the significance of the hypoxic changes from a physiology and clinical standpoint, including his conclusion that the anoxic seizure is not indicative of a primary cardiac event based on the timeline of significant events.

I believe that Dr. Tobin has already extensively testified as to the -- his opinion of the significance of the anoxic seizure. I mean, that was -- that formed a large basis of his testimony, and how he concluded that.

Now, the fact that there is a differing opinion that it's a cardiac event instead of a hypoxic event, is that's the nature. Again, state has had ample notice, this is not rebutting, it's just simply reintroducing what Dr. Tobin has already testified to extensively.

CAHILL: Well, my recollection of Dr. Fowler's testimony is that he agreed that it's a hypoxic reaction, but it's just the mechanism, I think we're talking about the mechanism. Was it due to positional asphyxia versus --

NELSON: Correct, your honor, correct. CAHILL: -- versus cardiac arrythmia. But I think they all agree that

it was a myoclonic seizure as a reaction to hypoxia.

NELSON: Agreed, your honor, but the mechanism being the point of what Dr. Tobin has already extensively testified to, right?

CAHILL: Right.

NELSON: And the fact that Dr. Fowler had a different opinion, this is not proper rebuttal because it's already been testified to at length, what the mechanism of the seizure was has already been opined by Dr. Tobin.

CAHILL: OK.

NELSON: The second area that Dr. Tobin has indicated is he said, "Dr. Tobin will testify regarding the scientific research supportive of his analysis that showed how the hypopharynx can be narrowed.

Again, I believe that he has already extensively testified to his position as to the narrowing of the hypopharynx. Whatever this additional research is, I have been provided with a single journal article relevant to the treatment of COVID patients. That was provided to me last night as well.

If it's limited to that single article, I guess that could be construed to be additional evidence. But again, Dr. Tobin extensively testified as to his view of the narrowing of the hypopharynx.

The third area is -- is written as follows, "Dr. Tobin has reviewed and will testify as to his analysis of the two studies of Dr. -- that Dr. Fowler cited regarding outdoor exposure to carbon monoxide. Dr. Fowler testified that Mr. Floyd could have had a level of 10 to 18 percent carboxyhemoglobin as reflected in the slides disclosed on 4/13, and that in his opinion this level could have contributed to Mr. Floyd's cardiac-induced death. Dr. Tobin will rebut this analysis and provide his opinion that, based on lab tests done at the emergency department, Dr. Fowler's analysis does not hold."

[10:40:07]

So this e-mail, being sent at 4:53 p.m. last night, or approximately 5:00 last night, suggests that Dr. Tobin may have seen these test results or the test results done at the emergency room, there's no indication. Is it these new test results or is it some other test result?

Nevertheless -- nevertheless, it's our position that these new test results should not go in front of the jury, first and foremost. And second, if they were, I would be moving for a mistrial based on this because, again, the state has had ample notice.

Finally, your honor, the fourth -- the fourth paragraph reads, "In his report regarding the size of Mr. Floyd's heart, Dr. Fowler cited two studies, the Malina (ph) and DeMaio (ph) study and the Northwestern study from 2021. However, Dr. Fowler did not cite the Mayo study that he referenced in direct examination and he did not offer the opinion that Mr. Floyd had an enlarged heart. Dr. Tobin will clarify the facts underlying these studies and their application to Mr. Floyd."

Again, this is the very nature of our system, right? There's an opinion and there's a counter-opinion that we both -- Dr. Tobin has already cited this study, he has talked about this study, he has talked about -- he acknowledged the existence of the other studies. So these -- this is not proper rebuttal because it's simply -- it's already been testified to, they're trying to recreate and re -- and get Dr. Tobin in front of the jury again to talk about things he's already talked about.

The CO2, fair enough, right? To come limited extent, based upon, you know, Dr. Fowler's testimony.

CAHILL: All right.

Mr. Blackwell, let's talk about those other -- aside from the lab tests, those four points that the state is seeking to present rebuttal.

BLACKWELL: Obviously, your honor, we wouldn't be having any of these discussions this morning had there not been new opinions from Dr. Fowler raised from the stand. And one of those new opinions -- and one which I think I was objecting to at the time -- was his discussion of the Mayo study.

This had to do with the whole issue of the enlarged heart, the cardiomegaly. And he had disclosed to us his reliance on Malina (ph) and DeMaio (ph) and also the Northwestern study, that was in his report. And as your honor well knows, the whole point of having reports and disclosures -- for both sides -- is so that both sides have notice for what's going to be testified to on the stand.

