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It Wasn’t Our Dog…
When plaintiffs file a wrongful death lawsuit, they know that the defendant will defend the case just like it was a dog bite case: it wasn’t our dog, it didn’t bite you, if it did bite you, you deserved to get bit, and what are you hollering for, because the dog bite didn’t cause your injury. Now, substitute any kind of tortious or negligent act for “dog bite” and you have the defense bar’s approach to wrongful death cases.
I handled a nursing home wrongful death case in 2014 that took nine years to get to trial. Every conceivable way a case can be delayed, this case was. The negligence in the case was horrible. The 88-year-old victim, whose daughter was a nurse, and had been the Director of Nursing at that institution, testified that her mother was terribly neglected. The medical records demonstrated that she went 26 days without a single nursing note during a period of time where she lost nearly 20 pounds of body weight.
At trial our case was simple: neglect caused her death. The judge told me my closing argument was one of the best he’d heard.
We lost.
In part, we lost because the defense had a slick expert who was an exceptionally gifted liar. But mostly we lost because of causation. While we made the case perfectly that the abuse heaped on the woman by the nursing home personnel caused her to stop eating and wish for death, at the end of the day, she didn’t eat. While we saw the causation as clear, as did our expert physician and nurse, the jury did not. The defense had a simple case too: she was old, she was going to die anyway.
In a civil case, all you have to do is show that your theory is more likely. You don’t have to prove it beyond a reasonable doubt (although many trial lawyers would tell you to win a malpractice case you have to have much more than a “more likely” and more like a “no other way it could have happened” standard). Malpractice cases are rarely defended on the standard of care. If you’re a nursing home defense lawyer, you can’t really argue that it’s okay to let a patient sit in a nursing home and not get seen for 26 days. So instead, you argue the ace-in-the-hole of every defense lawyer: causation.
Causation requires both factual causation (that the negligence caused the injury in fact) as well as proximate causation (that the injury that occurred was foreseeable as a natural and probable result of the negligence). Law school students have struggled with these concepts for the last 100 years, and most lawyers can’t explain these concepts in under an hour. But the bottom line is as the plaintiff you have to prove that the act of the defendant caused the injury the plaintiff is complaining about.
In criminal law, the burden is even steeper. It is not enough to show that the murderer had access to the house, hated the victim, owned a gun, and had said he would kill the victim. The prosecutor must show that in addition to that, the evidence puts him at the scene, at the time of the killing, and that some physical evidence ties him to the crime. Gunshot residue on the clothing. Hair and fiber. And the best of all: DNA. Evidence is key. There are no shortcuts in criminal law.
A friend of mine who is a former prosecutor has said that the worst witness he ever put up in a murder trial was a pathologist who worked for the medical examiner. English was not his native language. When asked on the stand what caused the death of a victim suffering a gunshot wound to the head, he said “Ah big ah hole, head, belly belly daid.” As if there could be quantitative measures of the degree of being dead. I suppose a person shot through the heart would just be “belly daid.”
It has now come out that Saint George, or as he was known at the time, George Floyd, had a fatal level of fentanyl in his system. The lawyers for the accused police officers are attacking the murder charges in the case by claiming, much like my nursing home patient, that he was drugged and was going to die anyway. And if the fentanyl didn’t kill him, then surely the fact that he was both an addict and a victim of the coronavirus surely would have.
In addition to that, in a May 26, 2020 memorandum the medical examiner concluded, “The autopsy revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation.”
For those of you without degrees in pharmacology, Fentanyl is a powerful synthetic opioid that is similar to morphine but is 50 to 100 times more potent. That means that in toxic amounts it causes respiratory depression and arrest, unconsciousness, coma, and death. On the positive side, you die with a happy buzz.
