A response to Jack Cashill on the Floyd cops

Jack Cashill asks in a May 18 American Spectator column “Why Has the Right Let the Floyd Cops Fry?” Subhead: “If they don’t speak up, no one will.” I want to respond briefly in this post for readers who may be interested in the specific subject Cashill takes up.

Cashill’s column is based on the May 12 motion filed by counsel for Tou Thao (one of the four officers charged in the death of George Floyd). The motion is posted here.

Thao’s motion is based on six exhibits, only three of which are public and accessible: Exhibit 2 (Press Release Report), Exhibit 5 (Open Letter to Political Leadership), and Exhibit 6 (memorandum of Assistant Hennepin County Attorney Patrick Lofton dated May 26, 2020).

Thao’s motion asserts the following statements as facts. The quotation below is from numbered paragraphs in the motion at pages 2-4. These are therefore the assertions of Thao’s attorney, Robert Paule. Paule alleges that Hennepin County Medical Examiner Andrew Baker stated an opinion regarding the cause of George Floyd’s death in response to essentially unlawful coercion by Dr. Roger Mitchell:

4. At some point prior to June 1, 2020, Dr. Roger Mitchell – former Medical Examiner of Washington D.C. – read Dr. Baker’s preliminary findings. See Exhibit 1.

5. Dr. Mitchell spoke with Dr. Baker before Dr. Baker finalized his findings on June 1, 2020. Id. During the conversation between Dr. Mitchell and Dr. Baker, the following transpired:

a. Dr. Mitchell “called Baker and said first of all Baker should fire his public information officer”. Id.

b. “Then Mitchell asked [Baker] what happened, because Mitchell didn’t think it sounded like Baker’s words.” Id.

c. “Baker said that he didn’t think the neck compression played a part…” Id.

6. Over the weekend, Dr. Mitchell thought about Dr. Baker more. Id. After the phone conversation between Dr. Mitchell and Dr. Baker, Dr. Mitchell decided he was going to release an op-ed critical of Dr. Baker’s findings in the Washington Post. Id. Dr. Mitchell first called Dr. Baker to let him know. Id. The following transpired:

a. Dr. Mitchell called Dr. “Baker first to let him know that he was going to be critical of Baker’s findings”. Id. “In this conversation, Mitchell said, you don’t want to be the medical examiner who tells everyone they didn’t see what they saw. You don’t want to be the smartest person in the room and be wrong. Said there was a way to articulate the cause and manner of death that ensures you are telling the truth about what you are observing and via all of the investigation. Mitchell said neck compression has to be in the diagnosis.” Id.

7. Following the two conversations, on Monday June 1, 2020, the Hennepin County Medical Examiner issued a Press Release Report containing the final autopsy findings. See Exhibit 2.

a. The final autopsy findings included neck compression. Id. This was contrary to Dr. Baker’s conclusion before speaking with Dr. Mitchell twice.

8. On November 5, 2020 the State met with Dr. Mitchell. See Exhibit 1.

a. The following prosecutors were present: Lola Velazquez-Aguilu, Joshua Larson, Matthew Frank, Erin Eldridge, and Corey Gorden. Id. Paralegal Dionne Dodd was also present. Id.

b. If this interview was recorded, the audio has not yet been disclosed to the Defense.

c. Dr. Mitchell told the State that a friend of his had posted the op-ed on Facebook. Id. The State memorialized that Dr. Mitchell was going to send them the op-ed. Id.

i. The Defense has yet to receive any copy of this op-ed.

With one exception these statements by Thao attorney Robert Paule are based on Exhibit 1. Cashill adopts Paule’s statements as facts in this summary:

Thao’s evidence is compelling. Reportedly, Mitchell subverted justice on two separate fronts. According to the motion, he threatened to write a disparaging op-ed about Dr. Andrew Baker, the Hennepin County chief medical examiner, if he failed to amend his initial autopsy findings.

