Last week, counsel for Tou Thao, one of the former Minneapolis police officers charged in the death of George Floyd, filed an explosive motion for sanctions against the prosecution that alleges, among other things, that the testimony of Hennepin County Medical Examiner Andrew Baker in the trial of Derek Chauvin “was directly and indirectly coerced by the State and its agents” and that the former chief medical examiner for the State of Maryland, who testified for the Chauvin defense that Floyd’s death was due to cardiac arrhythmia, has been subjected to threats against his medical license.
The motion avers, in part, the following:
On May 26, 2020, Dr. Baker, the Hennepin County Medical Examiner, conducted an autopsy of Mr. Floyd. On that same date, Dr. Baker advised “prosecuting attorneys” that “[t]he 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.”
In woke America, due process of law and the right to defend oneself in a court of law must not stand in the way of achieving social justice.
On May 29, 2020, the criminal complaint against Derek Chauvin stated that the full report of the medical examiner was pending, but that the preliminary findings “revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation.”
Prior to June 1, 2020, Dr. Roger Mitchell, former medical examiner for Washington, D.C., called Dr. Baker to discuss these preliminary findings. Citing an “Exhibit 1” (not accessible on the court’s website), paragraphs 5 and 6 of the motion state the following:
5. Dr. Mitchell spoke with Dr. Baker before Dr. Baker finalized his findings on June 1, 2020. Id. During the conversation between Dr. Mitchell and Dr. Baker, the following transpired:
a. Dr. Mitchell “called Baker and said first of all Baker should fire his public information officer.” Id.
b. “Then Mitchell asked [Baker] what happened, because Mitchell didn’t think it sounded like Baker’s words”. Id.
c. “Baker said that he didn’t think the neck compression played a part … ” Id.
6. Over the weekend, Dr. Mitchell thought about Dr. Baker more. Id. After the phone conversation between Dr. Mitchell and Dr. Baker, Dr. Mitchell decided he was going to release an op-ed critical of Dr. Baker’s findings in the Washington Post. Id. Dr. Mitchell first called Dr. Baker to let him know. Id. The following transpired:
a. Dr. Mitchell called Dr. “Baker first to let him know that he was going to be critical of Baker’s findings”. Id. “In this conversation, Mitchell said, you don’t want to be the medical examiner who tells everyone they didn’t see what they saw. You don’t want to be the smartest person in the room and be wrong. Said (sic) there was a way to articulate the cause and manner of death that ensures you are telling the truth about what you are observing and via all of the investigation. Mitchell said neck compression has to be in the diagnosis.” Id. (Emphasis in original.)
According to the motion, following these conversations, Dr. Baker issued a press release in which the “final autopsy findings included neck compression,” which was “contrary to Dr. Baker’s conclusion before speaking with Dr. Mitchell twice.”
The motion later addresses the purported actions of Dr. Mitchell in regard to Dr. David Fowler, former chief medical examiner of the State of Maryland, who testified for the defense in the Chauvin trial “that in his opinion the death [of Mr. Floyd] was undetermined.”
In fact, Dr. Fowler testified that Mr. Floyd died while being restrained by the police of a sudden onset cardiac arrhythmia due to his heart disease, which included high blood pressure and narrowing of the arteries. He added that the presence of fentanyl and methamphetamine in Floyd’s system were contributing factors as was “possible” carbon monoxide poisoning from auto exhaust.
As set forth in the motion, eight days after Dr. Fowler’s testimony, Dr. Mitchell “wrote an open letter” to Maryland’s attorney general, the director of the Maryland Department of Health, the United States attorney general, and the director of the Centers for Disease Control and Prevention, calling for an “immediate investigation into the practices of the physician [Dr. Fowler] as well as the practice of the Maryland State Office of the Chief Medical Examiner (OCME) while under his leadership.” The letter also stated that Dr. Fowler’s opinion testimony was “baseless, revealed obvious bias, and raised malpractice concerns” and “is outside the standard practice and conventions for investigating and certification of in-custody deaths”:
Our disagreement with Dr. Fowler is not a matter of opinion. Our disagreement with Dr. Fowler is a matter of ethics. The disingenuous testimony of Dr. David Fowler exposes the frailty of the current Medical Examiner/Coroner System and illustrates the lack of existing oversight and uniformity of practice. If forensic pathologists can offer such baseless opinions without penalty, then the entire criminal justice system is at risk.
