Return to Transcripts main page

CNN Newsroom

Pulmonology Expert Testifies Again in Prosecution Rebuttal. Aired 11-11:30a ET

Aired April 15, 2021 - 11:00   ET

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

[11:00:01]

LAURA COATES, CNN SENIOR LEGAL ANALYST: The judge is saying, look, you had your bite at the apple. If you even mention what you failed to disclose in a timely fashion, it will unduly prejudice this defendant and I will declare a mistrial.

What you just saw is the prosecuting attorney having a compromise and saying, Your Honor, fine, we won't present the new evidence that we have seen of the carbon monoxide levels of George Floyd being totally normal. What they already had was that his oxygen levels were askew, which means the higher the oxygen levels there were, the lower the carbon monoxide. Can we at least tell the jury that? The judge said yes.

But make no mistake about it. This judge is in no mood, it seems, to allow the prosecution several bites of the apple. If they could have raised the first time to Dr. Tobin, the pulmonologist, or the cardiologist, they should have done so. They failed.

KATE BOLDUAN, CNN ANCHOR: I mean, chief, the judge went as far to say if he, meaning Dr. Tobin who is the expert we talked so much about from the prosecution's side, if he -- if he hints there are test results that the jury hasn't heard, there will be a mistrial.

CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Yes, the judge is very clear. There is no question about that. And for the first, we actually saw the prosecution on their hills a bit, as a result of this late information coming in, which is really just very hard for me to believe, I'm certainly not an attorney, that in a case like this, especially as high profile as it is, that, you know, you would go through it so thoroughly that every single item of evidence, every single test that could be conducted would be conducted, so that you really had everything at your disposal that you needed to have.

I mean, this could cause some confusion amongst the jury. I certainly got confused just listening to the discussion. Again, will that plant a seed of doubt in the mind of a juror? And hopefully it doesn't. But, you know, we'll see.

BOLDUAN: Laura, I mean, yesterday when we spoke briefly as this was raised really for the first time on the stand, we heard from Dr. Fowler, when we heard about exhaust from the police vehicle where George Floyd was pinned down in that prone restraint, pinned down and that could have been a contributing factor.

Really, it was -- it was surprising. We never even heard of this. This was not presented in openings or anywhere. It was in Fowler's report.

Do you think -- are they missing the forest through the trees here talking about this one slice or does this get to, you know, one seed of doubt can be an entire case?

COATES: Well, here's thing. You and I are all in the court of public opinion. Not the courtroom. That entire transaction, that entire exchange did not take place in front of the jury.

So the jury does not know that this now happened. That's a good thing for the prosecution. It's also a good thing for the defense if they believe, that, of course, this data that undermines their theory even further, Kate, that carbon monoxide poisoning was an issue, this pro prosecution data shows that there was normal blood levels of carbon monoxide in George Floyd's system. The prosecution could have used this information to drive the point home. But the jury doesn't know this.

So one of the things that's is the benefit of all of us watching as opposed to the jurors is that seed of reasonable doubt has not been planted, as far as they know, they're left with their own credibility assessment about this particular theory.

And, frankly, yesterday, Attorney Blackwell did a great job of using the existing witness, Dr. Fowler, who gave that theory that, this was something that he did not have a basis to understand and he didn't know if the car was on. So, the jury still has that impression in their minds.

But, again, you can't overstate this. When you make errors of judgment perhaps that say, I could have given information, I could have brought the point home further, you don't want to do the second mistake of now drawing more attention to an absurd theory. If the jury now comes back, Kate, and now the prosecution makes a lot of, you know, hay about the idea of carbon monoxide poisoning, they say, hold on, you are saying I should be thinking about this? I had the impression yesterday that this was nonsensical.

The more you tell people don't pay attention or don't picture a 15,000 pound elephant the more people want to picture an elephant. The prosecution has a choice. Is the juice worth the squeeze?

In my opinion, if a mistrial is even on the horizon, you don't recall a witness for any reason because you've already been able to drive the point home. They've got a choice to make.

BOLDUAN: Is the juice worth the squeeze? This is really fascinating. And well done, Laura.

Chief, another big moment that happened even before this discussion is we heard Derek Chauvin speaking in the courtroom for the very first time since his -- his murder trial has begun, pleading, invoking his Fifth Amendment rights. [11:05:11]

For everyone, I want to play that moment that happened.

