Ethics Quote Of The Week: Prof. Jonathan Turley

“Not only could Chauvin be acquitted or left with a hung jury, but the impact could be the collapse of all four cases. That will be up to the jury. But if there is violence after the verdict, it will be far worse if the public is not aware up front of the serious challenges in proving this case.’

—Prof. Jonathan Turley in a column for The Hill, explaining that a conviction for Derek Chauvin in the George Floyd murder trial in Minneapolis is far from certain despite the news media refusing to inform the public of that fact.

As is too often the case, Turley professorially states a critical fact without appropriate indignation regarding its implications. Not only has the news media, in Turley’s words, “failed to shoulder their own burden to discuss the countervailing evidence in the case, ” it has done so because “there is a palpable fear that even mentioning countervailing defense arguments will trigger claims of racism or insensitivity to police abuse.” What are these, children? Journalists are supposed to be professionals. Yet Turley says—correctly, unfortunately—they they are deliberately misleading the public, and making a violent reaction to the eventual verdict in Chauvin’s trial more likely by feeding a false narrative rather than conveying essential facts.

Turley lists the reasons why proving murder beyond a reasonable doubt to a jury and a verdict that stands up to appeal in the case of George Floyd’ s death may be impossible:

►When called to the scene due to Floyd allegedly passing counterfeit money, Floyd denied using drugs but later said he was “hooping,” or taking drugs.

►The autopsy did not conclude that Floyd died from asphyxiation (though a family pathologist made that finding). Rather, it found “cardiopulmonary arrest while being restrained by law enforcement officer(s).” The state’s criminal complaint against Chauvin said the autopsy “revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease.” He also was COVID-19 positive.

►Andrew Baker, Hennepin County’s chief medical examiner, strongly suggestedthat the primary cause was a huge amount of fentanyl in Floyd’s system: “Fentanyl at 11 ng/ml — this is higher than (a) chronic pain patient. If he were found dead at home alone & no other apparent causes, this could be acceptable to call an OD (overdose). Deaths have been certified w/levels of 3.” Baker also told investigators that the autopsy revealed no physical evidence suggesting Floyd died of asphyxiation.

►The toxicology report on Floyd’s blood also noted that “in fatalities from fentanyl, blood concentrations are variable and have been reported as low as 3 ng/ml.” Floyd had almost four times the level of fentanyl considered potentially lethal.

►Floyd notably repeatedly said that he could not breathe while sitting in the police cruiser and before he was ever restrained on the ground. That is consistent with the level of fentanyl in his system that can cause “slowed or stopped breathing.”

►Finally, the restraint using an officer’s knee on an uncooperative suspect was part of the training of officers, and jurors will watch training videotapes employing the same type of restraint as official policy.

How often have you seen this list published in a major news source or heard it explained on a TV news show? For me, the answer is never, though I have accessed enough unbiased sources to know about those facts, which is why I have concluded that the prosecution itself is an abuse of prosecution ethics. The standard narrative from the mainstream media is that Floyd was “killed.” That description can be found in articles in print and around the web every day since the officer’s knee met the drug addict’s neck. The evidence is not at all clear that he was ‘killed.” If he died from a drug overdose, Floyd was responsible for his own demise.

Not for the first time in recent years, the news media’s craven abandonment of basic principles of ethical journalism is destabilizing the nation and our democracy. “Enemy of the people” is apt. In this instance, its bias and incompetence is likely to get many American killed, making the news media’s conduct far more deadly than Derek Chauvin’s .

24 thoughts on “Ethics Quote Of The Week: Prof. Jonathan Turley

  1. “That is consistent with the level of fentanyl in his system that can cause “slowed or stopped breathing.””

    Slowed or stopped breathing can also be caused by COVID-19. If Floyd was symptomatic, the drug could have exacerbated the problem. Unfortunately, it is not an unusual tactic for suspects to claim medical problems in order to delay being taken to jail. Floyd was probably his own worst enemy here.

    • Floyd had been his own worst enemy for a very long time prior to this. But of course you won’t hear that in the mainstream media either. That’s more justified in a criminal proceeding, since his prior record should not bear on the question of whether this officer’s heavy-handed tactics caused his death. However, there is no real justification for the media to build him up as a great guy and slap down anyone who criticizes that as a racist unless they are pushing a narrative.

  2. Care must be taken when talking about serum fentanyl concentrations, especially when throwing around terms like “lethal level”. 3 ng/mL is apparently the lowest known post-mortem concentration that’s been ruled an overdose. However, it’s certainly not typical of the blood concentration of typical overdose victims. In fact, 3 ng/mL is on the upper end of the normal therapeutic concentration for analgesia. A lethal dose is not a bright line, but a gradual scale where risk increases with dose.

