The retconning of George Floyd, part two: the autopsy

Breaking down the lies, deception, and misdirection Derek Chauvin's defenders use to claim that the forensic evidence vindicates him

Protesters react to the guilty verdict in the Derek Chauvin trial (Photo by Scott Olson/Getty Images)

(Note: This is part two of a three-part series on the effort to retroactively justify Derek Chauvin’s murder of George Floyd. You can read part one here.)

In my first post about the documentary The Fall of Minneapolis and a column by Coleman Hughes promoting it, I looked at the false claim that what Derek Chauvin did to George Floyd couldn’t have been illegal because it was taught by the Minneapolis Police Department. What I found were a lot of half-truths, lies by omission, and outright falsehoods designed to advance a counter-narrative. In short, Coleman and the Free Press — a publication that advertises itself as the antidote to the gullible, lazy mainstream media — had gullibly, lazily swallowed a propagandistic film produced by a far-right media outlet, a former cop, and the wife of the head of a police union.

In this post, I want to dismantle the other major claim we see in the documentary, in Hughes’s column, and from Chauvin’s defenders: that the forensic evidence shows that Floyd died of a drug overdose or heart and lung failure, not because of Chauvin’s actions.

This, too, is just flat wrong, and to advance it, TFOM, Hughes, and others offer a mix of conspiracy theories, quack opinions from fringe “experts,” and a fundamental misunderstanding of how overdoses, forensic pathology, and death investigations work.

After that first post, I again heard from readers who said they had either been initially persuaded by Hughes’s column, or that they had continued to see otherwise reasonable people favorably sharing it, often to say it had made them rethink the case.

But this also isn’t just about Hughes’s column, or the documentary. It’s about an insidious counter-narrative that has been picking up momentum on the far right for months, and is now seeping into more mainstream outlets. Hughes’s article — and the reaction to it — shows how the claims made in TFOM are being laundered through more respectable, “heterodox” media outlets, podcasts, and pundits. Hughes himself just published a book, and was flatteringly profiled in the New York Times. He was on Bill Maher’s show, and will be moderating a panel discussion on Gaza (of all things) in New York later this month.

So I think it’s worth thoroughly explaining just how removed from reality these claims really are.

Hughes makes three key arguments about the autopsy on Floyd and other forensic evidence. First, he posits that Floyd could not have died from asphyxia because the autopsy doesn’t mention asphyxia, and found no physical injury to Floyd’s respiratory system. As I’ll explain, this reveals some basic ignorance of both autopsies and the mechanics of respiration.

Second, Hughes argues that there is ample evidence suggesting Floyd died of either a drug overdose or heart failure. This, too, is based on a misunderstanding of opioid addiction and overdose.

Finally, Hughes focuses on Andrew Baker, the Hennepin County medical examiner who did Floyd’s autopsy and wrote the autopsy report. And this is where things get especially weird.

Baker’s actions and comments throughout the Floyd case were puzzling and seemingly contradictory. On May 26, 2020 — 12 hours after Floyd died — he performed the physical autopsy. A short time later, he met with prosecutors and law enforcement officials, and made some now-infamous comments that strongly suggested he thought Floyd died of heart failure or a drug overdose. But several days later, Baker issued a document stating that Floyd’s death had indeed been a homicide, and that the police who restrained Floyd were responsible. He’d later testify to this finding at Chauvin’s trial — for the prosecution.

Chauvin’s more fringe defenders have seized on Baker’s apparently contradictory findings to argue that he was pressured into changing his conclusions by state officials and federal law enforcement, or that he was simply caving to the “woke mobs.” As I’ll explain, there are other, far more plausible explanations for Baker’s behavior that better fit the timeline and the evidence.

Hughes’s treatment of Baker is especially baffling. He, too, cites Baker’s initial comments to prosecutors strongly implying that Floyd died of natural causes. Hughes then builds Baker up as the only doctor who performed a complete autopsy and thus the only person in a position to know the truth. But Hughes never tells his readers that Baker ultimately ruled that Floyd’s death was a homicide, and he never mentions that Baker testified for the prosecution. These are glaring omissions.

In the end, Hughes writes, “Assessing the forensic evidence alone, I would not find it unreasonable to doubt that Chauvin caused Floydʼs death.”

I’ve read hundreds of autopsies over the course of my career. They’re full of medical jargon and, consequently, often difficult to understand. Even once you familiarize yourself with the technical stuff, you still won’t always see the full picture. Sometimes, for example, it isn’t about what’s in an autopsy report, it’s what isn’t included, but should be.

It can take a trained eye to spot such problems. I have a list of medical examiners I consult to walk me through autopsy reports. These are doctors I’ve found to be trustworthy — not just because they’re willing to criticize their colleagues when it’s merited, but also because they’re willing to tell me when my own hunch about a case is off base.

I don’t think experts are right about everything all the time. Hell, they often disagree with one another. And a big part of my beat has been reporting on how forensic experts are subject to their own biases and prejudices. But your own hunches and heterodox worldview don’t make you an expert, either.

When I published my own deep dive into the Floyd case and the problems with forensic death investigations for the New Republic, I interviewed a half-dozen medical examiners. I also spoke with several experts on cognitive bias, as well as attorneys who have litigated these issues.

If Hughes spoke with a single forensic pathologist or other subject matter expert for his column, he didn’t mention them. Perhaps he has some uncanny ability to quickly grasp the complex, jargon-riddled field of forensic pathology in the time it took to write his column. But his “assessment of the forensic evidence” contradicts the sworn testimony of two medical examiners, two pulmonologists, a cardiologist, an ER doctor, two EMTs, and a surgeon who trains police agencies on how to avoid in-custody deaths. And that’s just who testified in court. It also contradicts the overwhelming consensus of countless other medical specialists who weren’t directly involved in the case, but have reviewed the evidence.

Meanwhile, according to his website, Hughes is a 27-year-old “writer, musician, and host of the Conversations with Coleman podcast.”

