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There is new evidence in the George Floyd case, posted yesterday (Tuesday, August 25, 2020) at the Minnesota court website. These appear to be exhibits to a motion to compel disclosure in the criminal case against Tou Thao, one of the officers involved in the Floyd incident.
This evidence strongly supports the hypothesis set forth in my prior posts on the Floyd incident, in late May and early June, suggesting that Floyd died of fentanyl overdose. There are two memos by personnel of the Hennepin County Attorney’s Office regarding two interviews with the medical examiner who performed the Floyd autopsy, Dr. Andrew Baker. Dr. Baker is identified as the Chief Hennepin County Medical Examiner. There is also a page of handwritten notes, apparently either by Dr. Baker or by someone who talked to him.
The timeline is important. Floyd died on May 25, and the autopsy was performed on May 26. The full autopsy report by Dr. Baker is dated June 1 (here – I analyzed this in detail in a post on June 6, here). From the memos, as detailed further below, it appears that Dr. Baker was awaiting the toxicology report before completing his report.
The first Hennepin County Attorney’s Office memo (here) is dated May 26, 2020, the day of the autopsy and the day after Floyd’s death. It is written by Patrick Lofton (who is identified as an Assistant County Attorney in the other memo), and indicates that Lofton and Amy Sweasy met with Dr. Baker on May 26. Others were present, including FBI personnel and personnel of the “BCA” (which I think is the Minnesota Bureau of Criminal Apprehension). The entire text of the memo, except the intro paragraph, is as follows (my emphasis added; the memo refers to Dr. Baker as “AB”):
AB explained his findings from the autopsy of George Floyd. He stated that his final report is not complete and that he must review more evidence, including video evidence, and toxicology results before releasing a final opinion.
The autopsy revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation. Mr. Floyd did not exhibit signs of petechiae, damage to his airways or thyroid, brain bleeding, bone injuries, or internal bruising.
Mr. Floyd had several external injuries, including a laceration to his lip and bruising on his left shoulder and face. He also had abrasions on his fingers and knuckles as well as wrist injuries likely associated with being handcuffed.
Mr. Floyd had preexisting health conditions including a heavy heart and some coronary artery disease, including at least one artery that was approximately 75% blocked.
AB sent Mr. Floyd’s blood samples to NMS Labs, who will provide a full toxicology report.
AB opined that he does not have a full context for Mr. Floyd’s death without reviewing more of the evidence. He specifically avoided watching any videos associated with the case to avoid a bias during the autopsy.
I’ve italicized thyroid, as I suspect that Dr. Baker actually said “hyoid.” The hyoid is a bone in the neck, often broken in cases of strangulation. I can’t be sure about this, as the thyroid gland is also in the neck.
The second Hennepin County Attorney’s Office memo (here) is dated June 1, 2020, reporting an electronic conference the prior evening (May 31 at 7:30 pm). It is written by Amy Sweasy, who was present at the prior conference, and indicates that Assistant County Attorney Lofton was also present. The entire text of the memo, except the intro sentences, is as follows (again, my emphasis added):
Dr. Baker said that he had (and had recently received) the final toxicology reports from Mr. George Floyd’s samples which were analyzed by NMS labs.
AB shared his screen and showed us the results. He said that where it says, “Hospital Blood,” those samples are from Mr. Floyd’s hospital admission and were not acquired at autopsy. AB said that these samples are better for determining actual blood toxicity than samples taken at autopsy. Samples taken at autopsy may have undergone “post mortem distribution.”
AB walked us down the list of substance for which NMS labs tested. Those values he highlighted were:
4ANPP – a precursor and metabolite of fentanyl present in Mr. Floyd’s blood.
Methamphetamine – 19 ng/ML which he described as “very near the low end” and “a stimulant hard on the heart.”
Fentanyl – 11. He said, “that’s pretty high.” This level of fentanyl can cause pulmonary edema. Mr. Floyd’s lungs were 2-3x their normal weight at autopsy. This is a fatal level of fentanyl under normal circumstances.
Norfentanyl – 5.6 a metabolite of fentanyl.
Mr. Floyd’s urine was tested for 4 things and are redundant, given the blood analysis. AB said, “the only thing that matters is what’s in his blood.”
AB said that if Mr. Floyd had been found dead in his home (or anywhere else) and there were no other contributing factors he would conclude that it was an overdose death.
The issue of pulmonary edema, with Floyd’s lungs being 2-3 times their normal weight, is not noted in the autopsy report. The weight of each lung is noted, but there is no comment indicating that the weight was abnormal.
I find this to be remarkable evidence. It strongly supports my prior conclusion that fentanyl overdose cannot be ruled out as the cause of Floyd’s death, certainly not at the criminal law standard of “beyond a reasonable doubt.” I think that this memo makes it quite unlikely that fentanyl overdose can be ruled out as the cause of death, even at the lower “preponderance” standard that would apply in a civil case for wrongful death.
The final evidence is a single page of handwritten notes dated June 1, 2020 (here). It does not identify the person who wrote the notes but appears to be written either by Dr. Baker or by someone recording a discussion with Dr. Baker. Here is the full text (again, my emphasis added):
Fentanyl at 11 ng/ml – this is higher than chronic pain patient. If he were found dead at home alone + no other apparent causes, this could be acceptable to call an OD. Deaths have been certified w/ level of 3.
Baker: I am not saying this killed him.
