Wednesday, February 21, 2024

Radley Balko: (Part 2): From 'The Watch.' …Police killings...'The retconning of George Floyd'…Second part of a three-part series on the effort to retroactively justify Derek Chauvin's murder of George Floyd, by this masterful analyst of America's criminal justice system: It's sub-titled: 'Breaking down the lies, deception, and misdirection Derek Chauvin's defenders use to claim that the forensic evidence vindicates him."…"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. 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."

gerund or present participleretconning
  1. revise (an aspect of a fictional work) retrospectively, typically by introducing a piece of new information that imposes a different interpretation on previously described events.
    "I think fans get more upset when characters act blatantly out of established type, or when things get retconned"…(Oxford Languages); 


COMMENTARY: 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. By Radley Balko. Published on 'The Watch' on February 13, 2024. (Investigative journalist. Proprietor of The Watch newsletter. Ex-Washington Post. Author of Rise of the Warrior Cop, co-author of The Cadaver King and the Country Dentist-;


FEB 13, 2024

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

GIST: (As this is a very lengthy analysis, here is a taste of this important substack. (It can be read in its entirety at the link below. HL): 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.


Some new developments, a correction, and a response to Coleman Hughes:


FEB 16, 2024

"I’m currently working on the third post in my series about the effort to retroactively exonerate Derek Chauvin for killing George Floyd. You can check out the first and second parts here and here.

But in the meantime, I want to address a few issues that have come up over the last several days that won’t be part of that post.

So let’s get to it.

First, I want to acknowledge this update from Glenn Loury and John McWhorter, both of whom I mention in my posts.

Both say my series changed their minds about the case, and Loury in particular engages in some admirable self-reflection about how he allowed himself to be duped by the documentary. 

This is genuine and commendable. It’s all too easy to bite on enticing narratives that confirm our own worldview. I’ve certainly been guilty of it, and I hope that if I fall victim to it in the future, I have the self-awareness to handle it with this sort of grace and humility.

Loury does also chide me for my tone toward Coleman Hughes, as have a few other people who otherwise found the posts persuasive, like Michael Schermer. I get it. Some people find snark off-putting.

Which isn’t to say I regret it. For one, Hughes’s own column is fairly sneering. Two, we’re living in the age of Brandolini’s Law. This reality — that it often takes hours and hours of research, writing, and editing to debunk misinformation — is all the more frustrating because the payoff is often lopsided. People are far less likely to read the long, meticulously researched stuff than they are short and authoritative-sounding but ultimately badly misinformed columns like Hughes’s. (As evidenced by Hughes’s army of Twitter followers, who keep making demands that I address arguments that are clearly addressed in the first two posts.) 

It’s even more frustrating when the author of the piece you’re debunking assures his readers that they can trust him because he himself is engaging in precisely this sort of meticulous research to debunk an existing narrative, when he clearly isn’t.

Finally, we’re talking about life and death stuff here. I’ll get into this more in the third installment, but Floyd’s death spurred reforms and procedural changes that will save lives, including on issues like death investigations and problems like positional asphyxia. One aim of The Fall of Minneapolis and the police groups pushing it is to roll back those reforms, or to snuff them out before they can happen. That means more people will die. We should be angry about that. And frankly, it sometimes takes a little ridicule to shame people into seeing that they’re being used.

Hughes himself also finally responded to my criticisms. In doing so, he also demanded three “corrections.” The first is that I wrote that he’s 28 when he is 27. This was a typo. I should have caught it when reviewing the post. I’ve made this change. 

Of the other two other requests, one has merit and one does not. But both are worth some discussion.

Hughes first sent me what seemed like an earnest and cordial email. He included some flattering language saying that people he knows speak highly of my work, that he “genuinely welcome[s] good faith criticism in pursuit of truth and understanding,” and conceded that he didn’t consult with any forensic pathologists before writing his column. 

He also wrote that the reason he didn’t provide his readers with a link to the MPD policy manual I discuss at length in part one — which I believe he misrepresented — is that he only had a PDF of the manual, and quote, “I didn't know you could quickly generate a Drive link without exposing the underlying email address. Now I know you can.” 

I would think someone at the Free Press could have helped him out. Or he could have just Googled an appropriate version of the manual and linked to it. It isn’t hard to find. But okay.

More importantly, in his column, Hughes summarized the manual in a way that left out critical context while not giving readers access to the document itself, even though he had it. And if he had given them access, it would have revealed the context he left out. Was I ungenerous to suggest this was deliberate? Perhaps. But at the very least it seems to be a pretty convenient oversight.

The Watch is a reader-supported publication. If you find this work important, please consider becoming a paid subscriber.