I emailed Hughes to ask if he consulted with any forensic pathologists or subject matter experts for his column. He didn’t respond.

I also sent Hughes’s column to Joye Carter, the former chief medical examiner for Washington, D.C. Carter was also a consultant for the prosecution during Chauvin’s trial.

“I wish you could give me back the time I spent reading that,” Carter told me. “Who is that author? He strikes me as someone who’s both extremely confident in himself and also extremely naive. There are a lot of assumptions and conclusions in that article that just have no basis in reality.”

There’s more than one way to asphyxiate someone

To begin, let’s look at Hughes’s attempt to case doubt on the idea that Floyd died from asphyxia — or oxygen deprivation.

He writes:

Chauvinʼs knee was not on Floydʼs neck for 9 minutes and 29 seconds. It was probably on his neck for at most 4 minutes, after which it appeared to be “above the shoulder blades,” as one of the prosecutionʼs own witnesses conceded during Chauvinʼs criminal trial in 2021.

Hughes links to video of testimony from LAPD sergeant and police trainer Jody Stiger, whom the prosecution described as a national expert on police use of force. I watched Stiger’s testimony. I also looked through the transcript. I don’t see where Stiger says that Chauvin’s knee was on Floyd’s neck for “at most 4 minutes.” The only moment that comes close is when Chauvin’s attorney tries to get him to say that at one point, Chauvin’s knee was more between Floyd’s shoulder blades than on his neck. Stiger pushes back on this.

I can’t find any other source that makes the claim Hughes is making here. Martin Tobin, a pulmonologist who also testified for the prosecution, estimated that at least one of Chauvin’s knees (and he used both) was on Floyd’s neck for “at least 90 percent” of the nine-and-a-half minutes Chauvin was on top of him.

More importantly — and as Hughes would have discovered if he’d spoken to a forensic pathologist — this is all utterly irrelevant to the state’s case against Chauvin.

If your only source of information is a bullshit-powered documentary, I suppose it’s understandable why you might assume that the only way Floyd could have died of asphyxiation is if Chauvin knelt directly on his neck, crushed his windpipe, or manually restricted his airways in some other manner that would have shown up in an autopsy.

This is probably the most common misunderstanding among the right-wing pundits who claim Chauvin was wrongly convicted. The Daily Wire’s buffoonish Matt Walsh, for example, writes that, “The entire narrative surrounding the death of George Floyd . . . was that Chauvin’s knee blocked Floyd’s airway. That was supposedly why he ran out of oxygen and stopped breathing. Now, an expert witness — a prosecution witness, for that matter — was admitting under oath that Chauvin’s knee was not affecting Floyd’s airway at all.”

The claim that “Chauvin’s knee blocked Floyd’s airway” is not the “entire narrative.” It isn’t the narrative at all. It never was. Blocking the airways isn’t the only way to asphyxiate someone. And it isn’t what killed George Floyd.

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When I was researching all of this last year, two medical examiners told me about the term “burking.” It originates with William Burke, who carried out a series of brazen murders in Edinburgh, Scotland, in the late 1820s.

At the time, medical schools were in dire need of cadavers to use as teaching aides. Some were desperate enough to buy cadavers from shady characters, no questions asked. Burke and an accomplice first started gathering cadavers to sell by robbing graves. But they eventually figured out a less labor-intensive approach — killing people. After the pubs closed, they’d scout for inebriated victims. Burke and his accomplice would then jump a stumbling drunk and take him to the ground, after which one would then cover the victim’s mouth while the other sat on him. This combination not only resulted in a quick death from asphyxiation, it had the advantage of not leaving any signs of choking or strangulation. The two men killed more than 20 people this way before they were eventually caught after one target was less drunk than they had thought and successfully fought them off.

What these murders showed is that if you can’t properly expand your diaphragm to take deep breaths, you can die fairly quickly from asphyxiation. This is now more commonly called positional or mechanical asphyxia.

This is precisely what medical experts believe happened to Floyd. At various points over nine-and-a-half minutes, Chauvin and the other officers had multiple knees and elbows pushing down on Floyd’s back, wedged into his ribs, and jammed into the back of his neck. All of that pressure coming from multiple directions was collapsing Floyd’s diaphragm into the hard pavement. The handcuffs then further restricted his ability to move into a position that would allow him to expand his chest and ribs. All of this restricted Floyd to short, shallow breaths.

Shallow breathing doesn’t move inhaled air deep enough into the lungs to reach the alveoli, the grape-shaped sacs that exchange carbon dioxide for oxygen. After a couple of minutes, your oxygen levels drop, and your carbon dioxide levels soar.

Tobin explains how low oxygen levels can kill at the 1:05:56 mark in the video below. And you can see him discuss how the pressure on Floyd’s diaphragm prevented him from breathing properly at 1:34:32.

One quick note: As Tobin testified at trial, he and some other experts avoid the term asphyxia because it has both common and technical definitions. There are lots of different and often overlapping forms of asphyxia. So it can quickly get confusing. So instead of asphyxiation, Tobin says Floyd died of “low oxygen levels.” And some have suggested that deaths in this manner may be more attributable to the buildup of carbon dioxide than a dearth of oxygen. But it’s the same mechanical issue — an inability to take deep breaths.

Like many of Chauvin’s defenders, Hughes seems to think that the only way to asphyxiate someone is to manually restrict the airways, a process that would typically leave physical injuries on the body.

He writes:

“One week after Floyd died, mainstream media outlets settled on the narrative that asphyxiation was the cause of death . . .

But [the] one complete, documented autopsy of George Floyd— performed by Hennepin County medical examiner Dr. Andrew Baker about 12 hours after Floyd died . . . found no evidence of asphyxia. In fact, it found “no life-threatening injuries” whatsoever.

What it did find was that Floyd died of “cardiopulmonary arrest”—his heart and lungs stopped working—during “law enforcement subdual, restraint, and neck compression.”