(BEGIN VIDEO CLIP)

NELSON: Have you made a decision today whether you intend to testify or whether you intend to invoke your Fifth Amendment privilege?

DEREK CHAUVIN, DEFENDANT: I will invoke my Fifth Amendment privilege today.

JUDGE PETER CAHILL, HENNEPIN COUNTY COURTHOUSE: Mr. Chauvin, I'm going to ask you directly. Because the decision whether or not to testify is entirely yours. In other words, it's a personal right.

Mr. Nelson makes a lot of the decisions in it trial. But one he cannot make for you is whether or not you testify. And he can give you advice. And you can take that advice or reject that advice. But the decision ultimately has to be yours and not his.

Is this your decision not to testify?

CHAUVIN: It is, Your Honor.

CAHILL: All right. Do you have any questions about your right to remain silent or to testify in your own behalf?

CHAUVIN: Not at this time I don't.

CAHILL: All right.

Is anyone promising anything or threaten you in any way to keep you from

CHAUVIN: No promise, nor threats, Your Honor.

CAHILL: Do you feel your decision not to testify is a voluntary one on your behalf?

CHAUVIN: Yes, it is.

(END VIDEO CLIP)

BOLDUAN: Chief, what did you think of this moment? Just thinking from your perspective.

RAMSEY: Well, I mean, I would have been surprised if he had chosen to testify. I think it opens him up too much in this case, because the prosecution would literally eat him alive on the stand. So I believe he made the right choice in this particular case. Otherwise, you know, I already think that the prosecution has an advantage it would really be, you know, over if he got on that stand. Because he doesn't -- he just doesn't have anything that he can say that would justify what he did. BOLDUAN: The only thing out there right, Laura, is it would --

potentially get to this question that I've heard so many people ask. Even the current chief of police in Miami, even raised it on our air, which is what was going through his mind?

Why did he stay on George Floyd's neck for nine minutes? More than nine minutes? Why? Why didn't he render aid?

State of mind, all of that. What is the argument for and against having Chauvin testifying? Clearly we know he is not now. But the consideration.

COATES: Well, play it out in your mind, Kate. If he said, well, I didn't get off him because I was trained not to. Well, the jury heard so many witnesses of his own department including his chief and training officer who's said, no, you're wrong. That's not what we were trained.

He could say, I had no idea that I was hurting him. Oh, okay, well, the bystanders and the nine minute video we heard had them imploring you to actually get off his neck. Okay, well you know what? I was waiting for the medical professionals to arrive and that's why I did so. Okay. The training again, witness testimony has said that you have a duty to provide care to somebody even if you don't believe you were the cause of the physical distress, you still had a duty to render aid.

Think of it, if he was in -- if George Floyd was in a jail cell by himself and went into cardiac arrest, would we allow our jail guards to say, well, I didn't cause it. I didn't do anything? Let him go ahead and die. We would not expect that.

So when you actually do a flow chart of all the possible responses he could give, assuming by the way he's likeable on the stand, assuming he doesn't come across as arrogant, assuming he could actually express humanity, those are all big assumptions when people have nerves and anxiety and generally personality comes into play.

If you follow all of that out, Kate, he may be the worst witness against himself. And it might undermine his opportunity to have jurors think, well, you know what? He's just a guy trying to do the right thing and, you know, the worst mistake of his life.

Jurors could be thinking that. And so he needs not be in a position according to his counsel to be the person that drives the nail in his own prosecutorial coffin.

BOLDUAN: When officers are -- do officers -- chief, I don't know how much data there is on this, but defendants most often do not testify in their trials. Do you -- would you say -- when it comes to officers on trial, do they ever?

RAMSEY: Well, I don't know if they would ever. I imagine there have been some situations when perhaps they do. You know, I'm involved more in arbitration type hearings when the officer provides testimony. That is light years different from a criminal trial. When you're on trial for something, even in this Wright case, you

know, it's up for grabs as to whether or not this officer would eventually testify or not. And she may be in a better position to testify than certainly Chauvin is. I don't know.

But certainly, it's understandable that Chauvin wouldn't -- you can't explain away nine minutes and 29 seconds of holding somebody down who is not resisting. And whatever was on your mind, it wasn't consistent with policy, it wasn't consistent with training, it wasn't consistent with anything.

