David Fowler, Maryland’s former longtime chief medical examiner, drew national attention recently when he testified in the trial of former Minneapolis police officer Derek Chauvin, who was convicted on murder and manslaughter charges for killing George Floyd by kneeling on his neck for more than 9 minutes last May. It was Dr. Fowler’s opinion that the victim died not of a lack of oxygen, as Minnesota medical experts had explained, but by a suddenly erratic heartbeat brought on, in part, by breathing in carbon monoxide fumes from a nearby vehicle exhaust. Given the overwhelming nature of the prosecutorial evidence, including a video of Mr. Floyd repeatedly pleading that he could not breathe, this struck even the most casual observer as somewhat suspect. But, some fear, it may have been much worse than that.
Last week, a letter protesting Dr. Fowler’s conclusions was sent to U.S. Attorney General Merrick Garland, Maryland Attorney General Brian E. Frosh and others. It was signed by 431 doctors from across the country. In it, they refer to the pathologist’s testimony as “baseless,” as having revealed “obvious bias” and as raising “malpractice concerns.”
Further, they called on authorities to investigate similar cases handled by the medical examiner’s office covering the years Dr. Fowler was in charge from 2003 until his retirement in 2019. Mr. Frosh and Gov. Larry Hogan agreed to conduct such a review, which is expected to call on outside experts and attorneys to pore over cases – perhaps 15 or more per year – involving deaths taking place in the custody of police.
Take, for example, the case of Anton Black, the 19-year-old who died in police custody in the Eastern Shore town of Greensboro in 2018 under circumstances strikingly similar to the Floyd case. In that incident, the unarmed Black teen was pinned for more than six minutes by officers, including one who has since been decertified because of a history of using excessive force against suspects. Dr. Fowler ultimately ruled in that case that Anton Black suffered from a sudden cardiac event. With help from the ACLU of Maryland, the victim’s family is now suing the state in federal court, an action that Maryland’s attorney general is constitutionally required to defend – while simultaneously reviewing Dr. Fowler’s work.
Mr. Frosh’s spokesperson said attorneys looking into Dr. Fowler’s past cases will steer clear of those assigned to defend him in the Anton Black lawsuit, and that’s appropriate. But we would also expect the attorney general to recognize that if this review (officials insist that it not be termed an “investigation”) finds the former medical examiner acted with gross negligence, the state would no longer be required to represent Dr. Fowler and should not continue to do so.
That would be an obvious conflict of interest, but hardly the only one in a matter dripping with ethical concerns. Perhaps the most glaring is the possibility that Dr. Fowler’s testimony in the Chauvin trial was influenced by the thousands of dollars he was paid from Mr. Chauvin’s defense team, who relied on him to bolster their case on the witness stand. This is a common problem in expert witness testimony – the perception that people in whatever field bend their views to accommodate the side that hired them. But it is particularly troubling in medical matters and criminal prosecutions, when the stakes are so high. To be clear, we have seen no proof this was the case for Dr. Fowler; thus far, we have only the concerns of the doctors outlined in the letter and the pending review.
It’s important to remember that Dr. Fowler has not been charged with any crime. By all previous accounts, he has been well regarded in his field. Nor is it even clear that his views were necessarily invalid. Our legal system assures that both sides of a case, whether the matter is criminal or civil, have the right to call experts of their choosing and then it’s up to a judge or jury to pass judgment on the competing views to determine where the truth rests. If an opinion is unpopular or goes against conventional wisdom or does not support the views of one or other political party it becomes all the more vital that it be protected.
We urge Governor Hogan to provide Mr. Frosh with all necessary resources to conduct his review as completely and expeditiously as possible. Much is at stake, including the credibility of not just law enforcement but of the broader criminal justice system – in Maryland and beyond.