Every medical examiner I spoke to said Baker’s failure to find “life-threatening injuries” in the autopsy just isn’t significant. Again, it is not unusual to asphyxiate someone without leaving any physical injuries to the respiratory system. And as I pointed out in my previous post, Baker did find abrasions from where Floyd’s face and shoulder had been pushed into the pavement.

For similar reasons, it also isn’t suspicious that Baker found no evidence of asphyxia in his initial report. That report was a documentation of what Baker found when he opened Floyd’s body. If Floyd did indeed die of mechanical or positional asphyxia, it’s understandable that a medical examiner might not consider either until later, after looking at other evidence like body cam and cell phone footage.

“That’s the thing about positional asphyxia,” a former president of the National Association of Medical Examiners told me last year. “It can be a difficult thing to diagnose because it may not leave any signs of injury. If there are no injuries, there’s nothing to document. You wouldn’t start considering it until you rule other possibilities out, and start weighing what you did find against police reports, witness statements, and in any video that may be available.”

Judy Melinek is a medical examiner who formerly worked for the city of San Fransisco and Santa Clara County, California, and now works in New Zealand. She’s also a former member of the board of directors for the National Association of Medical Examiners. She offered a helpful analogy: “If you sleep on your arm wrong, it starts to tingle. Eventually it will go numb. This is because you’re depriving it of oxygen. But there won’t be any bruises or injuries on your arm. It’s the same concept here. . . . it’s definitely possible to kill someone from asphyxiation without leaving any signs of injury.”

This doesn’t mean Baker’s report was flawless. As Hughes points out, Baker concluded in his initial report that Floyd died of “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.”

I’ve asked a number of medical examiners to parse this phrase. Most told me something similar to what Florida forensic pathologist Stephen Nelson told a local news station in the clip below. (See the 1:02:47 mark): Baker’s top-line cause of death, “cardiopulmonary arrest,” is not particularly insightful. A couple forensic specialists told me this language is vague to the point of cagey. It just means Floyd’s heart and lungs stopped working. But this is ultimately how everyone dies.

But like Nelson, all of the medical examiners I consulted also said that Baker’s phrasing isn’t inconsistent with the evidence the state presented at trial. And as Nelson says in the clip, the other phrase Baker uses — “complicating law enforcement subdual, restraint, and neck compression” — is a (somewhat garbled) description of positional asphyxia.

After Baker’s initial comments to prosecutors were made public, George Floyd’s family commissioned two medical examiners for a second opinion on Baker’s autopsy. This is not uncommon in a controversial case. Understandably, Floyd’s family didn’t trust the state to be impartial.

Hughes expends quite a bit of copy disparaging this second opinion. He writes:

The second so-called “autopsy”—paid for by Floydʼs family—was hardly of equal significance. Unlike Dr. Bakerʼs report, it was both incomplete and undocumented. Incomplete because the pathologists did not have access to Floydʼs toxicology report, his tissue samples, and even some of his organs . . . And undocumented because the two forensic pathologists who performed it have never published a final autopsy report, despite saying that they would.

Most of this is true. But save for the last part, none of it is unusual. Second opinions about a medical examiner’s conclusions are often and necessarily based on the original autopsy report. A thorough autopsy involves cutting up the body, removing and weighing organs, and disrupting the corpse in lots of other ways. You just can’t do many of these procedures more than once, and it can be difficult for a reviewing doctor to distinguish legitimate injuries from the damage done in the first autopsy. Sometimes, by the time there’s enough doubt to ask for a second autopsy, the body may have already been embalmed.

So second opinions about autopsy reports are often based on photos, notes, and reports from the original autopsy. This doesn’t mean they’re wrong, or that they have no value. Second opinions can and have exposed deficiencies and incompetence by state medical examiners.

Hughes goes especially hard at celebrity medical examiner Michael Baden, one of the two doctors hired by Floyd’s family. He criticizes Baden’s work for O.J. Simpson’s defense, as well as his work in the Michael Brown case.

I’ve interviewed Baden several times over the years. I’ve often found him frustrating. He’s stubborn, extremely set in his ways, and as Hughes points out, has a reputation as a publicity hound.

Years ago, I criticized Baden for his reluctance to call out fellow medical examiners for egregious misconduct. While Baden helped exonerate two men in Mississippi who had been wrongly convicted based on junk forensics, for example, he continued to defend Steven Hayne, the medical examiner partially responsible for those convictions. I also criticized Baden during the Michael Brown case for his apparent outsourcing of much of the autopsy analysis to a charlatan with a history of lying about his credentials.

That said, I think it’s a bit much to say Baden has had a “shameful career” as Hughes writes. He worked in public service for decades, and often worked long hours in offices with a shortage of qualified medical examiners. He also helped overturn a lot of wrongful convictions.

But more importantly, this is all a revealing bit of deflection, because the medical examiners hired by Floyd’s family never testified at Chauvin’s trial, and their findings had no impact on the guilty verdict.

And even as he tears down Baden, Hughes fails to mention that Baker, the medical examiner he touts as the only person to have done a “complete, timely, documented autopsy” on Floyd, ultimately agreed with Baden on his most important finding: that George Floyd’s death was a homicide.

You can watch this portion of Baker’s testimony at the 48:45 mark of this video.

For all of Hughes’s misdirection, the TFOM documentary is even more dishonest on this issue. On the “research” page of the film’s website, the producers write, “The word ‘homicide’ was not written in the official autopsy report.” One of the producers reiterated this claim in his interview for Glenn Loury’s podcast.

You need only rudimentary knowledge of how death investigations work to understand just how deceptive this is.

Medical examiners are asked to make two determinations when investigating a suspicious death — the cause of death, and the manner. Cause of death is a medical determination. A typical cause of death might be cardiac arrest, asphyxia, or blood loss.

Manner of death, however, is a legal determination. It’s the mechanism by which someone died. Typical manner of death determinations include homicide, accident, natural causes, suicide, or, if there is insufficient evidence, “undetermined.”

