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As the criminal justice system continues its examination of the circumstances that lead to the death of George Floyd, days 9 and 10 of Derek Chauvin’s trial have focused on the testimony of a series of medical witnesses for the prosecution. The latter included the emergency room doctor who attended to Floyd, and the Hennepin County Medical Examiner who performed the autopsy.

Experts retained by the prosecution included a pulmonologist, an emergency medicine specialist (with experience training and treating police officers), and a forensic pathologist. To varying degrees, their testimony supported the contention that the way Floyd was restrained by officers interfered with the victim’s ability to breathe, and ultimately caused his death. (However, the defense successfully elicited from the Medical Examiner, Dr. Andrew Baker, that Floyd’s preexisting heart disease and fentanyl use were contributing factors.)

These medical witnesses should raise concerns about how heavily autopsy findings are relied upon to decide if officers should be held responsible for the death of a person in their custody. And that extends to both potential civil and criminal liability as state, local, and federal authorities, (such as district attorneys, the U.S. Justice Department, and local attorneys general), are increasingly being called upon to investigate police custody deaths for possible wrongdoing.

While the Floyd incident did result in a criminal indictment, the decision to prosecute officers is still quite rare. When public announcements are made that no criminal charges will be brought against the police, significant weight is often given to autopsy findings as to the cause of death. Defense attorneys, representing police officers in both civil and criminal cases, often rely heavily on autopsy findings to discount the significance of eyewitness testimony and even video footage.

But these medical witnesses illustrated, quite vividly and dramatically, that examination of a deceased person’s body has limitations in identifying cause of death -- particularly when officers’ actions may have prevented the person from taking in sufficient oxygen to sustain life. We learned from pulmonologist Dr. Martin Tobin the various ways that weight applied to a person (who is lying face down on a hard surface) can fatally interfere with breathing. Yet, at autopsy, there are often few, if any, physical signs that this occurred. And death investigations by medical examiners often look at factors beyond the autopsy evidence and frequently rely, quite heavily, on the police officers’ version of events.

Debra Cohen, co-chair of the Civil Rights Practice Group of Newman Ferrara LLP and an adjunct professor at Pace University’s Haub School of Law noted, “This case is unusual because of the amount of video footage that exists. But most situations aren’t as well documented and should require a greater commitment of investigatory and medical resources that are not weighted in favor of the police version of events.”