* * * * *

According to Thao’s motion, Mitchell called Baker a second time to give him a heads up on the threatened Washington Post op-ed and warned him, “You don’t want to be the medical examiner who tells everyone they didn’t see what they saw,” adding that “neck compression has to be in the diagnosis.” To paraphrase Joe Biden, “Well, son of a bitch. Neck compression was in the diagnosis.” Apparently appeased, Mitchell never wrote the op-ed.

Cashill qualifies these alleged facts by his use of the adverb “reportedly,” the report being Thao’s motion and/or Exhibit 1 — although Cashill doesn’t say so. Exhibit 1 is the source of “evidence” that Cashill judges “compelling.”

What is Exhibit 1? I think Cashill has no idea.

I think Cashill has no idea because Exhibit 1 hasn’t been made public. I infer that Cashill hasn’t seen it with his own eyes because of his use of the adverb “reportedly.”

Exhibit 1 is not included among the exhibits that have been posted by the court. Two of the six exhibits filed with Thao’s motion were filed under seal and omitted from the filings accessible to the public. They obviously consist of grand jury testimony.

Exhibit 1 is not under seal, but it is inaccessible to the public. It is, according to court spokesman Spenser Beckett, “confidential.”

I don’t know what “confidential” means in this context. I have asked the court for an explanation and put in calls to Paule as well as Assistant Attorney General Matthew Frank, who represents the State in the case. As of this morning, I only have Spenser Bickett’s explanation that Exhibit 1 has not been posted because it is “confidential.”

Assistant Attorney General Frank, by the way, responded to Thao’s motion by letter dated May 12, 2021. The letter is posted here. In his two-sentence letter Frank asserted that “[t]he bizarre allegations offered in support of the motion are false and wrong…”

Frank also asked the court for one week to file a substantive response to Thao’s motion. If granted, the response would have been due yesterday, but I have not seen any court order addressing Frank’s request. As of this morning, other than Frank’s letter, no response has been filed.

Cashill omits any mention of Frank’s denial of the allegations of Thao’s motion or of any forthcoming response by the State. I intend to wait for the State’s response before assessing the credibility of Paule’s “evidence” and related allegations.

By inference, Thao’s motion and Cashill’s column accuse Hennepin County Medical Examiner Dr. Andrew Baker of testifying to an opinion which was not truly his own. Paule puts it this way in his motion at page 6: “The State did nothing in response to this coercion. Instead, the State knowingly allowed Dr. Baker to take the stand in State v. Chauvin and testified [sic] to coerced statements.”

Baker’s opinions were a fit subject for cross-examination. Indeed, Baker was cross-examined about his opinions at the trial of Derek Chauvin by counsel for Derek Chauvin (video here). Paule refers to Baker’s testimony at trial and before the grand jury in paragraph 10 at page 4 of his motion.

Paule essentially accuses Baker of perjury and the prosecutors with knowledge of the chain of events he lays out of professional misconduct. These are serious charges based on evidence we have yet to see.

Cashill not only assesses the merits of Thao’s motion with minimal basis to do so, he renders a harsh judgment on unnamed “conservative media” for not having joined him in adopting Paule’s allegations as their own:

With only a few exceptions, the conservative media reported on this latest outrage as matter-of-factly as they had on the sundry other injustices that deformed the Chauvin trial. Their reticence has consequences. Feeling isolated and abandoned, police officers are now inclined to approach black suspects as gingerly as they would an unexploded IED. As my police friend says, “It is absolutely crazy what street cops have to put up with all day long as a result of this bulls***.”

For the reasons stated above, I am writing with only a preliminary view of the merits of Thao’s motion. I have withheld commentary on the merits of Thao’s motion until the State files its response. I’ll have more to say when additional information becomes available. Speaking of BS, however, the attribution of the “Ferguson effect” to conservative media by Cashill seems to me a case in point.

UPDATE: This afternoon the State filed a 15-page memorandum opposing Thao’s motion. It is accessible online here. The memorandum adds some background to the allegations of Thao’s motion and confirms that Drs. Baker and Mitchell spoke before June 1, 2020, although the State knew nothing about it until it interviewed Dr. Mitchell as a possible expert in the fall of 2020. The State too cites Exhibit 1, which remains inaccessible to the public. My comments above are consistent with the points made in the State’s memorandum.