It isn’t at all surprising that the word homicide didn’t appear in the initial autopsy report Baker wrote on May 26th. It wasn’t the purpose of that report. That report was about Floyd’s cause of death, not the manner. The report doesn’t mention any other manner of death, either.

But it gets worse. Baker explicitly told prosecutors at the time that he had not yet determined a manner of death because “his final report is not complete.” He also told them that he had yet to watch the videos of Floyd’s death, and had deliberately avoided doing so because he didn’t want to bias himself before conducting the autopsy.

Amusingly, the documentary itself inadvertently reveals this when it cuts to shots of the memos prosecutors wrote after speaking with Baker. This isn’t what the film wants you be focusing on. But it’s right there.

I’ve taken a couple screenshots. (The highlighting is from the documentary.)

Note the second paragraph of this memo:

Or the last paragraph of this one:

So yes, after completing the physical autopsy, Baker told prosecutors that Floyd had a heart condition, and fentanyl in his system. But Baker also told them that he had yet to review all the evidence, including full toxicology reports and all of the video footage. So he had yet to issue a final report.

On June 1, 2020, after reviewing the videos and receiving the full toxicology reports, Baker reached a decision about Floyd’s manner of death, and released a supplement to the autopsy report. In this document, he clearly writes that Floyd’s manner of death was homicide.

This is easily the most important finding Baker makes. It’s what allows the state to proceed with criminal charges. Yet both Hughes and TFOM act as if it doesn’t exist.

While Hughes simply neglects to mention Baker’s testimony at trial, the documentary addresses it by dangling a conspiracy theory. It interviews a general surgeon identified as Tom Haney, who makes a pretty whackadoodle allegation. “The official report . . . I’m told was changed after the family had a review by two other forensic examiners.”

Here’s the clip:

“Tom Haney” appears to be Paul Thomas Haney, a surgeon from Warsaw, Indiana. It isn’t clear why his opinion would be relevant here. Haney doesn’t elaborate on who “told” him the autopsy was changed to appease Floyd’s family.

What is clear is how the filmmakers found Haney: He had been corresponding with Chauvin over email. In one of those emails, Haney suggests that the FBI deliberately altered the results of Chauvin’s autopsy. Why? According to Haney, because they “wanted a racial death during police custody to further their narrative of racial division.”

Because if there’s one thing the FBI is known for, it’s falsely accusing law enforcement of racism!

The documentary offers no evidence for this conspiracy, other than that FBI agents were present early on in the case, which isn’t surprising given how quickly Floyd’s death blew up into a national story.

Getting back to Hughes, he’s right that there were some discrepancies between Baker’s autopsy report and the second opinion from Baden and Allecia Williams, the other medical examiner hired by Floyd’s family. The consensus among medical examiners I’ve spoken to is that both had some deficiencies. But the discrepancies were over the cause of Floyd’s death, not the manner. On manner, they agreed.

Hughes didn’t need to consult with medical examiners himself to have better understood all of this before writing his column. He could have just literally just read the New York Times. At the time of Chauvin’s trial, the Times asked a group of medical examiners about the differences between Baker’s conclusions, and those of Baden and Wilson. They carefully explained all of this — the issue of positional asphyxia, why it doesn’t matter that Baker’s autopsy found no fatal injuries on Floyd’s body, all of it. It’s all right there.

I suspect Hughes thinks the Times was spearheading the “mainstream media narrative,” he derides, but this wasn’t a reporter or columnist opining about Floyd’s manner of death. It was a bunch of medical examiners.

Finally, some have defended Chauvin by arguing that he clearly didn’t intend to kill Floyd that day. He was just trying to restrain an uncooperative suspect. Maybe he failed to follow a procedure or two, but it’s unreasonable to expect a cop to have known about shallow versus deep breathing, carbon dioxide levels, or how the alveoli work.

Hughes hints at this defense in his column:

. . . you could make the case that Chauvin departed from his training by failing to roll Floyd onto his side—into what the MPD use-of-force manual calls the “side recovery position”—once he lost consciousness. But that error may or may not have amounted to a crime, and surely would not have amounted to felony murder.

Here’s the problem: Police officers don’t need to understand the technical jargon to know that it’s dangerous to put weight on the back of someone who is prone and handcuffed. The people who do understand the technical stuff have been sounding the alarm about these dangers for years. This is why, as I documented pretty extensively in my previous post, police departments across the country — including MPD — have long emphasized the importance of turning prone suspects on their side or putting them in an upright position. In fact, most departments explicitly warn officers that failure to abide by this training can result in death.

These policies have been taught at the largest police agencies in the country since the 1990s. It became a particular point of emphasis at MPD after Minneapolis officers killed David Smith under strikingly similar circumstances in 2010.

There’s just no way Chauvin wouldn’t have known that he was putting Floyd’s life in danger. And this is where his criminal culpability becomes inescapable. MPD training materials make clear that positional asphyxia can be fatal. Chauvin disregarded that training, not just in kneeling on Floyd’s back and neck for an extended period of time, not just in ignoring the requirement to turn prone, handcuffed suspects onto their side, but also in his failure to monitor Floyd’s breathing and to look for any signs of distress. He disregarded pleas from eyewitnesses, cautions from his own colleagues, and the desperate cries of help from Floyd himself. He failed to show basic regard for George Floyd’s life. This is why he was prosecuted for murder.

Eggshell theory

Next, let’s look more closely at the claim that Floyd’s drug habit and heart condition were his real cause of death.

Here’s Hughes:

The autopsyʼs toxicology report also stated that Floyd had a potentially lethal dose of fentanyl in his blood (11 ng/mL), along with small amounts of methamphetamine and morphine. And finally, the autopsy report concluded that Floyd had serious preexisting conditions, including “arteriosclerotic heart disease” described as “multifocal” and “severe,” “hypertensive heart disease,” and “cardiomegaly” (an enlarged heart).

The point about the fentanyl in Floyd’s blood is probably the one we see most frequently from Chauvin’s defenders. It’s often accompanied by disparaging language about how Floyd was a “lifelong drug addict.”

