Floyd Defendant Accuses State of ‘Prosecutorial Misconduct’

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Tou Thao, one of the four Minneapolis police officers charged in the “murder” of George Floyd, filed a motion on Wednesday accusing the State of Minnesota with “prosecutorial misconduct stemming from witness coercion.” If Thao’s accusations are true, and they certainly seem to be, the State has allowed this trial to drift irredeemably far into the brave new world of mob rule.

The charges center on the testimony of Dr. Andrew Baker, the Hennepin County Medical Examiner.  Baker conducted an autopsy on Floyd on May 26, 2020, the day after Floyd’s death. As yet unaware of the politics of the case, Baker reported his findings honestly, namely 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.”

Three days later, the State filed its initial complaint against Derek Chauvin. According to the complaint, quoted by Thao,  “The full report of the ME is pending but the ME has made the preliminary findings. The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation.”

It appears that prosecutors came quickly to the realization that without a charge of asphyxia, they could not accuse Chauvin of Murder-2nd Degree. As of May 29, he had been charged only with Murder-3rd Degree and Manslaughter-2nd Degree, and neither of those charges would have satisfied the largely peaceful protestors busily burning down America

Enter Dr. Roger Mitchell stage left. A former Medical Examiner of Washington D.C. and current chair of the pathology department at Howard University College of Medicine, Mitchell spoke with Dr. Baker before Baker finalized his findings on June 1. Unsatisfied with the conversation, “Mitchell decided he was going to release an op-ed critical of Dr. Baker’s findings in the Washington Post.”  

According to Thao’s motion, Mitchell called Baker to give him a heads up on the Post article and warned him, “You don’t want to be the medical examiner who tells everyone they didn’t see what they saw,” adding that “neck compression has to be in the diagnosis.”

Following the two conversations, Baker issued a press release containing the final autopsy that now listed “neck compression” among the findings.  On November 5, 2020, state prosecutors met with Mitchell but have not shared the audio of that meeting, if one exists, with Thao’s defense team, Robert and Natalie Paule.

In the Chauvin trial, defense witness Dr. David Fowler, former chief medical examiner for the State of Maryland, ably refuted the asphyxia diagnosis. He argued that Floyd had likely died of a sudden cardiac event.

The physician with whom I have been consulting, Dr. John Dunn, a former chairman of the medico-legal committee for the American College of Emergency Physicians, has come to a similar conclusion. “Asphyxiation was not the cause of George Floyd’s death,” he argues. “It was cardiac arrhythmia during an episode of excited delirium, a well-known cause of sudden death.”

Eight days after Fowler’s testimony, Mitchell wrote an open letter to, among others, Brian Frosh, the Attorney General for the State of Maryland, calling for an “immediate investigation into the practices of the physician as well as the practice of the Maryland State Office of the Chief Medical Examiner (OCME) while under his leadership.” Fowler had served 17 years in that position. Less than 24 hours after seeing the letter, Frosh launched a review.

According to Thao’s motion, “The State… knew that a potential expert witness had coerced the State’s main expert witness/the only expert to perform the physical autopsy in the case of State v. Thao. The State did nothing in response to this coercion. Instead, the State knowingly allowed Dr. Baker to take the stand in State v. Chauvin and testified to coerced statements.”

Again, according to Thao’s motion, “Dr. Mitchell’s conduct meets the elements to be found guilty of committing the crime of coercion.” Thao argues that Mitchell used the threat of a Washington Post op-ed to coerce Baker into modifying his opinion. Once Baker obliged him, Mitchell did not follow through on the op-ed.

If that were not mischief enough, the Thao motion continues, “Mitchell unlawfully injured Dr. Fowler’s trade by penning an open letter which resulted in an investigation into every death report in Maryland during Dr. Fowler’s tenure.”

As to how Mitchell’s interference affects Thao and the other police defendants, Thao’s point is inarguable: “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 what has happened to Fowler — let alone to Barry Brodd, the defense’s use-of-force expert whose former home was smeared with pig’s blood following his testimony — Thao’s team will have an extraordinarily hard time recruiting any expert witnesses.

A day after Thao filed his motion, Judge Peter Cahill pushed back his trial and that of his colleagues from its August 23, 2021, scheduled date to March 22. The stated reason was to allow the federal civil rights case against the four to take precedence.  Who knows what the real reason was?

What is most disturbing for those who have been paying attention is that too many conservative commentators and Republican politicians have watched this unfold in silence. What will it take, one wonders, to get their attention?

Jack Cashill’s latest book, Barack Obama’s Promised Land: Deplorables Need Not Apply, is now on pre-sale. See www.cashill.com for more information.

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