    Here’s one study where they examined both overdose deaths and natural deaths where patients had been using fentanyl for pain. The mean concentration for the overdose patients was 26 ng/ml, whereas for the natural death patients it was 11 ng/mL.

    Which brings us to the second problem: Why would a patient who died a natural death have a serum concentration nearly 4 times the upper limit for analgesia? Most likely because of postmortem redistribution – fentanyl seems to be stored in fatty tissue and gets released into the blood post-mortem, resulting in concentrations that are much higher at autopsy. The same mechanism could be at work in the George Floyd case.

    So was George Floyd on fentanyl at the time of his death? Certainly. Was it enough to kill him? I’d call it “inconclusive.”

      • Reasonable doubt as to whether the restraint was the primary cause of death? Certainly. But that doesn’t mean the restraint can’t still be proven as a contributory cause beyond a reasonable doubt. There are several charges here, and I’ll wait for the jury charge to explain the degree of causation required for each under local law before I offer an opinion on whether the prosecution has proven it.

        • If there is a reasonable possibility that the fentanyl would have killed him, knee or no knee, he can’t be found guilty. They have to show that the knee was part of the cause beyond a reasonable doubt, meaning that what may have been a fatal doe of fentanyl wasn’t what it was.

          I don’t see how they can do that.

          • If there is a reasonable possibility that the fentanyl would have killed him, knee or no knee, he can’t be found guilty.

            It’s not just a question of whether the fentanyl reasonably could have killed him on its own, but whether it could have killed him just as quickly. Both sides will bring their experts, but I think they have a shot if the standard of causation is lenient enough.

            • It’s an interesting distinction, “just as quickly”.

              You’re right that it matters what killed him first. If John, after learning that his bitter enemy, Jane, was in palliative care for cancer, John decided to drive to the hospital and kill Jane before the cancer could get to her, then yes, John would be guilty of her murder.

              But this case isn’t nearly that cut and dry. Again…. this isn’t a 51% civil standard case. This is “Beyond a Reasonable Doubt”. Once the defense enters into evidence a plausible cause of death other than knee-to-neck asphyxiation, then it becomes the prosecution’s job to prove, beyond a reasonable doubt, that Chauvin’s knee, and not the Fentanyl in his system, is what actually killed him. What you’re saying is technically possible, but no amount of expert testimony is going to change the fact that overdoses are not an exact science; Just in this case alone, we’ve discussed how anything from 3ng/ml to 24ng/ml *could* be a fatal dose. And so the prosecution might, MIGHT, be able to swing a jury that it’s more likely that Chauvin’s knee caused Floyd’s death…. But prove that beyond a reasonable doubt? I don’t even know what that looks like in a case like this.

              As an exercise… Can you fabricate a case study that you think could actually convince a jury beyond a reasonable doubt, that Chauvin, and not Fentanyl, killed Floyd. You can change any facts in the case to fit your case except there’s still 11ng/ml of Fentanyl in his bloodstream, and understanding that the more things you have to change, the less likely it will be that it will apply in real life. (As an example… If the state’s autopsy was thrown out in favor of the family’s, that might have been enough to sway a jury… But we know in real life both autopsies are making it to trial.)

                • Do you think they’ll bring that up?

                  It seems like more of a tongue-in-cheek criticism of the CDC than an actual defense, and that might turn off the jury…. but on the other hand, you have an official government agency saying that it wasn’t Chauvin’s knee, of fentanyl that killed him, it was Covid.

                  • Possibly, but if the government starts listing people as ‘Covid deaths’ and wants them listed as murder victims too, it brings into question the honesty of the government that his bringing the charges. If they can’t be trusted to truthfully list Covid deaths, how can they be trusted to honestly file murder charges?

                  • I would! It’s like “Miracle on 34th Street”: a federal agency officially says that Floyd dies from the pandemic. How can a jury say beyond a reasonable doubt that Chauvin killed him?

          • Is the standard “part of the cause of death” or a “producing cause” with proper connection of the act (knee to the neck proximately caused Floyd’s death), and that Chauvin knew, or in the exercise of care of a police officer, should have known that kneeling on Floyd’s death would result in Floyd’s death? Seems to me that the fentanyl concentrations are going to be a huge obstacle for the prosecution, especially on second and third degree murder charges. There may be sufficient evidence for criminally negligent homicide but that is not a given. I don’t see how Chauvin is convicted. If the trial judge allows evidence of Floyd’s prior ODs while in police custody in as evidence, then Minneapolis is toast.

            jvb

    • It seems more likely when combined with the meth in his system, which as I understand it magnifies the effects of fentanyl.

