This is not normal. In most major trials involving heinous crimes both sides end up engaging in what is commonly known as The battle of the experts. The prosecution trots out the best the state has to offer in that particular arena in their case in chief, and the defense trots out the best that money can buy in their case to rebut the prosecution.
This is nothing new. In fact there are forensic and medical experts who make a very comfortable career by, let’s just say, massaging the accepted evidence to conform to a particular point of view. The important thing being, they take already established facts, and find an alternate theory.
But it’s all just gone wrong. One of the major, featured experts that Eric Nelson trotted out in defense of Derek Chauvin in his defense was former Maryland Chief Medical Examiner, Dr. David Fowler. And to be generous, Fowler was a hot mess. If David Fowler was the best that Nelson could do, he shouldn’t even have bothered trying to rebut the prosecutions forensic testimony.
Fowler made no direct examination of Floyd himself, he worked with existing numbers from the autopsy. And he tended to fly in the face of reason at every opportunity. His zenith of incredulity was when he suggested that George Floyd may have succumbed to carbon monoxide poisoning, because he spent so long in close proximity to the tailpipe. This despite the fact that it was a hybrid vehicle, and there was no evidence that the engine was even running. The prosecution chewed him up and spit him out on cross examination.
Now, at least the august doctor can soothe his raw feelings at being humiliated on national television as a professional with the sop that at least he got paid a shit pot full of money. But now he’s looking at the kind of professional humiliation that no amount of money can take the sting out of.
Following the guilty verdicts in the Chauvin case on Tuesday, on Friday the Maryland Governor, and the Maryland Attorney General, announced in a joint statement that they had ordered an independent review of every death in custody case that Fowler presided over during his tenure as Chief Medical Examiner.
That’s right. Fowler’s testimony on behalf of Chauvin in the Floyd trial was so unhinged that the state of Maryland now finds it necessary to cover their own asses as to how accurate his work in previous police custody cases was in the first place. This could end up with previous cases of possible police abuse being reopened, or convictions being overturned.
That’s the kind of professional shame that no amount of money can wash away. And more importantly, now that Fowler is a hired gun, this isn’t the kind of testimonial that is likely to lead to garnering the movie star wages for any testimony in the immediate or near future. What goes around, comes around.
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Hybrids also tend to shut off instead of idling.
More than one coroner has been taken down by false reports in court and elsewhere. (ISTR one case where what got him was saying a young woman had an appendix, when she’d had an appendectomy. Her parents sued and won.)
Thanks!!! Never having had a hybrid vehicle, I am abysmally ignorant of their operation…Somehow, this just makes it worse…
I always thought it was a given that lawyers (regardless of which side they are on) avoid asking questions they don’t already know the answer to. In the case of the “possibility” of carbon monoxide emissions I would think both the expert and the lawyer would have done a little basic research. Like what was the make, model and year of the vehicle in question as well as its maintenance records. That would have told them (if they checked) that it was a hybrid vehicle and that even if it hadn’t been turned off by the driver it would have gotten to the point where it would have, if in IC (internal combustion) mode it would have switched to electric. Ergo no carbon monoxide emissions. I get trying to do some misdirection by raising the lack of a test having been run for carbon monoxide levels in Floyd’s blood even though common sense (which the jury seems to have possessed) kinda makes it obvious from prior testimony that with 98% oxygen saturation very little carbon monoxide poisoning was even possible. The question of what if any is a normal amount in the blood vs. at what level it can become a concern or lethal would have been easily cleaned up via cross examination so it was to me kind of a dumbass thing to try and make a big deal out of in the first place.
There was also a big hulabaloo prior to the rebuttal case about the fact it turns out the hospital HAD run a test specifically for carbon monoxide but hadn’t forwarded it to the pathologist. Knowing from defense motions back in late Feb. that the issue might have come up you’d have thought the state’s pathologist would have run a test on blood they still had, and if not on his own at the prosecution’s request to have their asses covered just in case. However, I guess they assumed the obvious which also happened to be the truth which was that with such high oxygen saturation the whole carbon monoxide thing would be a non-starter and that the defense wouldn’t try to make a big deal out of it. To which I say WTF? ALL the defense had was a “throw every piece of shit we can get our hands on up on the wall and hope something sticks to create reasonable doubt.” So in an otherwise excellent prosecution the prosecution dropped, or at least fumbled the ball.
I mention all this because after Fowler’s testimony the light bulb went on in someone’s head and the hospital provided the results of the carbon monoxide test they HAD run after Floyd was brought in and the pathologist in turn called the prosecution. Fowler was already winging his way home, but the prosecution who had already planned to call Tobin back for rebuttal wanted him to include this particular test result as part of his rebuttal to the “it might have been carbon monoxide” bullshit from the defense. Nelson of course objected and they had a back & forth about it before the jury was brought in. The judge sided with Nelson and the test was excluded, but Tobin still effectively shot down the whole carbon monoxide might have been the cause of death bullshit from the defense.
The thing is, the judge made his “if the prosecution or its witness even hints that this test had been done it will be a mistrial. On the spot.” Some TV experts doing commentary needed fainting couches at one point where they thought Tobin “almost went there” but he’s too savvy for that and it all passed without incident.
Except in his closing Nelson stated that no one had checked Floyd’s carbon monoxide, and so that meant there was reasonable doubt as to the cause of death! I’m convinced Nelson did that trying to provoke a mistrial by getting the prosecution to object right then and there and slip up in stating the the reason, or for them to refute it in their final closing. The prosecution didn’t take the bait but Nelson CLEARLY violated the judge’s instruction on that point when he sustained the original objection about introducing evidence regarding carbon monoxide testing. Nelson clearly said it hadn’t been done when he knew damn well that it HAD.
I can see the judge not doing or saying anything until after the verdict, at least outside of chambers but as far as I’m concerned he SHOULD have had Nelson (with the prosecution present) pay a visit to chambers and ream his ass! And then, as part of the post trial standard stuff put it on the record. And recommend Nelson to the MN State Bar for disciplinary action.
However there’s a deeper issue I’ve mentioned before which hasn’t I believe gotten the attention it deserves.