The irony is that the latter explains the former. Longtime opioid users typically build up tolerance. They can function relatively normally with opioid concentrations in their blood that would kill a first-time or occasional user. So there is no set “fatal concentration” of opioids in the blood. What is fatal can vary wildly from person to person.

Specialists like Bill Smock (a doctor who works for the Louisville Police Department for the specific purpose of minimizing in-custody deaths), forensic pathologist Lindsey Thomas, and Northwestern University cardiologist Jonathan Rich all told the jury at Chauvin’s trial that in the body cam, cell phone, and surveillance footage, Floyd showed no signs of someone in the midst of an overdose. An opioid overdose makes you lethargic and sluggish. Floyd was erratic and energetic. He was standing, walking, and talking.

This is also a point that other toxicologists, addiction experts, and EMTs trained to treat overdoses have consistently made over and over again.

It’s far from clear that the fentanyl levels in Floyd’s system were as toxic as Chauvin’s defenders claim. Toxicologist Daniel Isenschmid testified that Floyd’s fentanyl levels were lower than the average levels of people charged with driving while high on the drugs — none of whom died of an overdose. He also said that Floyd’s opioid levels were about 50 percent lower than the average found in people who did die from an overdose. Moreover, much of the fentanyl found in Floyd’s blood was norfentanyl, a byproduct the body creates after metabolizing the drug. Overdoses generally occur shortly after ingestion, well before metabolization.

You can hear Isenschmid’s testimony for yourself here. But here’s a screenshot of the a chart he showed the jury to contextualize Floyd’s norfentanyl ratio:

Here’s Hughes again:

So while it is not unreasonable to think that Chauvinʼs knee was the cause of Floydʼs labored breathing, itʼs also not unreasonable to think that his labored breathing was caused by other factors—for instance, the stress of the arrest in general, the fentanyl in his system, his preexisting health conditions, or some combination of the three.

In addition to everything we’ve already covered, this is also a misunderstanding of the law. There’s a legal concept sometimes called “eggshell theory,” which states that perpetrators take their victims as they find them. It’s commonly used in tort law, but it applies to criminal law as well. If I sucker punch a guy with severe heart disease, and he then dies of a heart attack, I am criminally liable for his death. If I punch someone who falls, hits his head, and dies, I’m also liable. It doesn’t matter if I wasn’t aware of the heart condition, or had no intent to kill. (Indeed, last year a Minnesota man was convicted on the same charge as Chauvin under just such a scenario.)

Under Minnesota law, the state only needed to show that if not for Chauvin’s actions, George Floyd would not have died that day. It doesn’t matter if Floyd was more fragile or susceptible to a heart failure than most men his age. If the prosecution can demonstrate that Chauvin’s use of force against Floyd was illegal, Chauvin’s only real defense would have been to argue that Floyd coincidentally died of natural causes at the precise time he was under Chauvin’s knee — and that Chauvin’s knee had nothing to do with it.

He clearly failed to persuade the jury of this.

As further evidence that Floyd was already in the throes of a medical crisis by the time Chauvin encountered him, Hughes makes a big deal about a video clip in which Floyd clearly says he can’t breathe as the police try to put him in a squad car — well before he was lying prone on the sidewalk.

As Hughes writes . . .

. . . most importantly, Floyd was saying that he couldnʼt breathe before he was placed on the ground.

This video clip has become ubiquitous on social media. This is probably why Hughes calls this his most important argument.

But there’s a pretty simple explanation for it. As Hughes himself points out elsewhere in his column, at about the same time Floyd makes this first complaint to officers that he can’t breathe, he also told them he was claustrophobic.

As anyone who gets claustrophobic will tell you, when it hits, you do often feel as if you can’t breathe. You can breathe, of course. It just feels like you can’t. It seems pretty clear from the clip that Floyd was saying he couldn’t breathe because he was feeling claustrophobic and panicky, and didn’t want to be confined to the back of a squad car.

Chauvin’s defenders have used this clip in two contradictory ways. On one hand, they argue that Floyd’s first claim that he couldn’t breathe was clearly a lie, and that therefore Chauvin and the other officers had every reason to doubt Floyd the other 26 times he told them he couldn’t breathe.

This is a specious argument. The easiest way to assess someone’s claim that they can’t breathe is to look at the circumstances under which they’re making it. The first time Floyd said he couldn’t breathe, he was standing, talking, and moving around, and had just told the officers he was claustrophobic. The next 20-plus times he told them he couldn’t breathe he was handcuffed, on his stomach, had various knees pushing into his body, and was becoming increasingly weak and unresponsive.

The other way Chauvin’s defenders deploy this clip is to argue that Floyd really couldn’t breathe at the time — that this was the first sign of an overdose or heart failure, and that this is the real reason he died.

This of course is directly contradictory to the first claim. And there isn’t much evidence for it, either. But let’s assume Chauvin’s defenders are correct. It would mean that Chauvin and the other officers responded to a man in the midst of a medical crisis by putting him on the ground — prone and handcuffed — and then kneeling on his back, neck, and legs. They then ignored clear signs that Floyd was deteriorating, ignored repeated pleas from Floyd and bystanders, and disregarded Floyd’s lack of a pulse. Chauvin then continued to pin Floyd to the ground for three minutes after Floyd lost consciousness.

Chauvin’s defenders want it both ways, here. They want him to benefit from an interpretation of Floyd’s initial complaint that assumes it was the sign of a dangerous health crisis, but then exempt him from culpability for not treating it like one.

Andrew Baker’s meeting with prosecutors

The most persuasive criticisms from Chauvin’s defenders concern the comments that medical examiner Andrew Baker made to prosecutors shortly after Floyd’s death. So let’s look at those.

