Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part II) 

On Monday morning (February 7) the federal criminal trial of former Minneapolis policemen (J. Alexander Kueng, Thomas Lane and Tou Thau) resumed in the federal courthouse in St. Paul before U.S. District Judge Paul Magnuson and a jury of 12 and 6 alternates. During the first phase of the trial (January 24-28, 31 and February 1-2), the prosecution presented 11 witnesses.[1]  The following is a summary of the testimony of the eight prosecution witnesses who testified in this resumption of the trial through February 11.[2]

Dr. David M. Systrom, Jr.

A physician at Boston’s Brigham and Women’s Hospital and assistant professor of medicine at Harvard Medical School and an expert witness for the prosecution, Dr. Systrom first described how the lungs and diaphragm work: breathing in compresses the stomach, spleen and liver with carbon dioxide being the waste product of cellular metabolism, and if it does not leave the body, it will build up in blood and tissue (acidosis.)

In his opinion, George Floyd died of asphyxia due to compression of his upper airway and inadequate breathing caused by being held in prone position. Yet this “was an eminently reversible respiratory failure right up until the time he lost consciousness.” It “was quickly reversible if the impediments to breathing were removed.” But they were not removed, and the “fatal combination” of “obstruction and restriction” of his breathing ultimately caused him to lose consciousness and his heart to stop.

Dr. Systrom noted how “Floyd’s position on the ground with his arms cuffed behind his back and the officer on top of him was problematic” as the arms and shoulders work as “adjunct respiratory  muscles” to help create space for full diaphragmatic breathing.  This restricted breathing resulted in low lung volume and inability to draw sufficient breathe leading to complaints about “shortness of breath” followed by Floyd’s loss of consciousness.

Also supporting Systrom’s opinion was Floyd’s end-tidal carbon dioxide level of 73 milliliters of mercury, twice the normal level and “life threatening” and often associated with an increase in the hydrogen ion concentration in the blood and low oxygen. In addition, he testified that there was no evidence suggesting a heart rhythm disorder or effects of methamphetamine or fentanyl.

Even after Floyd’s heart stopped, Dr. Systrom testified, there was still a chance to save him if CPR had been started immediately, but that did not happen.

Nicole Mackenzie

MPD’s medical support coordinator, Mackenzie testified that Kueng and Lane recently were in her MPD academy “emergency medical responder” class. They were taught about the need to roll subjects into the “side recovery position” so they could breathe instead of keeping them prone on their stomachs. They also were taught that responders have a duty of care to people in medical emergencies.

Kueng and Lane, she testified, acted inconsistently with that training when they continued to restrain Floyd after he became compliant and showed clear signs of needing help, including struggling to breathe.

When Mackenzie was asked about Thao, his attorney’s objection was sustained because Thao was not present in the video shown by Mackenzie.

That attorney presented PowerPoint training materials used by MPD until last year showing officers pinning a man down by his neck when responding to an excited delirium call and another showing a nude man punching through a wooden fence and fighting off a horde of police officers trying to subdue him. Under those circumstances, Mackenzie said, “your normal techniques for compliance might not work” and restraining someone, even with a knee, might be a life-saving measure.

Vik Bebarta

Another prosecution expert witness was Vik Bebarta, professor of emergency medicine, toxicology and pharmacology at the University of Colorado in Denver. She testified that Floyd died from “a lack of oxygen to his brain” when he was “suffocated and his airway was closed [and] he could not breathe.” “When the airway is blocked, you pass out, stop breathing and your heart stops.”

In addition, he said that the amounts of methamphetamine and fentanyl were too low to have caused his death. Videos of Floyd in Cupp Foods before the encounter with the police outside showed him carrying a banana and talking to clerks and other customers. Floyd was alert. “There is no sign that he was showing any signs of an imminent drug overdose.”  In contrast, someone “heavily impaired would not laugh or smile or have a conversation.” In addition, Floyd subsequently was able to walk handcuffed with police from his car to the police car across the street.

Bebarta also said Floyd did not display any symptoms typically associated with the excited delirium condition, such as high pain tolerance, superhuman strength and endurance and he did not die from what would be referred to as that condition.

Under cross examination, Bebarta admitted that police officers do not have the education and experience of medical doctors, but they learn basic life support and “have the ability to check a pulse and check for breathing.”

Bebarta also noted the three-minute lag between (a) paramedic Derek Smith’s arriving on the scene and checking Floyd’s carotid artery for a pulse  and (b) the start of chest compressions in the ambulance when every minute of delay in starting CPR reduces a patient’s chances of survival by 10%.