4ANPP – thinks this is non-commercial
Meth 19 ng/ml – this is relatively low, but meth is bad for your heart.
From videos I have seen, it appears like his knee is on the side of his neck, not where the structures are.
This last line is relevant to the asphyxia argument, and specifically the media narrative that Ofc. Chauvin was choking Floyd by kneeling on his neck. As noted in my June 6 post and in the first memo quoted above, the autopsy found no physical evidence of choking or other asphyxiation — specific relevant details is the lack of damage to Floyd’s trachea and hyoid bone. This is common sense. In the video, Floyd’s head is turned to the side — his right side — and Chauvin’s knee is on the right side of Floyd’s neck, presumably pressing down (with an unknown amount of force, except that it was insufficient to cause any bruising or other tissue trauma, according to the autopsy). You can’t choke someone with pressure on the side of their neck.
There is contrary evidence, without explanation. An email from a lawyer representing the Floyd family (here) summarizes the findings of the two medical examiners hired by the lawyers (which differ slightly, but both blame the officers). The conclusion page of a memo from the Armed Forces Medical Examiner (here) concurs with the cause of death and the classification of the cause as homicide by the Hennepin County Medical Examiner — conclusions that are not explained in either the Hennepin County ME autopsy report or in the Armed Forces ME memo. The opinion from the Armed Forces ME memo, which does not include a date on the single page available, is:
The Office of the Armed Forces Medical Examiner agrees with the autopsy findings and the cause of death certification of George Floyd as determined by the Hennepin County Medical Examiner’s Office. His death was caused by the police subdual and restraint in the setting of severe hypertensive artherosclerotic cardiovascular disease, and methamphetamine and fentanyl intoxication. The subdual and restraint had elements of positional and mechanical asphyxiation. The presence of sickle cell trait is a significant finding in this context.
We concur with the reported manner of death of homicide.
My personal conclusion is that both the Hennepin County ME, and the Armed Forces ME, are engaging in deliberate obfuscation, and I find this very troubling. Some explanation would be helpful, but there is none.
Of note, the Armed Forces ME subtly altered the Hennepin County ME’s cause of death, which was “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” This does not actually say that Floyd’s death was caused by the police subdual and restraint.
The comment about the significance of the “sickle cell trait” is particularly odd, without explanation, as it contradicts the Hennepin County ME report, which stated (again, my emphasis added):
The finding of sickled-appearing cells in many of the autopsy tissue sections prompted the Hemoglobin S quantitation reported above. This quantitative result is indicative of a sickle cell trait. Red blood cells in individuals with sickle cell trait are known to sickle as a postmortem artifact. The decedent’s antemortem peripheral blood smear (made from a complete blood count collected 5/25/20 at 9:00 p.m.) was reviewed by an expert HHC hematopathologist at the Medical Examiner’s request. This review found no evidence of antemortem sickling.
So if there was no evidence of sickling before Floyd’s death, how can the sickle cell trait be significant? There could be an explanation for this, but it is not given.
This evidence has become public as a result of a motion to compel the production of documents, filed by Ofc. Thou’s lawyer, which seeks (among other things) the complete file of the four ME’s involved (Hennepin County, Armed Forces, and the two hired by the Floyd family’s lawyers). The limited documents already available from the Hennepin County ME, quoted above, seem to significantly contradict the official findings of the autopsy. I am curious to see whether this will be the case for the other ME files, if they are released.
My current impression is that the charging and prosecution of the four police officers involved in the Floyd incident is wrongful appeasement in response to the demand of legions of lawless, barbarian thugs in Minneapolis and across the country. It appears to me that the County Attorney’s office is acting in a reprehensible way:
- They charged Chauvin on May 29. The memos quoted above show that, at that time, they had been told by the ME that “[t]he autopsy revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation,” and that the ME said that he “must review more evidence, including video evidence, and toxicology results before releasing a final opinion.”
- They upgraded the charge against Chauvin on June 3, adding a second-degree murder charge. This was after the ME had told them “that if Mr. Floyd had been found dead in his home (or anywhere else) and there were no other contributing factors he would conclude that it was an overdose death” and that “[f]rom videos I have seen, it appears like his knee is on the side of his neck, not where the structures are.”
- On June 3, they also charged the other three officers with crimes, the most serious of which is aiding and abetting second-degree murder.
To me, this looks like a travesty of justice. It looks like actual justice would mean dropping the charges. But then, “justice for George Floyd” doesn’t mean actual justice, it means social justice. As usual, inserting “social” converts justice to injustice.
More evidence might change my mind, just possibly, but this looks like a politically motivated witch hunt against four innocent officers, unjustly accused.
I have a final comment. I’ve never been a prosecutor, but I’ve been a litigation lawyer for almost 22 years now. I’ve hired, interviewed, and deposed many expert witnesses. One of the things that I always ask my own expert witness is whether he can testify on the key issue in the case.
In short, I would have asked Dr. Baker, point-blank, whether he can testify, beyond a reasonable doubt, that the actions of the officers (or any of them individually) caused Floyd’s death. There is no indication in the County Attorney memos that they even asked this question.
I do have my suspicions. I suspect that the County Attorneys did discuss this issue with Dr. Baker, and the answer was “no.” I suspect that Dr. Baker knew that he could not make a cause of death determination with a reasonable degree of medical certainty, and therefore used deliberately vague language. We’ll see as the cases progress. If my suspicions are correct, I think that it will be a major scandal.Published in