Here’s Hughes:

Dr. Baker, who conducted the official autopsy, said that he received hundreds of phone calls—“some harassing and threatening”—as he was working on his final autopsy report. A deposition transcript from an unrelated lawsuit filed by Hennepin County Principal Attorney Amy Sweasy Tamburino against her boss, Mike Freeman, revealed that Dr. Baker, just hours after performing the autopsy on Floyd, asked her: “Amy, what happens when the actual evidence doesnʼt match up with the public narrative that everyoneʼs already decided on?” He goes on: “This is the kind of case that ends careers.” Nevertheless, Dr. Baker released his autopsy report soon after and has said that the pressure did not influence his findings in any way.

It’s perfectly understandable why Baker would have been on edge at that time. As one medical examiner told me, “There were bomb threats against his office. He couldn’t see his family or kids, because he didn’t want to put them at risk.”

Baker spoke with Sweasy, other prosecutors, and local and federal law enforcement at least twice in the days after he completed Floyd’s autopsy. And, in fact, Hughes doesn’t even include all of Baker’s alleged and controversial comments, some of which, at first blush, seem to be even more exculpatory for Chauvin.

In her memo, for example, Sweasy also writes that Baker told her, “The autopsy revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation,” and 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.”

These comments appear to directly contradict Baker’s testimony at trial. So what’s going on?

When we first learned about these comments, I was confused by them too. So I started asking medical examiners what they made of them. It turns out that it’s complicated. And to fully understand what may have been going on, we need some background.

The U.S. is the only country in the developed world in which medical examiners are asked to determine manner of death. A manner of death determination can be profoundly consequential. A medical examiner’s ruling that a death in police custody was from natural causes or even “undetermined” will almost always head off any further investigation. If a medical examiner isn’t willing to tell a jury that an in-custody death was a homicide, prosecutors are understandably reluctant to bring charges.

Because of the gravity of these decisions, it’s crucial that medical examiners remain as objective as possible. They need to be shielded from factors that could unduly influence their conclusions.

Screen grab of Andrew Baker testifying at Derek Chauvin’s trial

Unfortunately, our system almost seems designed to instill them with bias. Forensic pathologists are often seen as part of the law enforcement “team.” In some jurisdictions (though not in Minneapolis) they actually report to a police agency, sheriff’s office, or DA’s office.

This is where cognitive bias can alter their judgment. Sometimes the bias can be explicit, but typically it’s more subtle, as the cognitive scientist Itiel Dror explained to me last year.

“If you bring in a homeless person who was beaten to death by a street gang and covered in bruises, most medical examiners will quickly rule that a homicide. But if the same homeless person was beaten by police, they’ll run the gamut of tests. If you look hard enough, you can always find some other condition that might have contributed to death,” Dror says. In some jurisdictions, Dror says, in-custody deaths are required to undergo more tests as a matter of policy.

At about the same time as Chauvin’s trial, Dror and a team of researchers published the first in a series of studies showing that medical examiners’ manner of death determinations can be affected by information that ought to be irrelevant, such as the race of a deceased infant, or the relationship of a caregiver who found the infant unresponsive before the infant died.

These were groundbreaking studies, but they were met with anger and resentment from the old guard in the medical examiner community. Two of the loudest critics — both of whom have since faced questions about their own conclusions after in-custody deaths — ended up consulting for Chauvin’s defense.

But there was also one other prominent critic of the studies who participated in Derek Chauvin’s trial: Andrew Baker. And the fact that Baker was so dismissive of the possibility that medical examiners could be affected by cognitive bias gives us some insight into those initial comments he made to prosecutors.

The first question we might ask is why Baker was talking to police and prosecutors so early in the investigation in the first place. There’s disagreement among forensic pathologists about how much they should consult with law enforcement. Three medical examiners I spoke to said they would never have had the sort of exchange Baker had with prosecutors so early in the case.

But Baker’s early consultation also isn’t uncommon. In fact, it isn’t uncommon for police or prosecutors to be in the room when an autopsy takes place — a level of access rarely afforded to defense attorneys. These interactions can expose pathologists to information that, as the Dror studies demonstrated, can bias their conclusions.

Judge Peter Cahill, who presided over Chauvin’s trial — and whom Hughes and others accuse of bias against Chauvin — actually chastised the prosecution for consulting with Baker without including Chauvin’s defense attorneys. He called the meetings “sloppy” and disqualified four prosecutors from the case because of them, including Sweasy (though she and two others had already removed themselves from the case by then).

Because Sweasy would later reveal Baker’s controversial comments, some Chauvin defenders have characterized her removal from the case as retaliation — and therefore evidence of Judge Cahill’s anti-Chauvin bias. But it was Chauvin’s own attorneys who asked that Sweasy and the other prosecutors be removed. Cahill agreed with them, even though the alleged infraction was something prosecutors do all the time. (It’s also worth noting that Sweasy herself believed Chauvin should be criminally charged. She just thought the charge should have been third-degree murder instead of second.)

Every medical examiner I consulted said they had problems with the comments Baker made to prosecutors. They were particularly critical of the comments that appeared to prematurely exculpate Chauvin and the officers for Floyd’s death — such as, “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.”

They also said that given how the comments have been interpreted, and given the significance of the case, Baker ought to publicly explain or clarify them. He has yet to do so.

But there were differing opinions on why Baker said some of these things, as well as what we ought to make of them. The narrative from Chauvin defenders is that Baker’s initial comments to prosecutors represent his real opinion, and that he changed his manner of death finding, altered his autopsy, and falsely testified at Chauvin’s trial because he was worried about threats, rioting, or pressure from state officials.

But there are other, more plausible explanations for what Baker said.

The most charitable explanation is that Baker knew the case was already getting national attention, so he went out of his way to be forthcoming at every step of his investigation. That meant telling prosecutors about hunches he had after the physical autopsy, despite later finding evidence that dispelled those hunches.

“Given how high-profile this case was from the start, I think he was trying to be meticulously transparent,” one medical examiner told me. “It’s unfortunate, because that then opened him to allegations that he was pressured to change his conclusions.”

There’s additional evidence supporting this explanation that, again, Hughes and the documentary don’t mention. Chauvin’s defenders have frequently cited handwritten notes one prosecutor jotted down after meeting with Baker. These notes rehash the comments Baker made that we’ve already covered, including his findings about fentanyl and Floyd’s cardiovascular disease.