A couple hours later, Hughes emailed again, this time to demand his first substantive correction. I wrote in several places that in his column, Hughes argued either that Floyd died of a drug overdose or that an overdose was a partial cause of his death. Hughes disputes this, insisting that he never wrote that Floyd died of an overdose. 

Before I had a chance to respond, Hughes took to Twitter to publicly announce my alleged error and demand a correction. This resulted in a flood of abuse from his followers. Which is fine. It comes with the territory. I only mention it because it’s interesting how many of these people insisted to me that Floyd did, in fact, die of a drug overdose. 

I sent a reply to Hughes, and then went to dinner with my wife. It all spiraled from there. Hughes quickly emailed back to reiterate his demand for a correction on the word “overdose.” He then emailed again to demand a correction on another matter, which he also posted to Twitter. Hughes then emailed me again. And again. Then he tweeted about it all again. When I woke up yesterday morning, he had DMed me at 4:14 am. And then emailed me again four minutes later.

Making public demands for corrections over semantic issues is a pretty common defense tactic among people called out for major errors or omissions. It’s a way of discrediting the critic without actually addressing the criticisms. Instead of addressing how he badly misstated the law, the mechanics of asphyxiation, the role of medical examiner Andrew Baker, or the numerous other problems with his column, Hughes decided to very publicly fixate on word choices that have nothing to do with the flaws and omissions in his column.

As I wrote above, I think one of Hughes’s complaints about word choice has some merit, though it has no bearing on my criticisms of his column. 

In a couple of places where I paraphrased Hughes’s argument, I wrote that instead of homicide, Hughes claimed the evidence suggests Floyd died of “a drug overdose or a heart attack.” Hughes objects to the term “heart attack.” He argues that he never used that term. 

In his 4:18am email to me, which included a diagram and a link to several medical publications, Hughes wrote:

“[I] spent a considerable amount of time trying to understand the difference between heart attacks, cardiac arrests, and cardiopulmonary arrests prior to writing the piece––precisely so that I would not make a sloppy error like this. To be told now that it doesn’t matter and that it’s just semantics is absurd. Please correct it.”

Here he’s correct. A heart attack is quite a bit different than “cardiopulmonary arrest,” which is what medical examiner Andrew Baker wrote in Floyd’s autopsy report. I inaccurately summarized his argument. So in these instances, I have changed “heart attack” to “heart failure.” 

Just to be clear, I wasn’t trying to straw-man or misrepresent Hughes. I both linked to his column and blockquoted the portions I later paraphrased. Readers had direct access to his actual words, and didn’t need to rely on my paraphrasing. 

The purpose of this series is to address Hughes’ arguments, the arguments made in the documentary, and the arguments Chauvin’s other defenders have made. In doing so, I inadvertently attributed language commonly used by Chauvin’s other defenders to Hughes. That’s my mistake. 

Hughes is the only person who has made me aware of this error. So if he’s truly worried about people thinking he was “sloppy,” at least on this particular matter, I’d say he’s in the clear. 

But let’s also not lose sight of something here: The entire point of Hughes’s column is to cast doubt on the idea that Floyd died of a homicide — to question Chauvin’s guilt. The headline reads: “What Really Happened to George Floyd? Coleman Hughes on some inconvenient reporting that suggests Derek Chauvin is not a murderer, but a scapegoat.”

Hughes wants his readers to think Floyd died not from Chauvin’s actions, but from natural causes. And the main natural causes Hughes lists are Floyd’s health issues — Floyd’s heart problems, and the fentanyl that he had ingested. 

Which brings me to Hughes’s other requested correction: He says he never claimed Floyd died of a drug overdose. 

The word “fentanyl” appears four times in Hughes’s column. He twice refers to Floyd’s fentanyl levels as “potentially lethal.” A caption to a photo that accompanies his column refers to Floyd’s fentanyl levels as “potentially fatal.” Hughes also argues that Floyd’s heart and cardiovascular issues, along with the “fentanyl in his system,” were just as likely to be a factor in his death as Chauvin’s knee.

Hughes is deploying a “just asking questions” line of argumentation here. He clearly wants to strongly suggest that Floyd died of an overdose, but without accepting responsibility for actually saying so. So no, I don’t think it was wrong for me to paraphrase his argument the way I did here. 

Still, while I won’t be correcting this, in my email to Hughes, I did offer to include his criticism verbatim in a post like this one, so readers can make up their own minds. And again, in the first two installments I both quote him directly and link to his column.

Lastly, a reader did some terrific research to explain a niggling matter regarding the MPD policy manual.

Just to quickly recap, Chauvin’s defenders have claimed that at the time of Floyd’s death, MPD taught a tactic called the “Maximum Restraint Technique” (MRT), which they (and Hughes) argue isn’t materially different than what Chauvin did to Floyd.

