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Testimony Continues in Derek Chauvin Trial; President Biden Visits Arlington National Cemetery. Aired 3-3:30p ET

Aired April 14, 2021 - 15:00   ET

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


[15:00:00]

JERRY BLACKWELL, MINNESOTA PROSECUTOR: Would you agree with me that, for over half of that time period, Mr. Chauvin's left knee was on the neck and his right knee is at times on the back and at other times on his left arm or pushed in against his left side?

DR. DAVID FOWLER, FORMER MARYLAND DEPARTMENT OF HEALTH CHIEF MEDICAL EXAMINER: That is correct. Those are all the positions that I observed the knee in, the right knee, during that period of time.

BLACKWELL: And so Mr. Floyd then is sandwiched, in a way, between Mr. Chauvin on top and the asphalt pavement beneath him, right?

FOWLER: Yes, if you...

BLACKWELL: It's a yes-or-no question.

FOWLER: Yes.

BLACKWELL: I want to ask you a question about putting pressure on someone's neck, that is, if you're on a person's neck and applying pressure to the neck.

Doctor, do you agree that if pressure is applied to nobody's neck in the prone position, and the person is squeezed until they become responsive, and if that pressure is maintained for a minimum of four minutes, that can cause irreversible brain damage, because the brain may be starved of oxygen. Is that true?

FOWLER: Once cessation of oxygen to the brain starts...

BLACKWELL: Dr. Fowler, my question was, is it true?

FOWLER: Would you please restate the question?

BLACKWELL: Yes, sir.

If you apply pressure to someone's neck and squeeze until the person becomes unresponsive, and you maintain that pressure for at least four minutes, you will cause irreversible brain damage, because you will have starved the brain of oxygen. Is that true?

FOWLER: Correct. It takes four minutes of no supply of oxygen to the brain to cause irreversible brain damage. BLACKWELL: Now, if somebody dies as a result of the consequences of

insufficient oxygen or low oxygen, we know that, when that person dies, they're going to die of cardiopulmonary arrest, because everybody dies of cardiopulmonary arrest. Fair enough?

FOWLER: Yes.

BLACKWELL: And if that person dies as a result of low oxygen, that person's also going to die, ultimately, of a fatal arrhythmia, right?

FOWLER: Correct. Every one of us in this room will have a fatal arrhythmia at some point.

BLACKWELL: Right, because that's kind of how you go.

FOWLER: Yes.

BLACKWELL: So, I want to talk about the role of sort of physical activity, struggle, if you will, on the oxygen stores, the reserves, when somebody may be in the prone position.

Do you agree that, when somebody is involved in a pretty vigorous physical confrontation, they would certainly have what's referred to as an oxygen deficit?

FOWLER: Yes. Any kind of exertion, you build up a degree of lactic acid and other metabolites that need to be removed from the body. And the oxygen development is used more in the lay environment, but, yes, you have some makeup to do.

BLACKWELL: And because you're using up your oxygen reserves, then?

FOWLER: Somewhat, but it's also more generation of the metabolic byproducts from the actual activity as well.

BLACKWELL: Well, would you agree that somebody with an oxygen deficit who is involved in a rigorous physical confrontation would be more susceptible to positional asphyxia than would otherwise be the case? Do you agree with that?

FOWLER: Yes. It would be more difficult for them to regain their -- to get rid of metabolic byproducts of the activities that occurred before.

BLACKWELL: And would you agree, then, that a person with an oxygen deficit or a debt is more prone to any kind of asphyxia than a person completely at rest? Do you agree with that?

FOWLER: Yes. A fully oxygenated person at rest would certainly be at no risk of -- well, not no, but a substantially lower level of risk of an arrhythmia compared to someone who has been exercised hard.

BLACKWELL: Dr. Fowler, are you familiar with a text known as "Spitz and Fisher"?

[15:05:01] FOWLER: Yes.

BLACKWELL: It's pretty big.

(LAUGHTER)

BLACKWELL: This is a standard text for medical examiners, isn't it?

FOWLER: It is certainly one of the recommended books that fellows in forensic pathology will review as part of their training, yes.

BLACKWELL: And it's one you have in the past referred to as a reliable text?

FOWLER: Yes.