But the handwritten notes also include an additional sentence that seems significant. It, too, appears only briefly in the documentary, and only inadvertently, as the filmmakers try to focus your attention elsewhere. But I took a screenshot:

It’s right there toward the bottom of the frame. Just after noting Baker’s comments about fentanyl and heart disease, the author writes: “Baker: I am not saying this killed him.”

You can read this document in its entirety here.

Surprisingly, one person who offered a defense of Baker was Dror, the lead author of the cognitive bias study that Baker has criticized. One of Dror’s proposed reforms to minimize cognitive bias is for medical examiners to conduct the physical autopsy before exposing themselves to any outside information — so no consultations with law enforcement, no police reports, and no body camera or surveillance footage. Only after completing a thorough autopsy and determining cause of death, Dror says, should medical examiners then carefully consider additional information to determine the manner of death. Dror calls this process “linear sequential unmasking.”

Baker didn’t meet with police and prosecutors until after he had completed the physical autopsy on Floyd and determined a cause of death. Recall that even in that meeting he told them he hadn’t yet watched the videos, and we now know he also apparently said, referring to Floyd’s fentanyl levels and heart condition, “I’m not saying this is what killed him.”

Under this charitable interpretation of Baker’s actions, after the physical autopsy, Baker suspected Floyd’s drug use and ill health caused his death. He worried that this would generate a firestorm of controversy, so he gave prosecutors a heads up. But he also deliberately refrained from drawing any conclusion about manner of death until he could obtain more information. It was only after watching footage of Chauvin keeping his knee on Floyd’s back well after Floyd went limp and lost consciousness that Baker determined Floyd’s death was a homicide.

As Dror told me last year, “The most charitable interpretation of his actions in the Floyd case is that he did exactly what I recommend.”

Another medical examiner agreed, and told me that it also seemed like Baker was simply venting to Sweasy. “I’ve been on both sides of this,” they told me. “I know what it’s like to have police pressuring you to clear officers who killed someone, and what it’s like when you discover evidence that exonerates the officer while protests are raging. I wouldn’t want any comments I made in those moments to appear out of context in some court document.”

As for Baker’s comment 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,” this medical examiner told me, “that sounds bad if you take it out of context, but it really isn’t that controversial. If you have no other evidence of how someone may have died, then yes, an overdose would be the most likely explanation. But there were other contributing factors, and there was other evidence. The video showed that Floyd wasn’t showing signs of an overdose. It showed that he was exhibiting signs of asphyxiation. You go where the evidence takes you.”

Not everyone I spoke to was so charitable toward Baker. Joye Carter, the former D.C. chief medical examiner, offered a more skeptical view. She thinks that in the first days after Floyd’s death Baker appeared to be doing what medical examiners often do — operating as a cog in a system that goes out of its way to exonerate police for in-custody deaths.

She points out that toward the end of Floyd’s autopsy, Baker included language about Floyd’s “sickle cell trait.” There’s a dubious theory that black people who carry one of the two genes for sickle cell anemia are especially prone to die when exposed to the sorts of stresses that accompany a struggle with police.

“It’s a pattern with in-custody deaths,” Carter told me. “There’s a knee-jerk desire to quickly clear these police officers. Some medical examiners bend over backwards to blame these deaths on race-based conditions like ‘sickle-cell trait’ or excited delirium.”

If Baker was indeed merely venting when he made those early comments to Sweasy and other law enforcement officials, it still would mean that he felt comfortable enough with them to vent in that way. It suggests the sort of cozy relationship that critics like Dror say undermines objectivity.

Screenshot of former Maryland state medical examiner Joseph Fowler testifying at Derek Chauvin’s trial

Under this less charitable theory, Baker course-corrected after he saw that he was going to be scrutinized by other medical examiners and specialists — that the public attention the case received made him double-check his work.

The final theory for Baker’s evolving commentary about Floyd’s death — and the one least charitable to Baker — is the one advanced by Chauvin defenders like TFOM and Tucker Carlson. This is the theory that Baker deliberately gave false testimony that implicated Chauvin because he was afraid of criticism from “woke” state officials or the threat of violence from the protests.

But this is also the least plausible explanation. For one, it’s at least worth pointing out that Baker testified under oath that his manner of death determination wasn’t influenced by any of those things. That probably won’t convince Chauvin’s defenders, but their theory would require Baker to have perjured himself.

Second, once he did determine a cause of death, Baker stuck to his findings. While he did testify that Floyd’s death was a homicide, he didn’t waiver from his belief that Floyd’s drug use and heart condition also contributed to his death, even as other prosecution expert witnesses testified otherwise.

Finally, the main problem with this last theory is that it rests on the premise that Floyd really did die of natural causes — that he would have died that day even if he’d never encountered Chauvin. The overwhelming majority of medical experts who have reviewed the evidence disagree with this. Whatever route he took to get there, Baker’s ultimate determination of homicide falls squarely within that consensus.

The near-unanimity of the medical community

When there’s controversy over whether a suspicious death was a chargeable homicide, we’ll often see reputable experts line up on either side of the question. Floyd’s death is not one of these cases. This is not a “battle of experts.” It’s a battle pitting the overwhelming consensus in the medical community against a few fringe voices who have been amplified by the right. By my count, the state put on 11 medical or forensic expert witnesses who said Chauvin is responsible for Floyd’s death. The defense put on a single expert to counter them.

That witness was retired Maryland state medical examiner Joseph Fowler. Even before the trial, Fowler had already been named in a lawsuit by the family of a black man named Anton Black who died under circumstances remarkably similar to Floyd. As he lay prone and handcuffed and police officers put their weight on his back, Black pleaded that he couldn’t breathe. He eventually fell unconscious, went into cardiac arrest, and died. Fowler classified Black’s death as an “accident.”