Under cross-examination by Paule, Bebarta says the slang “speedball” refers to Heroin and cocaine. Sometimes people “rectally” take drugs that sometimes is referred to as “hooping.” “Excited delirium” is not a diagnosis and does not have a good list of symptoms, but often shows as agitation with psychosis. Floyd did not exhibit delirium.

McKenzie Anderson

A scientist with the Minnesota Bureau of Criminal Apprehension, Anderson was in charge of processing Floyd’s car and one of the squad cars on May 25, 2020. She testified that pills found in his car tested positive for methamphetamine.

Under cross-examination by Gray, Anderson says on 5/27/20 she seized from Floyd’s car: shoes, strap and blood stains. She did not see or seize any pills. This search was looking for blood evidence, counterfeit money and a cell phone.

She also said that a lab determined that a pill from the squad backseat contained methamphetamine and Floyd’s saliva and thus probably came from his mouth. From Floyd’s car she seized $20 bills that turned out to be counterfeit, which are illegal to possess.

In a December 2020 search of Floyd’s car, she collected two pills that later were identified as a “mixture of fentanyl and methamphetamine.”

Richard Zimmerman

A MPD Lt. and its most senior officer, Zimmerman sais if an officer (from lowest in rank to chief) sees another officer using too much force or doing something illegal, you need to intervene and stop it.

On 5/25/20 at home, he received call to go to 28th & Chicago because an arrestee had to go to hospital. There he met officers outside Cup Foods about 90 minutes after Floyd died. He asked Lane and Kueng what’s going on.

Thomas Lane’s body cam video showed him telling Zimmerman that they did not know Floyd’s condition and that Floyd seemed like he was on something, “just kind of paranoid.” Nor did Lane say that Floyd had been pinned under Chauvin’s knee for more than nine minutes or that the officers could not detect Floyd’s pulse or that he had appeared to stop breathing.

Zimmerman testified, “The knee on the neck—the officers should have intervened at that point and stopped it. . . . It can be deadly.”  And “rank and seniority don’t change the duty to intervene.” Moreover, Zimmerman admitted he had thought poorly of Chauvin and “I think it’s pretty much known throughout the department that he’s a jerk.”

Kelly McCarthy

McCarthy, the Mendota Heights Police Chief, testified in his role as Chair of the Minnesota Board of Peace Officer Standards and Training, which licenses all officers in Minnesota. He said, Once someone is in your custody [as an officer], they are essentially your baby. You have restricted their freedom of movement. . . so there are things they can no longer do for themselves, so because you’re the one who took them into custody, you are now responsible for those things.” These officers’ training includes learning about “positional asphyxia” and the risk of handcuffing someone, use-of-force and civilians’’ constitutional rights. Training on use-of-force and firearms is annually required.

Alyssa Funari

On May 25, 2020, Ms. Funari, then 17 years old, was at Cupp Foods and observed the police restraining George Floyd on the pavement. His distress, she testified, was obvious to several bystanders, as they observed the policemen ignore pleas to relent and render aid. She said she “instantly knew Floyd was in distress. . . He was moving, making facial expressions that  he was in pain. He was telling us he was in pain.” She warned the officers that Floyd was near unconsciousness. At one point, she “observed that over time he was slowly becoming less vocal and he was closing his eyes. He wasn’t able to tell us he was in pain anymore and he was just accepting it.” She said, “Is he talking now? He’s about ready to knock out.” Yet she did not see any of the officers provide aid to Floyd.

Under cross examination by Thao’s attorney, Robert Paule, Funari said, I “believe he [Thao] did look” at the other officers restraining Floyd. “He might not have been watching the whole time, but he knew what was going on.” He turned around “a few times” to observe the other officers and Floyd .

Matthew Vogel

A FBI special agent, Vogel presented snippets of bystander and police video with timelines and transcripts to help the jurors sort out sometimes confusing videos. It included video of Kueng and Lane talking to Sergeant David Pleoger about what had happened, but saying incorrectly that Floyd was still breathing when paramedics arrived and not saying anything about their inability to find Floyd’s pulse.

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[1] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part I), dwkcommentaries.com (Feb. 2, 2022).