BLACKWELL: It is handed out to all forensic pathologists in training as just a standard text?

FOWLER: Again, it's recommended they use that as one of their references.

BLACKWELL: And you're aware that this text on medical legal investigation of death, it contains sections on deaths by asphyxia, doesn't it?

FOWLER: Yes.

BLACKWELL: And do you agree that, for death by positional asphyxia, that -- that is death caused by low or insufficient oxygen -- that the causes for that maybe what is referred to as endless?

FOWLER: Yes, hence the complexity of these particular cases.

BLACKWELL: So, you spoke with Mr. Nelson about the fact that, on autopsy, when somebody dies of asphyxia, or insufficient oxygen, you might see injuries to the ribs or to the vertebrae that indicate the type of restraint or at least how the asphyxia came about. You might see that, right?

FOWLER: Yes.

BLACKWELL: You might see what are referred to as traumatic manifestations, things like bruises, evidence of injury on autopsy. You might see those, right?

FOWLER: Yes, absolutely.

BLACKWELL: Do you agree, Dr. Fowler, that the majority of cases where somebody dies of asphyxia are very subtle and, in fact, no traumatic manifestations are visible at all?

FOWLER: That is correct, depending on the circumstances.

BLACKWELL: And what I mean by that is that there isn't necessarily any evidence, any physical evidence on autopsy of what it is that caused the low oxygen in the majority of cases, right?

FOWLER: In substantial number of the cases. I'm not sure it's absolutely the majority.

BLACKWELL: Brett (ph), could you (OFF-MIKE) "Spitz" at page 18

Dr. Fowler, can you see here from -- I represent this is from "Spitz and Fisher." For identification purposes, Your Honor, it's Exhibit 814 for the record.

Am I reading here correctly that, "However, the majority of cases are subtle, often with no traumatic manifestations at all."

I read that accurately?

FOWLER: Yes, you did.

BLACKWELL: Thank you, Brett.

Are you familiar with a publication called "Knight's Forensic Pathology"?

FOWLER: (INAUDIBLE) "Knight," yes.

BLACKWELL: And that's another reliable authority for forensic pathologists, isn't it?

FOWLER: Correct.

BLACKWELL: Did you know that "Knight's Forensic Pathology" also has a chapter on suffocation and asphyxia?

FOWLER: Yes.

BLACKWELL: That doesn't surprise you, does it?

FOWLER: It doesn't surprise me, and I have seen it.

BLACKWELL: And that's Exhibit 815, just for identification purposes.

And I want to show you what's then at page 354. This is taken from "Knight's." "Knight's" just says: "There are no truly distinctive autopsy signs of pure hypoxia. And most of the alleged criteria are caused by other factors other than a lack of oxygen."

Did I read that accurately, Dr. Fowler?

FOWLER: Yes, I'm just reading it and trying to process it. I apologize to you.

BLACKWELL: I'm sorry. No, please, take your time.

FOWLER: Yes, that's what it says.

BLACKWELL: Now, you had some discussions with Mr. Nelson about strangulation. You do understand, in this case, that no one is contending that Mr.

Floyd was manually strangled by anyone? You understand that, don't you?

FOWLER: Oh, absolutely correct. There was no evidence of manual strangulation and no discussion of manual strangulation.

[15:10:09]

BLACKWELL: Dr. Fowler, do you agree that, with respect to positional asphyxia, the diagnosis of positional asphyxia is one that is made by investigation, because you won't find an autopsy finding that necessarily specifically tells you why the person is asphyxiated?

FOWLER: Correct. The scene information becomes very important.

BLACKWELL: You spent quite a bit of time talking about the prone position studies.

And I referenced them just a few minutes ago by Chan (ph) and others.

Let me ask you a couple other questions just about those studies and to try to correlate them to this case.

Is it true, Dr. Fowler, that none of the prone restraint studies that you referred to actually studied subjects who had someone's knee on their neck in the prone position? Is that true?

FOWLER: That is true.

BLACKWELL: None of the studies went for as long as 9:29. Is that true?

FOWLER: That is true.

BLACKWELL: Do you agree, Dr. Fowler, that, if the weight of several officers or a police officer is put on the actual torso and abdominal areas of a person, a person in police custody, that can cause compressional or positional...