So he testified about the Mayo study anyway. He expressed his opinions about the Mayo study. It was a free kick at the goal because we didn't know that he was going there.

CAHILL: And what study again? Could you spell that one, because I'm mixing up DeMaio (ph) and --

BLACKWELL: Yes. Yes, the Mayo study is M-A-Y-O, it's as though it should be pronounced Mayo.

And what Dr. Tobin would talk about, would be that particular study, and the fact that in the opinions that Dr. Fowler had presented in his report, he didn't offer the opinion that Mr. Floyd had an enlarged heart. He offered it from the stand, he didn't offer it in his report. And -- and had we known at the time from the disclosures that that's what he was going to testify to, then we would have addressed it during his testimony during his -- direct, when he was here before.

But --

CAHILL: But let me -- let me ask you this. So what specifically do you want Dr. Tobin to testify to regarding an enlarged heart? BLACKWELL: He will simply testify that if you then look at the -- the

overall studies including the Mayo study that we've been talking about -- that Mr. Floyd's heart weight does not fall within a range that is abnormal.

So he'll talk about the -- the broader sort of pool of studies, in the framework of discussing the Mayo study that we had learned about at least that Dr. Fowler was going to rely on in his testimony.

CAHILL: I guess one question I have is, he's the pulmonologist, he's not the cardiologist. Are you recalling your cardiologist to talk about the enlarged heart and give an opinion about an enlarged heart?

BLACKWELL: No, your honor, just -- just the pulmonologist.

CAHILL: OK.

BLACKWELL: And obviously it's (ph) cardiopulmonary system, and they both kind of operate kind of hand-in-glove. So we -- we felt frankly in the interest -- and respecting your honor's admonition that we try to be focused, substantively and temporally --

[10:45:10]

CAHILL: Sure.

BLACKWELL: -- to simply call one person to talk about this and not multiple ones.

CAHILL: Right, OK. What about the other --

BLACKWELL: On the issue of the hypoxia, for the first time from the stand, we heard from Dr. Fowler that an anoxic seizure was evidence of a primary cardiac event. Your honor is right, and what your honor had understood that both sides do understand kind of what happens when you have an hypoxia event and how one passes away.

What we had not heard was Dr. Fowler attributing it to a primary cardiac event. That was not in his report, and it was disclosed for the first time from the stand. And as well as it relates to the hypopharynx, that was crystal-clear from the stand, that Dr. Fowler said -- haven't heard Dr. Tobin testify -- I went out to canvas the literature and I found nothing there supportive of his theories for somebody who has studied the science of breathing for 46 years.

So what Dr. Fowler (sic) would testify there is, what is the nature of the research in that respect, in direct response to the -- the new statement from Dr. Fowler from the stand.

CAHILL: Let's talk about the opinion regarding the carbon monoxide effect and Dr. Tobin's opinion, which would appear to be within the scope of his expertise as a pulmonologist. But is it going to be solely talking about the lab tests?

BLACKWELL: It is solely talking about the carbon monoxide content of his blood, your honor. Now, I don't want to -- try to answer the court's question as clearly as I can.

CAHILL: Oh, go ahead.

BLACKWELL: It isn't just talking about the test results. The test results are subsumed in it, but the bottom line in what he's talking about is what is the evidence as to whether or not the carboxyhemoglobin content, the carbon monoxide content of his blood, could have been in the range of up to 15 percent.

And he's saying that based upon the medical evidence available -- it was available to everybody -- looking purely at the oxygen --

(CROSSTALK)

CAHILL: What was available to everybody?

BLACKWELL: The oxygen saturation content of his blood.

CAHILL: OK.

BLACKWELL: And contrary to counsel's comment on the science, the way that the oxygen saturation works, we have hemoglobin. So either the oxygen's going to combine with the hemoglobin, or carbon monoxide will. And if carbon monoxide has bound to it, then you can't have an oxygen saturation of 98 percent.

CAHILL: No, I understood the testimony.

BLACKWELL: So that is what he would speak to. The test results are merely corroborative of that, because the test results show a specific testing for carbon monoxide itself, and it isn't simply derived from looking at the oxygen saturation content, which is at 98 percent, and therefore the most carbon monoxide could have been is 2 percent.

So it is addressing the same issue from the two different perspectives -- oxygen saturation versus actual testing -- and the test results of the carbon monoxide itself.

CAHILL: Well, I agree with you that if the tests had been disclosed earlier, before Dr. Fowler testified, there would be no problem with putting that in his rebuttal. Probably there would have been no need because Dr. Fowler would have been advised of the results, and testified accordingly so there would have been no need for a rebuttal, so.