Derek Chauvin was charged with Second-Degree murder (which is murder without intent) under the felony murder rule because Chauvin was committing a felony assault on Floyd. That charge states that “on or about May 25, 2020, in Hennepin County, Minnesota, Derek Michael Chauvin, caused the death of a human being, George Floyd, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting, namely assault in the third degree.” He was also charged with Third Degree murder. That charge states that “on or about May 25, 2020, in Hennepin County, Derek Michael Chauvin caused the death of another, George Floyd, by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
If you look carefully at the charges, however, here’s what you notice. It is alleged that Derek Michael Chauvin, caused the death of … George Floyd. In other words, the state has to prove beyond a reasonable doubt that the acts of Derek Chauvin, and no other factors, directly caused the death of George Floyd. Unlike civil law, where the law sometimes states causation in terms of “caused or directly contributed to cause” (meaning that the acts of the defendant combined with other factors) here the state has to prove beyond a reasonable doubt that the police officer’s actions were the sole cause of the death.
In other words, Chauvin and the other police officers are going to argue it wasn’t their dog, and it didn’t cause the injury. You want someone for George Floyd’s murder, find the creep that sold him the clinical derivative of China White heroin. If the jury is honest and abides by their oath, I fail to see how a jury could convict any of these officers. Was their conduct bad? Yes. Did it cause death? Maybe. But “maybe” won’t cut it in a criminal trial.
The real question is, will there be riots when these officers go home free men?
Published in Policing
And the Democratic Party will say, “it wasn’t our dog (Antifa), it didn’t bite you, if it did bite you, you deserved to get bit, and what are you hollering for, because the dog bite didn’t cause your injury.”
When you’re right, you’re right.
The jury will know full well that there will be riots, and that the current municipal powers-that-be will do nothing to defend Minneapolis.
I would hope and expect that if this case goes forward, the defendant would ask for and receive a change of venue or whatever it’s called.
Which may mean they found guilty, but shouldn’t be. They were overcharged to begin with and that will cause more harrowing of Minneapolis, or it will mean these officers will be punished for a crime they didn’t commit or shouldn’t have been found guilty of. Hard to say that a good outcome will be had here. The press and the Democratic party don’t care though. It serves the narrative and can be used to advance their agenda that is all that matters to them. Is it too strong to call them monsters? Or are they just little children playing with matches.
Maybe.
But to me, a more credible inference from the undisputed facts of the case* is that they did an exemplary job in every way. First, in appropriately enforcing the counterfeiting laws. Second, in the actions they took to try to save the perp’s life when they observed him in extreme physical and mental distress consistent with a drug overdose, including
*which were effectively suppressed and deliberately re-written by the media propaganda machine. I think that there can be no reasonable doubt that the media were motivated to conduct this disinformation campaign by an ideological interest in amplifying the already existing anti-Caucasian, anti-cop paranoia, and setting off a wave of anti-American violence.)
@anthonydewitt
@anthonydewitt
Given a jury’s entirely reasonable fear of further riots in the event of an acquittal, could the defense attorneys request a change of venue? And is it likely that the trial court would grant a change of venue?
Thanks for you insights.
The change in venue might give the defendants a chance at a fair trial. It will not stop reactive rioting. Rioting is serving too many people’s purposes.
Good post.
I disagree with your conclusion that the officer’s conduct was bad. It did look bad, but looks can be deceiving.
Their conduct was professional; they made it possible for Floyd to be in his preferred position – lying down – but still maintain control of him such that he would not attack them or wander off.
They could have forced him into the car. They could have tased him or beaten him with billy clubs.
Instead, they tried to save his life by calling an ambulance, let him lie down, and kept Floyd and themselves safe according to the dictates of Minnesota police procedures.
Your last question about riots? Yes. There will be riots.
The smart thing would be to just convict the cops and move on. They can always get out later on appeal after tempers cool. Maybe they can be pressured to take a plea for the good of the country / city / force / their family.
I think you would be very effective theming the case in this way if you represented them.
Changes of venue are normally reserved for cases where local publicity has tainted the jury pool and people have made up their minds in advance. You’d need some pretty good polling data to get a change, but, yes, it could be done. If you took this out into rural Minnesota, they would walk these guys in a minute.
