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.