I mean the duty for care, if you shoot an individual in a middle -- in a gun battle, once you can render the situation safe, you are required to render some aid to that individual that you just shot. And so, there's just no excuse for it.

BOLDUAN: Guys, stand by. Laura and Chief, they're going to be with us. There are big moment that's are about to take place in the courtroom. The defense will be resting their case in front of the jury. We're going to have this rebuttal now from the prosecution.

A very big day in the murder trial of Derek Chauvin. We're going to take you back to the courtroom in Minneapolis after a quick break.

(COMMERCIAL BREAK)

[11:15:30]

BOLDUAN: Right now we're standing by for the Derek Chauvin trial to resume. We've been discussing, it's been a very busy morning in court already.

For the first time since the trial began, we heard briefly from Derek Chauvin himself. That's video of that moment that happened just a little while ago. He invoked his Fifth Amendment right. He'll not be testifying in this case.

The prosecution also asked to introduce new evidence, asked the judge and they say they just became aware of overnight. The judge denied that request saying that it would prejudicial to this case at this late moment in the trial.

Let me bring in Josh Campbell. He's live outside the courtroom. He's been following all these developments everybody.

A lot happened this morning. The jury has yet to even be brought in, Josh, especially with regard to this discovery of new evidence. Bring folks up to speed.

JOSH CAMPBELL, CNN SECURITY CORRESPONDENT: Yeah, my friend.

You know, it's been busy in court already, as you say. Court is about to resume. So feel free to cut in when that starts. But just to get you up to speed on what just happened, we heard, as you mentioned, Derek Chauvin himself in his words invoking his Fifth Amendment right. So, he will not be testifying in this case. There is a second aspect, the prosecution attempted to enter into evidence new information that they just received overnight. And just to break that down, we heard a lot of medical and legal terminology just now. But for layman's terms, what they said is the Hennepin County medical examiner is watching the testimony yesterday of the defense expert who raised this idea that possibly carbon monoxide was at play here in George Floyd's death from that running, that idling police car. And according to the prosecutor, the medical examiner here realized they may have already tested Floyd's blood at the time of his death for carbon monoxide levels.

So, the medical examiner reached out to prosecutors and said we have this test on file. The reason it's important is because what we heard from the prosecutor that, test showed that Floyd's carbon monoxide levels appear to be in a normal range. So, it didn't appear that it was spiked or it was high.

However, the judge in, you know, very firm decision saying he would not allow that to be entered into evidence, saying that the prosecutors did not do their due diligence. They knew that the issue of carbon monoxide would have been brought up. Why didn't they go and ask the Hennepin County Medical Center, give us your records do, another pass do, a deep dive. Let us know what you have for this case?

The judge also offering a tongue lashing to the medical examiner himself, saying there are standard operating procedures in his words need review particularly for future cases.

So bottom line, there is not going to allow that piece of evidence in. He is going to allow the prosecutors to recall another witness. Viewers should stay tuned for this. This was that very compelling medical expert by prosecutors this Dr. Tobin, who had been testifying about the cause of death being Chauvin's actions that day on top of George Floyd.

He's going to be recalled to ask another question along the lines of oxygen levels in George Floyd's system. So we'll be staying tuned for that.

Now, we know that with the defense resting its case which will soon take place officially in front of the jury when they reconvene, that means prosecutors will now get to rebut. Of course, we'll listen in for any more developments.

This is totally unexpected today. No one thought the prosecutors would discover some new piece of evidence. And so, serious developments here that we'll continue to watch.

Of course, the judge said he is looking for Monday as the start of closing arguments in this case. So, things moving very quickly. But as in most cases, you never know when something comes out of left field that could completely your trajectory. That is what we saw a bit today. But, of course, the judge saying he was not going to allow an evidence.

Finally, the judge admonishing prosecutors when this new witness is recalled saying that any new piece of evidence is introduced and discussed in front of the jury that has not been entered into evidence, there will be a mistrial. There the prosecutors walking a very fine line. Dramatic turn of events just within the span of about an hour, Kate.

BOLDUAN: Yeah. Even a hint of new evidence, he said, could lead to a mistrial. Definitely laying down a real threat there.

Josh, thank you so much. We believe the court is resuming as we speak. Let's head into the courtroom.