Perhaps that would have been a better way for me to say it.
If they take a plea, they’ll never be able to appeal. Pleading guilty allows no appeal.
Don’t you think they should have given CPR when he stopped breathing?
In hindsight, there would have been improved optics to the crowd, which could have possibly avoided the riots.
The officers in this case were overcharged. Their attorney’s might want to ask for a Bench Trial (trial by judge, rather than a jury.) This negates the prosecution from making emotional arguments that a judge might tell the jury to disregard. What’s been heard by a jury cannot be unheard.
Any post that paraphrases Racehorse Haynes is A-OK with me.
There would be justice in Chauvin going free on the second-degree murder charge as retribution for Keith Ellison overcharging him. However, the original third-degree charge was not unreasonable and might be grounds for conviction on a lesser included offense.
By focusing solely on the “caused the death of another” language, you are omitting the manner of causing under the third-degree charge–“by perpetrating an act eminently dangerous to others and evincing a depraved mind.” I’ve made this point her before, so I apologize for the repetition, but Chauvin’s defense must rationalize the fact that no CPR was performed on Floyd during the crucial time period (although an ambulance had been called), and, with regard to the “eminently dangerous” act, the fact that he continued to “subdue” Floyd for in excess of two minutes after another officer informed him Floyd had no pulse.
The matter of what is a “fatal level” of Fentanyl likely varies with an individual and, to a degree, is subjective. One wonders why, if Floyd had a “fatal level” of fentanyl for him, he wasn’t dead before his encounter with the police. Yet he was up and around, trying to pass a bad bill. And not dead.
General Flynn?
It can take time for drugs to have their effect throughout the body, depending on delivery method and location. I had one (legally-prescribed) drug where it took four days before it built enough to create an adverse reaction. The reaction occurred six hours after the most recent dosage.
That’s a valid point. But my non-medical thought is that most narcotic OD’s occur fairly quickly after a dosage.
He also had meth and THC in his system. He also had advanced coronary disease. He didn’t die from a strict and pure overdose, but from a combination of abuse of his corporeal form.
That’s why we’ll have a trial. If you’re a lifelong smoker, boozer, and drug addict with a $200-a-day habit and blood pressure through the roof, and I walk up to you, punch you in the head, and you drop dead, I still have a problem.
You would think that, but again, liver function, nutrition, lung function, and a myriad of other factors figure in. Again, the issue here is not so much what is a fatal level of Fentanyl, but rather, that the county medical examiner said one was there, and that raises REASONABLE DOUBT. That’s all you have to get as the defender. Reasonable doubt is the gold standard. If you can convince just one out of 12 that there is reasonable doubt that Floyd died from asphyxia, and clearly there is medical evidence and there will be medical testimony to that effect, there is a sizable chance you walk your client.
Floyd had significant pulmonary edema, which has numerous causes, one of which is fentanyl. His lungs weighed about three times what they should have. He was drowning, or partially drowning, in his own body fluids.
He probably wasn’t kidding when he reported that he felt as though he couldn’t breathe.
Keith Ellison, who took over the case from the county DA, has been sitting on this information for months while Minneapolis burned and the insurrection spread across the country. Imagine what he’d do as, say, Biden’s Attorney General.
I don’t disagree. There is quite a bit here with which a defense attorney can work to raise reasonable doubt. My comments on the fentanyl issue are primarily intended to question the view that “high/fatal level of fentanyl”=Chauvin definitely walks. For me, Floyd’s physical condition should absolutely be a focus of the trial, but so shouldn’t Chauvin’s actions. I consider the latter equally relevant, particularly to a third-degree charge.
That accusation is groundless. And I’m not speaking as my lawyer, but as an honest person.
Maybe he had it in his pocket and swallowed it. When the cops kept telling him to put his hands on the wheel, instead he reached to his right thigh. And then when he did put his hands on the wheel but dropped his head down onto the wheel and brought his head forward and down to his hands.
Sure. Anything is possible, including the fact that he’d been “ingesting” it all day.