  3. What a lot of people seem to have forgotten is that the standard of proof for conviction in a criminal case is beyond a reasonable doubt. If there is any reasonable doubt, then the prosecution must fail. This is not like a civil case, in which they simply need to show 51% more likelyhood to prevail. What a lot of people seem to have forgotten also, is that every criminal defendant is entitled to a fair trial by a jury that’s not so contaminated or biased that they can’t be objective. Thanks to the media, that’s almost impossible at this point. This defendant has a ready-made appeal already.

    As you’ve already pointed out, George Floyd was already heavily drugged up at the time of this incident. He was drugged up enough to act erratically to the point where the officers found it necessary to restrain him. He already had problems breathing and I’m sure the defense is going to make a lot of hay with that.

    Was it necessary to press his face down into the sidewalk and have him suck concrete for longer than was necessary to get him restrained? Probably not, but that’s 20/20 hindsight. Are the optics of a white police officer kneeling on a black man’s neck like a high school football player pressing the class nerds face into the gym floor simply because he can? Yes, that looks really bad.
    Did it kill him? Also probably not, or at least there is reasonable doubt as to whether it did.

    Could George Floyd have avoided this whole situation? Leaving aside the fact that he was not exactly a model citizen, yes he could have. He did not need to pass an obvious counterfeit bill. He did not need to be uncooperative when the police were called. He did not need to claim all kinds of problems to avoid being taken into custody. His best bet would have been just to go down to the station, go before a judge, and deal with this relatively minor issue. It’s not like he was someone with a clean record who wanted to avoid the consequences of having a mark on that record. It’s also not like butting heads with the police was going to get them to give him a break.

    However, because the media is firmly on the side of the narrative that George Floyd was an all around great guy and dad who was murdered by a racist cop, on a racist police force, that was part of a racist system for no other reason than the color of his skin, the public has heard nothing of these important issues. So, if the court and jury come to the quite reasonable conclusion that there is reasonable doubt here, it’ll be summer of 2020 all over again. Except this time the Feds won’t do a thing. This is the country we’ve created. Have fun.

    • There’s a part of me that wonders if the Feds will do something, though. It’s one thing to decry Donald Trump doing something so that you can accuse him of being a dictator and try to damage his re-election chances. It’s another thing to let cities burn while on your watch. The Democrats have demonstrated that they have no problem doing the exact things they criticized Trump for and can count on the news media spinning it in their favor.

      No doubt there will be violence. The Democrats may let it happen. Or, not wanting to damage their image too badly, they may take action.

      • The Feds won’t do shit if riots occur. They will just stand back and watch the ashes burn blacker, then tut-tut about how the system shouldn’t get people so angry. However, they will slap Chauvin with civil rights charges within the hour if he is acquitted.

    • The problem for Chauvin is acquitting him requires courage. I think there is a very good chance that the jurors lack that courage because they are very well aware of the “public’s” expected outcome. On top of that, there are so many appealable issues here. Any judge knows Chauvin can’t get a fair trial, but the judges are also very well aware of the backlash if they act to overturn a conviction.

      I think we have a good chance of a justice system lynching – Chauvin will be convicted and sentenced based on public sentiment and bullying, not the law.

  4. “…will trigger claims of racism or insensitivity to police abuse.”

    In my years in law school, it seemed like bizarre case outcomes were always attributed to broad social forces, usually classed-based. As I’ve gotten older, I’ve come to think that direct action – bribes and threats – was the more likely explanation. I think we’re back to that now, people are not concerned about appearing woke as they are afraid to lose their jobs, homes, lives.

  5. Not for the first time in recent years, the news media’s craven abandonment of basic principles of ethical journalism is destabilizing the nation and our democracy.

    It seems even worse than it was in 1994.

    http://groups.google.com/g/alt.rush-limbaugh/c/gZg_XyptjyU/m/NiPCvQIctwUJ

    Well I have to look that up for myself. I’m just going by what I
    see/read in the news media.

    – Darryl Hamilton

    That’s an interesting approach, kind of like trying to determine the actual
    intelligence and character of Black people by watching “Birth of a Nation”….

    – Christopher Charles Morton

  6. This morning HLN, (or CNN Lite) had its legal analyst preview the prosecution’s case, managing not to mention fentanyl or any of the problems with causation. He just said that the prosecution had to prove the knee was “a” cause. His analysis could have been the state’s closing argument. It was exactly what Turlley was talking about. Nobody hearing that would glean that the defense would be doing anything but denying “facts.”.

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