BROOKE BALDWIN, CNN HOST: All right, we are going to pause, because I want to take you to a very sacred space in our nation.

The president of United States, after making the announcement at the White House moments ago, is now walking towards Section 60 of Arlington National Cemetery. This is hallowed ground. This is where we have lost and buried members of the U.S. military, men and women who have died in both Iraq and Afghanistan.

So, as we look at these pictures, Oren Liebermann is with me, our Pentagon correspondent.

And, Oren, remind us why this is significant.

OREN LIEBERMANN, CNN CORRESPONDENT: This is a powerful moment. Section 60 means a lot. This isn't the resting place of famous generals who won wars or those who have decided the outcome of history in battles and wars fought decades ago. This is where American service men and women who fought in America's recent wars are laid to rest, wars in Iraq and Afghanistan.

And that's who President Joe Biden is visiting...

(CROSSTALK)

BALDWIN: Oren, let's just -- let's actually not talk over this. Let's just watch.

LIEBERMANN: ... the announcement that the U.S. would withdraw from Afghanistan.

JOE BIDEN, PRESIDENT OF THE UNITED STATES: ... means that I'm always amazed at generation after generation of women and men who are prepared to give their lives for their country.

And they don't give for their country, per se. They give it for their brothers, their sisters, their mothers, their fathers, their uncles, their aunts.

And I -- it means I have trouble these days ever showing up at a veteran cemetery and not thinking of my son, who proudly insisted on putting on that uniform and going with his unit to Iraq, and giving up his spot as attorney general in the state of Delaware, because he thought it was the right thing to do.

And look at them all.

QUESTION: (OFF-MIKE)

[15:15:01]

BIDEN: I'm sorry?

QUESTION: Was it a hard decision to make, sir?

BIDEN: No, it wasn't.

To me, it was absolutely clear, absolutely clear. We went for two reasons (INAUDIBLE) bin Laden to end the safe haven.

From the very beginning, as you may recall, I never thought we were there to somehow unify Iraq -- I mean -- excuse me -- Afghanistan. It's never been done. It's never been done.

Thank you all for being out here in the rain. It means a lot. Thank you.

BALDWIN: I think we're losing that shot. I just wanted to hang on every moment.

And no words could convey what this moment means for this country and, of course, for all of those families who have stood at that -- on that hallowed ground in Section 60, the president saying there, look at them all. Look at them all, all the tombstones.

When he was talking at the White House a bit ago, he says he carries a card on him. And it's always updated with the latest number of lives lost of U.S. military and personnel. And the number today, he read, 2,488 troops and personnel.

Oren Liebermann, forgive me for cutting you off. It just felt right to just sit in silence.

LIEBERMANN: Of course, that moment so crucial, that moment where he not only laid the wreath down, but then saluted the wreath.

And then he looked around, and he looked around at all the tombstones there. Section 60 is but a small section of Arlington National Cemetery. But you got the sense it weighs on him, as he stepped away after taking a few questions there. And he walked away from the camera there. He paused. He looked at the names.

And perhaps, just as importantly, he looked at the dates, the lives of American service men and women taken far too soon in America's recent wars in Iraq and Afghanistan. And that all weighed on him.

In the end, you got a sense of this from the answers he gave, the few words he spoke in Arlington National Cemetery in Section 60. Essentially, for him, enough was enough. America had its objectives. America achieved its objectives. And now, after 20 years, that 20 years, of course, marked on this coming 9/11, for President Joe Biden, it was time to get out and make sure that cemetery wasn't filled with the lives of more people from Afghanistan.

BALDWIN: Oren, thank you. You heard one of the reporters asking him: "Mr. President, was it a hard decision?"

And he said, no. He said it was clear.

Oren, thank you.

And I want to take everyone back now to Minneapolis to the Derek Chauvin trial.

BLACKWELL: ... oxygen reserves would have been during the subdual, restraint and compression on May 25 of 2020, while he was underneath the body of Mr. Chauvin.

You wrote a report containing your opinions in this case. And it is dated on February 22, 2021, right?

FOWLER: Yes.