But other than that, so -- are those the four topics, though, did counsel set those out pretty clearly?

BLACKWELL: Yes, your honor.

CAHILL: All right, thank you.

All right. First of all, in dealing with these lab test results, I find that the -- Dr. Fowler's report gave sufficient notice to the state that carbon monoxide, the carbon monoxide that potentially was in George Floyd's blood, could have affected cause of death. I read page 15 of his report, which I don't have at my fingertips at this point, that basically they said it -- Dr. Fowler came right out and said it should be tested.

That gave the state notice with sufficient time, in February, to either test the samples that are still there or to dig a little deeper. It's just by serendipity that Dr. Baker calls the state and says, oh by the way, it does exist. It should be in there.

it seems to me very odd. I'm not claiming any bad faith on the state's part, but it seems odd that Hennepin County Medical Center, when they're asked to turn over all their records, that they don't include records that maybe are just buried a little deeper. I think their response to the subpoena was probably insufficient in and of itself, and they should check their standard operating procedures so that in the event this happens again, that they will supply all the information they have.

[10:50:21]

But in any case, the defense gave notice that this was going to be an issue, and specifically talked about testing the sample. The state had sufficient time to investigate and disclose to -- even if it's just because Dr. Baker called the state and said we could actually find this at 8:00 this morning, when the state is -- or the defense expert is done testifying, has left the state -- it's untimely to give the notice.

And it prejudiced the defense by the late disclosure, even if it's not due to bad faith. But the late disclosure has prejudiced the defense, it's not going to be allowed. So Dr. Tobin will not be allowed to testify as to those lab results.

If there is anything he wishes to add about carbon monoxide as far as environmental factors, but if he even hints that there are test results the jury has not heard about, it's going to be a mistrial, pure and simple. This late disclosure is not the way we should be operating here.

In that case, Dr. Tobin may testify as to carbon monoxide if he sticks to the environmental factors, and as a pulmonologist, looking at the videos for example and seeing Mr. Floyd's location and not knowing whether the vehicle is even on or not, which the state brought out in cross-examination.

All those factors, he can talk about environmentally and what the likelihood is that it would affect his carbon monoxide concentration in Mr. Floyd's blood, that's fine. But nothing about these lab test results that were just disclosed, 8:00 a.m. this morning, after the defense expert is done.

With regard to the DeMaio (ph), I will allow -- I have a little concern that we're having a pulmonologist opine whether it's an enlarged heart or not. But given his background, which, as I think Mr. Blackwell properly (ph) stated is a cardiopulmonary system, it is a system and I think he has some expertise in the function of the heart and its relation to the lungs. And so I think it is appropriate that he be allowed to opine whether

or not the heart was enlarged or not, based on those studies. And specifically responding to those studies.

As far as the scientific research, the defense did bring up as a new issue whether or not narrowing of the hypopharynx is supported in literature, and Dr. Fowler said he did a check and he didn't find anything. I think it is permissible that Dr. Tobin be allowed to come and say, since then, since Dr. Fowler's testimony, he has done his own search or he relied on this, and there is literature and he can talk about the literature in a summary fashion.

With regard to the hypoxic seizure, it was pretty clear from Dr. Tobin's testimony that he had an opinion that there were movements of George Floyd's legs, that those were myoclonic or anoxic seizures due to the lack of oxygen. Dr. Fowler did not really dispute that, he also indicated that it was a lack of oxygen to the brain that causes such seizures.

The only difference between the two was the mechanism, did the lack of oxygen, was that caused by positional asphyxia versus cardiac arrythmia. And as I recall, Dr. Tobin excluded cardiac arrhythmia or a cardiac event as the cause of the lack of oxygen. Since he has excluded a cardiac event as the cause of the lack of oxygen, he's already -- that evidence is already in the record.

I don't have to remind both sides that the purpose of rebuttal evidence is not to restate what has already been testified to, it's to bring up new evidence to rebut something that came up in the other side's case.

Accordingly, as to the hypoxic seizures, that's not going to be allowed. The scientific research supporting hypopharynx narrowing will be allowed. The lab tests are not allowed to be discussed, but Dr. Tobin can talk about carbon monoxide and the likelihood of a high carbon monoxide reading based on environmental factors, if he wishes, because that was gone into a great extent. And finally, the reports and he may opine whether, in his opinion, George Floyd's heart was enlarged or not.