The two are not at all similar, for the reasons I lay out at length in the first post. But most importantly, the MRT was taught as a technique for the purpose of administering a restraint device called a hobble, and MPD officials testified at Chauvin’s trial that it was only trained for the purpose of administering such a device, and because the tactic can restrict breathing, it should only be used for a short time, after which police are told to roll suspects over to their side, or to place them upright. 

This is also clear from the MPD policy manual used at the time, which clearly stated, “The Maximal Restraint Technique shall only be used in situations where handcuffed subjects are combative and still pose a threat to themselves, officers or others, or could cause significant damage to property if not properly restrained. Using the hobble restraint device, the MRT is accomplished in the following manner . . .”

Furthermore, the policy is also made clear in a training slide for the MRT that Chauvin’s defenders often cite. That slide shows an officer kneeling on a suspect in a way that superficially resembles the way Chauvin knelt on Floyd (again, there are major differences between the two, but that isn’t important here). However, the text on the slide clearly instructs police to be aware of “sudden cardiac arrest,” and “positional asphyxia,” and that police should roll suspects over on their side to facilitate breathing as soon as possible.

Finally, it’s also clear from similar policies at police departments around the country, most of which explicitly warn that putting handcuffed suspects in a prone position can restrict their ability to breathe, and many of which explicitly caution against putting weight on the backs of anyone handcuffed and on their stomach.

And yet Chauvin’s defenders still claim that Chauvin did not violate the MPD policy in place at the time of Floyd’s death. In their interview with Loury and McWhorter, producers Liz Collin and J.C. Chaix say that the manual only instructs officers to roll suspects over if they use a hobble. Since Chauvin didn’t use a hobble, they argue, he wasn’t bound by the policy that instructs cops not to let people die.

It’s a self-evidently absurd argument. But their evidence for this comes from an admittedly weird bit of wording/formatting in the policy manual that, if you ignore all the context above, does leave just a smidge of ambiguity. 

It comes in section “B” of the manual’s guide to MRT, which lays out safety procedures.

B. Maximal Restraint Technique – Safety (06/13/14)

1. As soon as reasonably possible, any person restrained using the MRT who is in the prone position shall be placed in the following positions based on the type of restraint used:

a. If the hobble restraint device is used, the person shall be placed in the side recovery position.

The problem is that there’s a subsection (a) here, but no subsection (b). Chauvin’s defenders have interpreted this to mean that if the first clause in subsection (a) doesn’t apply — the use of a hobble — you can ignore the requirement to put your suspect in the recovery position.

Again, when you consider this slight ambiguity in light of other MPD training materials, similar policies at other departments around the country, and the testimony of MPD officials, it seems clear that this was some sort of glitch or oversight. It is not license for MPD officers to ignore the safety and well being of people in their custody.

My own hunch has been that language here was boilerplate taken from a model policy written by a police group or consultant company — which is typically where police agencies get their policies. It probably included additional subsections pertaining to other restraint devices or methods, such as wrap or hog-tying. Because the tactic is dangerous and potentially fatal, those would also have included instructions to roll prone suspects on their side to allow them to breathe, but some might also have included additional language specific to that particular device. 

Because MPD only authorized the use of the hobble, they put subsection (a) in the manual and disregarded the others.

But this was just a hunch, so I wasn’t comfortable including it in my first post.

Over on the BlueSky social media platform, reader Matt Weiner found pretty good evidence that this is exactly what happened. He found an MPD document on the Minneapolis city website which references and quotes from a prior MPD policy manual’s instructions on MRT.

Here’s what it says:

B. Maximal Restraint Technique –Safety 

1. As soon as reasonably possible, any person restrained using the MRT who is in the prone position shall be placed in the following positions based on the type of restraint used: 

a. If the hobble restraint device is used, the person shall be placed in the side recovery position. 

b. If the Wrap restraint is used, the person shall be placed in the side recovery or upright seated position.

Italics are mine.

A number of police departments have stopped using the Wrap restraint due to concerns about its safety. MPD appears to have been one of them. 

So they took out subsection (b), and left subsection (a). But as you can see, even with the Wrap, officers were still required to either turn suspects over or place them upright. Either option would have been included to the minimize the possibility of positional asphyxiation. 

I think this pretty definitively puts the argument from Chauvin’s defenders to bed.

I should have the final installment of my series ready next week."



PUBLISHER'S NOTE:  I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: Please send any comments or information on other cases and issues of interest to the readers of this blog to:  Harold Levy: Publisher: The Charles Smith Blog;


FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;


FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project;



David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.