CAHILL: Mr. Blackwell, does the state have rebuttal?

JERRY BLACKWELL, PROSECUTING ATTORNEY: Yes, Your Honor.

CAHILL: You may proceed.

BLACKWELL: Good morning, Your Honor, counsel, ladies and gentlemen.

The state will recall to the stand Dr. Martin Tobin.

(INAUDIBLE)

[11:20:15]

BLACKWELL: In just one moment, your honor.

CAHILL: Not a problem.

BOLDUAN: Chief Ramsey, just join me while we're waiting literally just waiting as way for Dr. Martin Tobin to take the stand and they will begin this rebuttal.

What could we be seeing, Laura?

COATES: Well, remember, this rebuttal is going to have to be that fine line that Josh Campbell (AUDIO GAP) cannot make reference to that newly discovered evidence that was not disclosed.

All he can do is talk about the aspect of the enlarged heart and respiratory system. The judge already pointed out that this particular witness though, remember, is a pulmonology expert. The lungs, the respiratory system, the actual, you know, chest cavity, all of those things.

So, if he veers into testimony about the enlarged heart more than ever, it will be odd.

BOLDUAN: Yeah. All right. They are swearing him in right now. Let's go.

CAHILL: Just for the record, if you could restate your name, and if you feel comfortable, you can take your mask off.

MARTIN TOBIN, PULMONOLOGIST: My name is Martin Tobin.

CAHILL: Mr. Blackwell.

BLACKWELL: Thank you, Your Honor.

Good morning, Dr. Tobin.

TOBIN: Mr. Blackwell.

BLACKWELL: Thank you for rejoining us.

I have got just a few follow-up questions to ask you in rebuttal. But first, (AUDIO GAP) jury. You're a pulmonologist.

TOBIN: Correct, lung specialist, yeah.

BLACKWELL: Critical care physician.

TOBIN: Yeah, intensive care doctor.

BLACKWELL: And you have studied the physiology of breathing for 46 years.

TOBIN: Correct. Yeah.

BLACKWELL: I wanted to first ask you about the issue of Mr. Floyd's potential exposure to carbon monoxide.

TOBIN: Yes.

BLACKWELL: Were you able to hear testimony regarding this yesterday?

TOBIN: Yes, I was.

BLACKWELL: Were you able to see this particular slide?

TOBIN: Yes.

BLACKWELL: And the highlighted statement at the bottom, for seven minutes, Mr. Floyd's Carboxyhemoglobin could have increased by 10 to 18 percent?

TOBIN: Correct, yes, I saw that.

BLACKWELL: Would you first just tell us right off the bat, do you agree with that proposition that's highlighted there?

TOBIN: No, I do not.

BLACKWELL: Now, would you tell us what Carboxyhemoglobin is?

TOBIN: Yeah. Carboxyhemoglobin is when the carbon monoxide combines with a protein in the blood that's called the hemoglobin. So it's the combination of the carbon monoxide and that protein in the blood.

BLACKWELL: And why is Carboxyhemoglobin again important?

TOBIN: It is important because when the carbon monoxide binds to the hemoglobin, it displaces the oxygen off the hemoglobin. So you need the oxygen on the hemoglobin. You don't want the carboxy in it. It replace -- it takes it over.

BLACKWELL: Do you have an opinion to a reasonable degree of medical certainty as to whether this statement that Mr. Floyd's Carboxyhemoglobin could have been increased by ten to 18 percent is reliable?

TOBIN: No, I believe it is not reliable.

BLACKWELL: Would you tell the ladies and gentlemen why that statement is not reliable?

TOBIN: I based it off the arterial blood gas that was obtained when Mr. Floyd was in Hennepin County.

(INAUDIBLE)

CAHILL: Sidebar.

BOLDUAN: Okay. They have gone into sidebar.

Laura, so far, this looks like the rebuttal is going as within the bounds that they were allowed to have it go.

BOLDUAN: You know, I am shaking my head here, Kate, because Jerry Blackwell -- he's a fine attorney. I mean fine in a very commendable sense. He is an excellent attorney but he's going to have to keep this witness or the shortest tightest leash possible.

The judge has been very clear, he will declare mistrial because any hint, any suggestion or mentioned of this Hennepin County data will be prejudicial to their defendant who gave notice to their witness expert about a theory of carbon monoxide poisoning and they didn't have the data disclosed to them in time to be able to fully flesh it out or recoil on their own theory.