[10:55:12]

Do we have the -- pretty much the ground rules set?

BLACKWELL: Yes, just one question for clarification. On the carbon monoxide, there were test results that existed before the ones that are at issue from last night (ph)-slash-this morning. What Dr. Tobin -- these are the ones that relate to the oxygen saturation, so that was known before last night.

And so I haven't talked to Dr. Tobin this morning about what he's going to say or when, I might ask the court for a few minutes before we start. But what -- what he was able to come to last night, without saying anything at all related to these test results at issue, was we had the results already, both sides do, on the oxygen saturation in his blood from May 25th, 2020. And -- CAHILL: Well, let me ask you this. Is his opinion going to be that when the oxygen saturation levels are this high, that precludes high CO because a high carbon monoxide reading would depress the saturated oxygen?

BLACKWELL: That's correct, they are -- would be inversely related. So a high oxygen saturation --

CAHILL: -- would indicate a low carbon monoxide?

BLACKWELL: Yes.

CAHILL: Mr. Nelson?

NELSON: As I understood Dr. Fowler's testimony, the -- at lower levels of carbon monoxide, because the pulse oximeter does not -- it's not going to differentiate based on the color of the blood between oxygen and carbon monoxide.

CAHILL: This is the bright cherry-red testimony?

NELSON: Correct (ph).

CAHILL: I think that's appropriate cross. But I think if that is in fact Dr. Tobin's opinion, that the oxygen saturation readings -- which have been disclosed earlier -- would indicate a low carbon monoxide reading because they are inversely proportional -- or -- and it's appropriate however to say those readings are based on pulse ox, color of the blood, color of the fingernail. And did you -- the bright cherry-red, essentially confronting him with that testimony, I think is appropriate cross. But it does not preclude the state from recalling Dr. Tobin for that purpose.

BLACKWELL: Yes, that's the clarification, your honor.

CAHILL: All right.

BLACKWELL: Thank you.

CAHILL: Yes, that would be permitted.

All right, anything else before -- and you want a few minutes to talk to the -- to Dr. Tobin?

UNIDENTIFIED MALE: If I may, your honor.

CAHILL: Why don't we start up at 10:00? I assume he's close by.

(CROSSTALK)

CAHILL: You can do it quickly, Mr. Blackwell.

BLACKWELL: I was hoping for a few more minutes.

CAHILL: I think since the defense is going to rest and you'll proceed directly to Dr. Tobin, are we calling anybody else? BLACKWELL: No, no one else, your honor. And if we could have until

10:15 --

(CROSSTALK)

CAHILL: Ten-fifteen it is.

BLACKWELL: All right.

CAHILL: All right, 10:15, we'll reconvene. Thank you.

KATE BOLDUAN, CNN ANCHOR: Hello everyone, Kate Bolduan here. We've been listening to really interesting developments in this kind of pretrial conversation in the murder trial of Derek Chauvin.

Let me bring in CNN senior legal analyst, former federal prosecutor Laura Coates as well as Charles Ramsey, CNN law enforcement analyst for what we've heard.

Laura, talk to me about what we just saw play out in the courtroom?

LAURA COATES, CNN SENIOR LEGAL ANALYST: So prosecutors have to provide all information in advance of trial, and they can use their case, in chief (ph) when they present all their witness testimony, to really drive home the point, the prosecutorial strategies that they want to pursue.

Once that happens and the defense takes the stand, they are now in control, the defense. So what this is all about is, now the prosecution has an opportunity to do what's called a rebuttal case, meaning they can now try to undermine the strategies and the theories that have been promoted by the defense.

But there are some constraints there. You can't use your rebuttal case as a prosecutor to introduce what you're calling new evidence, but really things that you could have just raised in your own presentation of evidence, unless the defense has some basis to say it was a brand- new theory and now you're doing this.

The reason why? Judges don't want to give prosecutors two bites at the apple. They don't want redundant testimony. If you could have raised it earlier, you should have, you had your chance, sit down.

This time, the prosecution is saying, when Dr. Fowler raised the issue of carbon monoxide poisoning, although we had some semblance of what his theory might be, you (ph) presented some new theory. So we're not asking for a second bite at the apple, your honor, we want a first bite at the apple based on his new theory.

The problem is, the prosecution made a mistake. They did not take seriously the thought of carbon monoxide poisoning as potentially being a viable claim to be raised by this doctor, and they may have overlooked the data and did not present it through their own witnesses to rebut and pre-empt this.

[11:00:00] The judge is saying, look, you had your bite at the apple.