According to the ACLU, Fowler had also given an “undetermined” manner of death in dozens of other cases where someone died while under police restraint. In some of those cases, “the decedent had been Tased, pepper sprayed, subject to police baton strikes, prone restraint, or other uses of force.”

Fowler’s testimony at Floyd’s trial was so dubious that Maryland’s attorney general ordered an audit of the autopsies Fowler had done on people who died in police custody. That audit is ongoing.

The TFOM documentary managed to find two other medical professionals willing to defend Chauvin on camera. The first was Paul Thomas Haney, the Indiana surgeon we’ve already discussed — the guy who thinks the FBI framed Chauvin to advance some “woke” theory about racist cops.

The second is a nurse anesthetist named Debra Nelson, who offers some odd conjectures that are difficult to comprehend. Nelson first talks about a previous arrest in which Floyd swallowed some pills before interacting with police. This is meant to convince viewers that he must have done the same thing in May 2020, and thus died of an overdose. This speculation add nothing to the debate, because Floyd’s toxicology reports have already been widely reported.

Nelson then points out some coiled tubing visible in body camera footage as Floyd was put into the ambulance. She says this tubing should have been connected to a source of oxygen for Floyd. There’s a lot of innuendo here, but from what I can gather, this is supposed to suggest that the EMTs who testified at Chauvin’s trial that Floyd was dead when they arrived were just covering their own mistakes.

I asked Anthony Bennett, an EMT and author of the “Medicine & Justice Project” newsletter about Nelson’s claims. Bennett agrees that the tubing should have been connected to an oxygen source. “But it didn’t kill George Floyd.” Because Floyd had already “flatlined” by the time paramedics arrived, he says, their top priority would have been to restart his heart. As for Nelson, Bennett says, “It’s incredibly weird for a CRNA to be commenting on street medicine. Her ‘expertise’ in the area is that she, according to her LinkedIn, ‘reviews medical charts’ for attorneys and testifies. My guess is that they found somebody they could technically call ‘doctor’ who would say what they wanted.”

The final medical authority cited by the documentary is a bizarre article by Avak Howsepian, a professor of clinical psychiatry at the University of California, San Francisco-Fresno. As the camera zooms in on the article’s title, narrator Liz Collin says it was published in a “peer-reviewed journal,” and that it identifies “17 errors” in Baker’s autopsy report.

The name of the publication here is the Journal of Clinical Medicine and Case Reports. It isn’t listed in the National Library of Medicine’s index of journals, and neither the article nor the publication is listed in the Director of Open Access Journals. If you do a Google search on the journal’s name, you get just seven results, and two of them are Howsepian’s staff pages at UCSF. In other words, this doesn’t appear to be a well-known journal. None of the specialists I consulted had heard of it.

Moreover, the article itself isn’t really about the alleged errors in the autopsy. Instead, Howsepian argues that Floyd suffered from a rare condition called acromegaly, in which a tumor on the pituitary gland causes overproduction of human growth hormone. This can result in an enlarged heart, and those with the disease often die from heart ailments. It’s in the course of making this argument that Howsepian lists what he calls 17 “deficiencies” in Baker’s autopsy. But these aren’t “errors.” They’re the procedures and tests Howsepian thinks Baker should have performed to determine if Floyd had acromegaly.

I’m not qualified to evaluate the merit of Howsepian’s theory, but two medical examiners told me that whether or not Floyd had acromegaly is irrelevant to whether his death was a homicide. Both cited some version of eggshell theory — one wrote, “you take your victim as you find him/her,” and the other, “you can have one foot in the grave and one foot on a banana peel, but the person who pushes you over is still responsible for what happens.”

As for Howsepian himself, he’s a psychiatrist, not a forensic pathologist. And his areas of psychiatric research are . . . interesting. He has published quite a bit on LGTBQ+ issues from a Christian point of view, including a paper linking trans acceptance to pedophilia. Howsepian has also devoted quite a bit of time to defending conversion therapy — the idea that gay people can be “cured” of their sexuality — and is affiliated with groups and publications that promote it.*

Chauvin’s defenders are correct on a couple points. First, the forensic investigation into George Floyd’s death was treated differently than most in-custody investigations. And second, the protests and furious public reaction are almost certainly why this case was treated differently.

But Floyd was treated differently in the sense that his death received the sort of thorough investigation every in-custody death ought to get, but doesn’t.

In the vast majority of suspicious deaths, medical examiners and police investigators don’t consult with pulmonologists, police surgeons, or cardiologists, much less all three. For most of these deaths, multiple medical examiners don’t review and scrutinize the original autopsy report. Indeed, as Dror told me, for most in-custody death investigations, it cuts the other way — medical examiners go out of their way to find an explanation that doesn’t implicate the police.

Yet we still rely on their conclusions to make profound, life-and-death decisions about criminal charges. This was especially true prior to George Floyd.

The protests, public anger, and intense media scrutiny didn’t push state officials to unjustly charge a cop with murder. They spurred public officials — at least this one time, at least in this one case — to slow down, to consult with specialists, and to take precautions to guard against cognitive bias. It prompted them to make sure they got it right.

I’ve been covering police violence and the problem of bias in forensics for my entire career. The George Floyd protests were the first in my lifetime that not only moved public opinion on these issues, but inspired real substantive change, particularly at the state and local level. What we’re now seeing is an insidious, deceitful campaign to roll back these hard-won reforms by sowing doubt about the incident that inspired them.

It seems clear that the producers of The Fall of Minneapolis are doing all of this willfully — they’re knowingly spreading false information. It’s less clear if pundits like Hughes and outlets like the Free Press are knowingly perpetuating these lies or have fallen victim to them. But as self-described skeptics — as the self-appointed debunkers of forced narratives — they’re doing exactly what they accuse the legacy media of doing: They’re reverently, unskeptically amplifying dubious claims because those claims happen to coincide with their own prejudices.

They ought to know better.

(*Addendum: Hughes and Howsepian have responded to this series. You can read my response to them here. I’ve also updated this post to reflect that Howeppian only argued that Floyd might have had acromegaly.)

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