The letter calls for, among other things, “Investigation into the medical license of [Dr. Fowler] for possible ethical violations associated with death in custody diagnosis.”
The letter, which was publicly circulated, has a “click to sign” feature. As reported by the Baltimore Sun, the letter was “signed by 431 doctors from around the country.”
The motion seeks disclosure of evidence purportedly in the possession of the prosecution to “determine whether Dr. Mitchell was a state-actor/agent when he threatened Dr. Baker and/or Dr. Fowler.” How that discovery will play out and whether sanctions will be imposed against the prosecution remain to be seen.
And it also is an open question as to whether the defense can prove the claim that Dr. Mitchell committed the “crime of coercion” by threatening to “unlawfully injure Dr. Baker’s trade unless Dr. Baker changed his autopsy findings.”
But, in the meantime, Dr. Mitchell’s open letter regarding Dr. Fowler’s purported “ethical violations,” which demands an “investigation into” Dr. Fowler’s medical license, seemingly supports one of the motion’s most damning allegations, to wit:
Dr. Mitchell has set the stage that he will threaten the trade and professional reputation of any physician who suggests that Mr. Floyd’s death could be labeled as “undetermined.”… Dr. Mitchell has essentially stated that any medical expert who wants to testify that Mr. Floyd’s death could be undetermined should, and will, face penalties by him. Dr. Mitchell’s accusations and spurring of legal fallacies creates a chilling effect for Mr. Thao and violates his due process rights in that it has become extraordinarily difficult to find medical experts who are willing to state that Mr. Floyd’s death was undetermined in fear of their professional reputation and licensure.
Given Dr. Mitchell’s open letter, this averment is a masterpiece of lawyerly understatement. And, placed in the context of the threatened mob violence that has permeated and polluted the prosecution of these former Minneapolis police officers, it doesn’t begin to state the enormity of the problem facing the defense.
In that regard, consider the threat sent to Barry Brodd, the retired police officer and use-of-force expert who testified during the Chauvin trial that the defendant’s actions had been reasonable and met the standards of accepted police protocols.
Within a matter of days following his testimony, Brodd’s former home in California was vandalized. According to the New York Post, three women, Rowan Dalbey, 20, Kristen Aumoithe, 34, and Amber Lucas, 35, have been arrested and charged with felony vandalism of that residence.
Lucas is reportedly a self-professed Black Lives Matter activist who attended protests in the aftermath of George Floyd’s death and is also, according to her social media, a lifestyle and wine influencer, as well as a commissioner for the Commission on the Status of Women in Sonoma County.
Police allege that the women struck the property in the early morning hours of April 17, days after Brodd testified in the Chauvin case. The trio allegedly smeared pig’s blood on the front door and garage of the residence and tossed a pig’s head onto the front porch.
“It appears the suspects in this vandalism were targeting Mr. Brodd for his testimony,” said a police spokesman. “Mr. Brodd has not lived at the residence for a number of years and is no longer a resident of California.”
And so it goes. Apparently it’s not enough to force Thao and the other police defendants to stand trial in a venue where they have no hope of having their fate decided by a fair and impartial jury uninfluenced by the threat of mob violence. Now they also must contend with the efforts of those who, by their retaliation against the Chauvin defense witnesses, have given examples of what may happen to anyone contemplating testifying on behalf of Thao and his co-defendants.
So it is that, in woke America, due process of law and the right to defend oneself in a court of law must not stand in the way of achieving social justice.
Nothing must be left to chance.
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net sand can be reached by email at firstname.lastname@example.org.