So Mr. Blackwell is already seeing what happens with witnesses. Witnesses, like jurors, are wild cards. I don't care if you are the most seasoned expert testifying witness, sometimes they do not understand the implications of their slipups or making a statement.

[11:25:02]

They may think oh, I am just being responsive. But they may have a window that opens up to an appellate review. Defense attorneys are always on guard for this very point, Kate. They are looking, in the event of a conviction, they want to have their ducks in a row of how they can seek an appeal to overturn based on, especially, prosecutorial misconduct or any allegations based on that.

Appellate courts have in tolerance for prosecutors who do not disclose information in timely fashion and try to get it through a rebuttal witness. So this prosecution team has to be extraordinarily prudent and I hope that the witness as informative as he is can stay on that leash. BOLDUAN: Let's listen, let's listen in.

BLACKWELL: Dr. Tobin, as you prepare to tell us why these results in your opinion are not reliable, could you please help to jury to understand something about oxygen saturation testing in the blood?

TOBIN: Right. So if you have, like we saw in Mr. Floyd when he went to Hennepin County, he had an arterial blood gas obtained. So, that's taking a needle into the artery on the wrist and you take out the blood.

And then on the blood gas measures, you measure a number of different items on that. Like the pressure of oxygen in the blood and pressure of carbon tie oxide, the number of acid in the blood, called the ph. And you get all these different measurements, and you also get the oxygen saturation, and that is the -- how much of the hemoglobin the protein in the blood that carries the oxygen, how much of that hemoglobin is saturated with oxygen. And we know in Mr. Floyd that it was 98 percent saturated.

BLACKWELL: So at 98 percent saturated with oxygen?

TOBIN: With oxygen, when they measured it in the county. And that was 9:16 -- the timeframe.

BLACKWELL: So if we know that there is an oxygen saturation of 98 percent, does that tell us anything whatsoever --

TOBIN: Yes.

BLACKWELL: -- about what --

TOBIN: I'm sorry. I interrupt. I apologize.

BLACKWELL: Does that tell us anything whatsoever about what the carbon monoxide content could have been at a maximum?

TOBIN: Yes, it does. It tells us that if the hemoglobin is saturated at 98 percent, it tells you all there was for everything else is 2 percent. And so the maximum amount of carbon monoxide would be 2 percent. It tells you the maximum amount of Carboxyhemoglobin.

That was what was mentioned yesterday. The maximum amount is 2 percent. It doesn't even tell you that it is 2 percent. It could be something else. But 2 percent of Carboxyhemoglobin is within the normal range. You and I have levels of Carboxyhemoglobin of somewhere between 0 percent and 3 percent.

BLACKWELL: So, in other words, as to the statement that his Carboxyhemoglobin could have been increased by 10 percent to 18 percent, in your view that's not possible.

TOBIN: It is simply wrong?

BLACKWELL: And it was at most 2 percent?

TOBIN: At most, 2 percent.

BLACKWELL: Normal?

TOBIN: Very -- I mean, which is normal.

BLACKWELL: Right.

New subject to discuss with you. You might recall, if you were listening to the testimony, my discussing with Dr. Fowler the hypopharynx?

TOBIN: Yes, I -- I remember.

BLACKWELL: And you might recall, I spent some time asking him about what research he had done on the potential for pressure on the back to narrow the hypopharynx?

TOBIN: Yeah, I recall that.

BLACKWELL: Do you recall him saying he had canvassed the literature and he could not find anything?

TOBIN: I'm sorry.

BLACKWELL: Do you recall him sake he reviewed the research and he could not find anything?

TOBIN: Yes, I recall him saying that.

BLACKWELL: Are you able to enlighten or give any information to the jury on the nature of the research on the hypopharynx and how it narrows with compression in the prone position?

TOBIN: Yep. So, I mean, the research on this, which is extensive, is really in the scientific literature. It's in the physiological literature. And then that is applied over medicine.

So, the type of studies that are done are really not done in ordinary clinical research. It's much for physiological, much more scientific about how the body works. And there's about probably at least a dozen, maybe 20 studies that show the relationship between how -- that if you lower the size of the lungs, you must get a decrease in the size of the hypopharynx, all the studies show that.