Expert Witnesses For Chauvin Trial Display Credibility Problems In and Out of Court

By Tigger Lunney and King Demetrius Pendleton

In the two days since the case for the defense in the trial of Derek Chauvin for the murder of George Floyd began in earnest, two key witnesses have taken the stand. Tuesday, it was Barry Brodd, a former police officer and trainer billed as a use of force expert. Today, it was Dr. David Fowler, former Chief Medical Examiner for the State of Maryland.

It’s notable that in that role, Dr. Fowler’s office declared Freddie Gray’s 2015 death in the back of a police van at the hands of six Baltimore (MD) Police officers a homicide. What’s exponentially more notable is that in the same role Fowler repeatedly ruled out homicide in the deaths of Black men at the hands of police, and is currently facing a civil lawsuit accusing him of deliberately covering up the 2018 murder of 19 year old Anton Black by police in Greensboro, MD by ruling it an accident. That accident? Black was held in a prone position, with police on top of him, for six minutes—five of them after being handcuffed.

The facts of Fowler’s history were not addressed in court today. It’s unclear whether Judge Peter Cahill would have allowed prosecution attorney Jerry Blackwell to pursue this line of questioning, although it certainly speaks to Fowler’s credibility as a witness.

Similarly, on Tuesday there was no mention that Brodd was the use of force expert who testified in the trial of former Chicago Police officer Jason Van Dyke for the 2014 murder of Laquan McDonald. There, Brodd testified that all 17 shots Van Dyke fired, including the seven that hit McDonald in the back as he walked away, were justified.

For both Fowler and Brodd, however, testifying did not go quite how they had hoped. (Both are paid expert witnesses who bill between $275-$350 per hour.) Brodd testified extensively claiming that nothing Chauvin did constituted excessive force. To Brodd, Chauvin kneeling on George Floyd’s neck, face down and handcuffed on the concrete, didn’t count as “use of force” but was instead “control.” This is a distinction that is not made by MPD policy, nor made by any of the expert witnesses or MPD officers who testified on behalf of the prosecution.

Between Brodd’s general demeanor and the illogical nature of his testimony, he already seemed on shaky ground going into cross examination. By the time he finished cross examination from attorney for the prosecution Steve Schleicher, it seems impossible to believe that any juror took him seriously. During cross, Schleicher backed Brodd into several corners, leading Brodd to a pattern of answering every question with “possibly” rather than yes or no. What most clearly hit home, however, was when Brodd testified that police should apply force until the person they’re holding is “resting comfortably” on the concrete.

“Did you say resting comfortably?” Schleicher asked, in disbelief. “So attempting to breathe while restrained is being slightly non-compliant?”

Comparatively, Fowler—divorced from the knowledge of his past history with police murder cases in Maryland—came off as a confident, if somewhat aloof, authority who during direct somehow managed to appear both hyper-organized (complete with PowerPoint slides) while also barraging the jury with information as he and Nelson seemed to jump from topic to topic. The effect of this was to make it much more difficult to assess what information he presented was important, or even relevant. True to how Nelson’s been seeking to achieve reasonable doubt, Fowler testified to multiple explanations for George Floyd’s death that Nelson has already rolled out: heart disease, drug overdose, and stress, while introducing a new one: potential carbon monoxide poisoning due to Floyd being close to the exhaust pipe of the squad car. Through Fowler, Nelson also officially introduced for the first time evidence that Floyd had something white in his mouth that might have been a pill when first approached in his car. Fowler’s conclusion was that the manner of George Floyd’s death was impossible to determine.

Fowler's testimony drew a mixed response from the jury, with some taking copious notes while at least one fell asleep. The jury was very attentive, however, for cross-examination. Attorney for the Prosecution Jerry Blackwell immediately challenged Fowler on multiple points, and the change in Fowler’s demeanor was noticeable. During direct, he appeared almost arrogant in his knowledge, but minutes into cross examination had him leaning away from Blackwell, an expression that mixed annoyance and sadness on his face, as Blackwell challenged him on his preparation and the accuracy of the information.

Blackwell called Dr. Fowler out on his testimony that Chauvin wasn’t putting significant pressure on Floyd’s neck, pointing out that he just trusted the defense’s information about Chauvin’s weight and not taking into account the weight of the equipment Chauvin was wearing. Blackwell also cut down the carbon monoxide theory, asking, “Cutting even more to the chase, how do you know the car was even running?” Fowler stuttered a bit saying that he inferred by looking at liquid on the tailpipe. (The squad car was, in fact, a hybrid. The water dripping from the tailpipe that Dr. Fowler used as an indication that it was running actually indicates that it was running on battery and the gasoline engine was cooling.)

When pressed by Blackwell, Dr. Fowler also conceded that Floyd should have received medical attention as soon as Chauvin and the other police officers realized he didn’t have a pulse.

Blackwell then asked, “Are you critical” of the fact Floyd didn’t get medical attention immediately?

“As a physician, I would agree,” Fowler said, almost deflated.

The big moment for Blackwell and the prosecution, however, was when Fowler was cross-examined about the white object in Floyd’s mouth. Nelson has worked every angle to introduce testimony demonizing George Floyd, including video of Floyd’s 2019 arrest and calling both Shawanda Hill and Morries Hall (who were in the car with Floyd) to testify. (Judge Cahill ruled that Hall did not have to testify this morning after Hall stated in court that he intended to invoke his 5th Amendment right to avoid self-incrimination.)

So asking Fowler, a forensic pathologist, if he saw a white object in Floyd’s mouth on body cam footage was Nelson taking an extra dig at Floyd’s image to the jury while leading into testimony from Fowler about Floyd’s drug use. It backfired spectacularly, however, when Blackwell showed Fowler the security video from Cup Foods that showed Floyd chewing something white in his mouth, apparently gum.

When Blackwell pressed him, Fowler stated that he “never” said that the object was a pill, dismantling that piece of Nelson’s attempt to impune Floyd to the jury.

On Thursday, Nelson is expected to call a toxicologist, and possibly one or more additional witnesses. It’s possible that the prosecution will then call another forensic pathologist to provide a direct rebuttal to Fowler’s testimony before testimony wraps. Judge Cahill has not stated any change to his plan that closing arguments will begin Monday, with jury deliberation to begin immediately after.