BLACKWELL: I will represent to you and assume for purposes of my questions that, end expiratory lung volumes, of EELV, is amount of air that remains in your chest between breaths.

Will you accept that as the premise for my question? FOWLER: End respiratory lung volume?

BLACKWELL: Yes.

FOWLER: That's what you're referring to?

BLACKWELL: The EELV, yes.

FOWLER: Yes.

BLACKWELL: And I will refer to that commonly as simply the body's oxygen reserves, just as a common way to refer to it.

FOWLER: It's the air that's left in your lungs. It's not the body. It's oxygen reserve. Your major oxygen reserve is the oxygen dissolved in your bloodstream.

BLACKWELL: We will just call it the EELV then, OK?

FOWLER: Thank you.

BLACKWELL: All right.

Do you agree that as the EELV decreases, that it takes more work to breathe?

FOWLER: I believe so, yes.

[15:20:03]

BLACKWELL: Incidentally, you were having a discussion, had a discussion with Mr. Nelson about the hypopharynx. Do you recall that discussion?

FOWLER: Yes.

BLACKWELL: Now, the report that you prepared to this case was 31 pages, or thereabouts. Fair enough?

FOWLER: Yes.

BLACKWELL: Can we agree that word hypopharynx doesn't appear in your report in any of the 31 pages expressed in your opinions, does it?

FOWLER: That is correct.

BLACKWELL: Now, you had made some comments earlier that you couldn't find anything in the literature about whether the hypopharynx may be impeded by restraints on the back. You recall that discussion?

FOWLER: Yes.

BLACKWELL: And I take it you went to look at forensic pathology studies in that regard, didn't you?

FOWLER: I searched the general literature and forensic pathology sources, yes.

BLACKWELL: Did you look actually in physiology journals, sir?

FOWLER: That, I would consider to be part of the general medical literature.

BLACKWELL: So, yes, you did look at physiology journals?

FOWLER: I searched broadly for it. I don't know whether it's -- I did not specifically focus on looking at physiology journals only.

BLACKWELL: Well, I don't want to confuse the jury, now.

Do you...

FOWLER: No.

BLACKWELL: You didn't? Do you -- I'm sorry, Judge.

PETER CAHILL, HENNEPIN COUNTY, MINNESOTA, JUDGE: Sidebar, please.

BALDWIN: Elie Honig, let me bring you in.

What this seemingly surgical approach from this prosecutor at all these points this witness had made, what's going on here?

ELIE HONIG, CNN LEGAL ANALYST: Yes, this is a clinic, Brooke, I give the prosecutor, Jerry Blackwell, a lot of credit here. He's quiet. But he is taking this witness apart.

He started -- this was when we were covering the president just now. He started his cross-examination by getting the witness, the expert witness, to admit that he had not calculated in the weight of Derek Chauvin's police equipment. We know that that's 30 or 40 pounds.

That means either this witness is sloppy, or he's biased and trying to generate a certain result. He also -- it looks like the judge is talking...

BALDWIN: Let's go back.

BLACKWELL: Dr. Fowler, I was simply trying to get a clear answer, if you can give us one.

Do you have a specific recollection of actually looking at physiology journals on the question of the relationship between the hypopharynx and the ability to breathe?

FOWLER: I specifically did a PubMed search, which includes human physiology journals, and nothing came up on my search. So therefore, I did not read any physiology journals on this because nothing came up in the search.

BLACKWELL: So, Dr. Fowler, did you calculate quantitatively and include in your report what Mr. Floyd's EELV was while he was sitting on the sidewalk before the subdual and restraint began on the ground? FOWLER: No, I don't believe I did.

BLACKWELL: Did you calculate and record the amount of air he took in with each breath at any point in time either before or during the subdual and restraint on the ground?

FOWLER: No.

BLACKWELL: Did you do any quantitative assessment in your report for the time while he was sitting on the sidewalk by the Dragon Wok of whether his breathing, his EELV was either normal or whether it was abnormal?

FOWLER: No, I did not.

BLACKWELL: Incidentally, if his EELV was 89 -- that is, 89 millimeters of mercury -- would you agree that that would have been normal, then, before the time of his subdual and restraint on the ground?