[2] Olson, Pulmonologist says officers could have saved George Floyd’s life, StarTribune (Feb. 7, 2022); Karnowski & Webber (AP), Lung expert: Officers could have saved George Floyd’s life, AP News (Feb. 7, 2022); Mannix & Olson, Officers ‘inconsistent’ with medical training when they detained George Floyd, says police trainer, StarTribune (Feb. 8, 2022); Karnowski (AP), Police trainer testifies: Officers failed to aid Floyd, Twin Cities Pioneer Press (Feb. 9, 2022); Olson, Second physician testifies George Floyd died of asphyxia, not drugs or heart attack, StarTribune (Feb. 9, 2022); Karnowski (AP), Toxicologist: Drugs, ‘excited delirium’ didn’t kill Floyd, Assoc. Press (Feb. 10, 2022); Xiong & Olson, New footage played in federal trial shows officers did not tell superior that Floyd had no pulse, appeared to stop breathing, StarTribune (Feb. 10, 2022); Karnowski (AP), Lieutenant: Officers should have intervened in Floyd killing, AP (Feb. 10, 2022); Bailey, Officers charged in George Floyd’s killing omitted key details from the scene, Minneapolis officer testifies, Wash. Post (Feb. 10, 2022); Olson & Xiong, New body camera video: Officers didn’t tell second supervisor about restraint of Floyd, StarTribune (Feb. 11, 2022); Forliti & Karnowski, Teen bystander: Knew instantly Floyd was ‘in distress,’ Asoc. Press (Feb. 11, 2022); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune.

 

 

 

 

 

 

Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing

On July 7, the attorney for ex-officer Thomas Lane moved to dismiss the charges that he had illegally aided and abetted the May 25th alleged murder and manslaughter of George Floyd. The prosecution’s response is due on August 12 followed by a reply from Lane’s attorney with the hearing on the motion likely to be the one previously scheduled for September 11.[1]

The brief in support of the motion made the following arguments:

  1. “There is not substantial admissible evidence to survive a motion for a directed verdict that Thomas Lane aided and abetted second degree murder or manslaughter.”
  2. “There is no evidence in the voluminous discovery that Officer Lane played an intentional role in aiding the commission of a crime. There is no circumstantial evidence Lane knew that Chauvin was committing a crime. Hence, the legal requirements showing he acted with intent cannot be met.”
  3. “Lane did not intentionally aid, advise, hire, counsel, or conspire with Chauvin or otherwise procure Chauvin to commit second degree murder. Lane did not encourage any alleged criminal actions of Chauvin. He did not know and had no reason to believe that a third degree assault was being committed, nor did he intend for the restraints of his Floyd’s legs to help commit a crime.”
  4. “Lane did not know what Chauvin was thinking while restraining Floyd. Chauvin did not verbally tell Lane anything about his intentions other than waiting for the ambulance to arrive. Lane knew Floyd needed to be restrained and he knew Chauvin was authorized to use reasonable force to restrain.”

Lane’s attorney also submitted transcripts of the body-cam footage for Lane and ex-cop and co-defendant J. Alexander Kueng. Here are extracts from these transcripts:

  • When Lane approached the vehicle containing Floyd and two other individuals, Lane drew his pistol when Floyd did not immediately show his hands. Floyd said, “”I’m sorry, I’m so sorry. God dang man. Man, I got shot. I got shot the same way, Mr. Officer, before.”
  • When Lane ordered him to get out of the car, Floyd said, “Please don‘t shoot me, Mr. Officer. Please, don’t shoot me man. Please. Can you not shoot me, man?”
  • Lane and Kueng then grabbed Floyd’s arms, prompting him to say, ““I’m not going to do nothing… I’m sorry Mr. Officer, I’ll get on my knees, whatever.”
  • Lane then pulled Floyd out of the vehicle and asked the woman in the car (Schwanda Renee Hill), “Why’s he getting all squirelly and not showing us his hands, just being all weird like that?”
  • Hill: “I have no clue, because he’s been shot before.”
  • Lane: “Well I get that, but still when officers say ‘Get out of the car.’ Is he drunk? Is he on something?”
  • Hill: “”No, he got a thing going on, I’m telling you about the police … He have problems all the time when they come, especially when that man put that gun like that.”
  • After Kueng escorted Floyd from his car to a nearby sidewalk and sat him down, Floyd said, ‘Thank you, man. Thank you, Mr. Officer,” as Floyd remained cooperative. He gave Kueng his name and date of birth, adding once again that ‘I got shot last time, same thing, man.’”
  • “Kueng then explained to Floyd that he was being detained for suspicion of passing a fake bill. Floyd said he understood.”
  • Kueng: “And do you know why we pulled you out of the car? Because you was not listening to anything we told you,”
  • Floyd: “Right, but I didn’t know what was going on,”
  • Kueng: “You listen to us, and we will tell you what’s going on, all right?”
  • Floyd: “Yes sir.”
  • “Lane then asked Floyd if he was on something, while Kueng asked about the foam around his mouth. Floyd said he was scared, and that he had been playing basketball earlier.”
  • “The two officers then attempted to place Floyd in the back of [their]squad [car], while he again pleaded with them not to, saying he was claustrophobic.”
  • Lane or Kueng: “You can’t win.”
  • Floyd: “I’m not trying to win . . . I’ll get on the ground, anything.”
  • “After more struggle, Floyd began to collapse on the ground, saying, ‘I’m going to lay on the ground, oh, I’m coming down.’”
  • As Lane and Kueng attempted to put Floyd into the back seat of their squad car, Floyd said, “‘Oh man, God don’t leave me man, please man, please man,’ he pleaded, telling them he was claustrophobic as the officers repeatedly ordered him into the back of the squad.”
  • Lane or Kueng: “Man, you going to die of a heart attack. Just get in the car.”
  • Lane then offered to sit in the squad car with Floyd and turn on the air conditioner. Floyd said, “”I’m not that kind of guy, man, I’m not that kind of guy … and I just had COVID, I don’t want to go back to that.”
  • After Officer Chauvin arrived, he asked Kueng if the suspect was going to jail, and Kueng explained the man was under arrest for forgery.
  • Chauvin asked the other two officers if they had a “restraint,” and the officers (who?) called for “Code 2” for medics after Lane said the man had banged his head against the partition glass in the squad car, resulting in a cut.”
  • Chauvin told Floyd , “You’re under arrest, guy.”
  • Floyd responded, “”All right, all right. Oh my god. I can’t believe this. I can’t believe this … After Chauvin said, “so you’re going to jail,” Floyd said, Mom, I love you … Tell my kids I love them. I’m dead.”
  • Floyd then was placed on the pavement with Lane holding one of his legs while Kueng was holding his back. Floyd kept saying, “Mama, mama, I can’t breathe. I’m through, I’m through. I’m claustrophobic. My stomach hurts. My neck hurts. Everything hurts. I need some water or something, please. Please? I can’t breathe officer.”
  • As Lane asked Chauvin whether Floyd should be rolled on his side, Chauvin and Kueng said not to do so, and one of the officers called to upgrade the medics to Code 3.
  • Floyd’s final words: ““Come on, man. Oh, oh. l cannot breathe. Cannot breathe. Ah! They’ll kill me. They‘ll kill me. I can’t breathe. Can‘t breathe. Oh!” and “Ah! Ah! Please. Please. Please.”
  • After the medics arrived, Lane did chest compressions on Floyd.
  • One of the medics asked the officers, “Was he [Floyd] fighting with you guys for a long time?”
  • Lane: “ I mean a little bit, but not a long time, maybe a minute or two. We were just trying to get him in the squad and he came out the other end, so we were like we’ll just wait.”
  • Medic: “I wonder what he was on.”
  • Lane: “Not sure but he seemed very agitated and paranoid.”
  • Medic: “That’s a shame.”
  • Lane: “Yeah.”

According to the New York Times’ summary of these transcripts, Floyd told the police officers more than 20 times that he could not breathe and several times said the officers were killing him.

In addition, Lane’s court filing included a 60-page transcript of his interview by the Minnesota Bureau of Criminal Apprehension and that this transcript had Lane responding to the question of whether at any time he felt Floyd was having a medical emergency, with the following: “Yeah, I felt maybe something was going on.” The Times also says Lane’s attorney claims a police photo of the interior of Floyd’s car showed “two crumpled counterfeit $20 bills that were found between the center console and the passenger’s seat.”

Another article in the Washington Post asserts that the “transcripts make clear that Floyd was trying to cooperate with police but was deathly afraid of them, at times telling them that he had had covid-19 and was worried that he was going to die because he couldn’t breathe.”

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[1] Xiong, Former officer Thomas Lane’s attorney seeks dismissal of charges in George Floyd killing, StarTribune (July 8, 2020); Olson. Body camera transcripts: George Floyd repeatedly begged police not to kill him, StarTribune (July 8, 2020); Staff Reports, Read the transcript of Thomas Lane’s body camera footage during George Floyd call, StarTribune (July 8, 2020); Staff Reports, Read the transcript of J. Alexander Kueng’s body camera footage during George Floyd call, StarTribune (July 8, 2020); Memorandum Supporting Motion To Dismiss, State v. Lane, Case No. 27-CR-20-12651 (Henn. Cty. Dist. Ct. July 7, 2020); Oppel, New Transcripts Detail Last Moments for George Floyd, N.Y.Times (July 8, 2020); Bailey, George Floyd warned police he thought he would die because he couldn’t breathe, according to body camera transcripts, Wash. Post (July 8, 2020); Wernau & Barrett, Attorney for Former Officer Asks Court to Dismiss Abetting Charges in George Flynn Killing, W.S.J. (July 8, 2020); George Floyd told officers ‘I can’t breathe’ more than 20 times, transcripts show, Guardian (July 8, 2020).