New documents in the George Floyd investigation have been released and it is likely that they will be key to the criminal defense of the accused officers in that case. The documents contain accounts of extremely high levels of fentanyl in Floyd’s blood that could have contributed to his death. The documents are likely to feature significantly in the criminal defense of former officers Tou Thao, Derek Chauvin, J Alexander Kueng and Thomas Lane. While admissibility can be challenged, they reflect findings that will be raised at trial on the impact of these drugs in Floyd’s system. However, the documents in my view do not conclusively establish that the drug use was the cause of the death. Indeed, some reaffirm the view of prosecutors. I do not believe that these documents should not be treated as determinative evidence by the court in pre-trial motions. In other words, this should go to a jury.
The newly released documents include three documents that address the fentanyl issue but there is a critical point of conflict in the accounts. One document is a memo from county attorney Amy Sweasy where she offers a summary of a conversation with Andrew Baker, the Hennepin County chief medical examiner. It includes the following account:
Fentanyl 11. He said, “that’s pretty high.” This level of fentanyl can cause pulmonary edema. Mr. Floyd’s lungs were 2-3x their normal weight at autopsy. That is a fatal level of fentanyl under normal circumstances. . . . AB said that if Mr. Floyd had been found dead in his home (or anywhere else) and there were no other contributing factors he would conclude that it was an overdose death.
That is clearly something the defense could highlight to the jury. Floyd is shown in videotapes complaining that he could not breathe when he was not under restraint. However, the handwritten notes from a meeting contains a notable countervailing statement:
Fentanyl at 11 ng/ml — this is higher than chronic pain patient. If he were found dead at home alone & no other apparent cause, this could be acceptable to call an OD. Deaths have been certified w/ levels of 3.
Baker: I am not saying this killed him.
That is an important distinction since the level of fentanyl could have been a contributor but the legal cause remained the kneeling on the neck of Floyd. Indeed, there is a telling third document from the Armed Forces Medical Examiner System. The federal officials asked for the review and the document states:
The Office of the Armed Forces Medical Examiner agrees with the autopsy findings and the cause of death certification of George Floyd as determined by the Hennepin County Medical Examiner’s Office. His death was caused by the police subdual and restraint in the setting of severe hypertensive atherosclerotic cardiovascular disease, and methamphetamine and fentanyl intoxication. The subdual and restraint had elements of positional and mechanical asphyxiation. The presence of sickle cell trait is a significant finding in this context.
We concur with the reported manner of death of homicide.
The point is that the fentanyl could have made Floyd more vulnerable or susceptible to a fatal medical emergency. However, that would not in my view clearly negate the criminal charge. There is a torts doctrine that “you take your victims as you find them,” meaning that you are still liable for injuries or deaths even if the outcome was magnified by a pre-condition. So, the fact that someone was more susceptible to greater injury due to age or medical condition does not excuse your liability for the full damages when your intentional or negligent tort was the cause of the injury. Obviously, that is a torts and civil rule rather than a criminal standard. However, it captures the notion that the first question is whether the conduct was excessive or violative before looking at the harm caused by the violation.
Thus, the recently released material cuts both ways for the defendants. To the extent that the officers heard Floyd complaining that he could not breathe while still in the car only confirms that he had some medical emergency or condition. That could make the conduct of the officials more sanctionable, not less. Officers commonly deal with people who have drugs in their system and are legally required to consider any medical threat in how they address such encounters. They can argue that the drug use was a type of superseding intervening factor. However, these documents still support the prosecutors on the ultimate cause of death in the level of restraint used by the officers.