FOWLER: I typically do not do pulmonary (INAUDIBLE) of the exact ranges of human beings are not something that I tacitly keep in my head. So, I don't know that number, counselor.

BLACKWELL: When Mr. Floyd then was laid prone on the street, when he is face-down, did you do any calculations of what any reduction may have been in his EELV due to him being placed in a prone position?

FOWLER: No.

BLACKWELL: When Mr. Chauvin had his knees on Mr. Floyd's back, left arm, and left side, did you do any calculations quantitatively for how that weight on the back would've had any impact on his EELV?

FOWLER: No, I did not.

[15:25:01]

BLACKWELL: Would you agree with me, then, that as the EELV goes down, do you agree that, as that goes down, it takes more work to breathe?

FOWLER: That is my understanding, but I'm not a pulmonary physician.

BLACKWELL: All right, so fair enough. For that, you would defer to a pulmonary physician?

FOWLER: For more detail, yes.

BLACKWELL: Let me ask you this, and you will tell me if I'm asking the wrong person, Dr. Fowler.

Would you agree that pressure on the soft side of the neck also narrows the size of the upper airway, the hypopharynx?

FOWLER: I have not seen any literature which indicates that that happens. That was one of the specific things I searched for, because you're

correct, counselor, it was not something that was put into the report. It is not something that I have ever heard of. And so I then went and looked for pressure on the neck causing restriction of the hypopharynx, and my literature search was not fruitful.

BLACKWELL: Thank you, Dr. Fowler.

If we might show Exhibit 941 that's already in evidence.

So, showing you, Dr. Fowler, what has been entered into evidence as Exhibit 941, if we look at the left picture, we can see here -- and I will represent to you this, Mr. Chauvin, who is on top of Mr. Floyd -- you can see here Mr. Chauvin's knee on the back part of the neck in the left photograph. Can you see that, sir?

FOWLER: Yes.

BLACKWELL: And then, on the right picture, you can see that his knee is on the side of the neck, on the soft side. Can you see that also?

FOWLER: Yes, on the back of the right side of the neck.

BLACKWELL: Yes, sir.

Thank you, Brett.

And I think you referred to Mr. Floyd's death as a sudden death event. Is that the word you used?

FOWLER: Yes, more sudden than prolonged.

BLACKWELL: If we focus on the first five minutes that Mr. Floyd is restrained on the ground, you were able to see in that five minutes, first saw Mr. Floyd just struggling to breathe, right?

ERIC NELSON, ATTORNEY FOR DEREK CHAUVIN: I'm going to object to that characterization.

BLACKWELL: I will rephrase it, Your Honor.

You could see in the first five minutes or hear Mr. Floyd was first calling out that he can't breathe?

FOWLER: Correct. Mr. Floyd verbalized "I can't breathe" multiple times.

BLACKWELL: And you then later heard him actually call out for his mother?

FOWLER: Yes.

BLACKWELL: And as time passed in that first five minutes, you could hear that his voice got thicker and quieter? You could hear that, couldn't you? FOWLER: I did not perceive that. But I'm no better at listening than

anybody else is, so anybody can make up their own opinion with regard to that.

BLACKWELL: But, to you're hearing, you didn't hear any change in Mr. Floyd's voice; is that what you're saying, sir?

FOWLER: Not that I noticed.

BLACKWELL: Did you notice that, during the five minutes, that his words got further apart?

FOWLER: Yes, they did.

BLACKWELL: Did you notice that, after roughly four minutes and 45 seconds, that Mr. Floyd went unconscious?

FOWLER: Yes.

BLACKWELL: Did you notice that some time after five minutes, he was found not to have had a pulse?

FOWLER: Correct.

BLACKWELL: In your report, you refer to this as a sudden death event. But in your report, in your findings, you don't record a time, do you, sir, for when the sudden death supposedly occurred, do you?

FOWLER: I don't specifically remember doing that, correct.

BLACKWELL: So, if we look at this continuum, from hearing George Floyd calling out that he can't breathe, to the point that he doesn't have a pulse, over that five-minute time period, is it fair to say that that is what you're referring to as a sudden death?

FOWLER: No.

BLACKWELL: All right.

Then -- all right. I asked you the question about when the sudden death occurred. Where in this spectrum

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