This past Monday I previewed the trial of Derek Chauvin that commences with motions in limine at 8:00 a.m. and jury selection at 9:00 a.m. (Central) tomorrow morning. If you missed my preview and think you might find it of interest, it is posted here (including a link to the CourtTV live stream). I want to add these pretrial notes.
• I will appear as a correspondent on the trial for our friends at Justice & Drew on KTLK 1130 AM. They have me scheduled to kick off their coverage in the 7:55 a.m. segment Monday.
• The case against Chauvin raises critical questions of fact including Chavin’s training and the cause of Floyd’s death. These disputed questions of fact are for resolution by the jury under the “beyond a reasonable doubt” standard of proof that applies in criminal cases.
• By far the key issue, however, is whether Chauvin can get a fair trial in the lynch mob atmosphere that pervades the case. The visible manifestation of this atmosphere is the closing of the scene of the trial — the Hennepin County Government Center — for regular business and its encampment behind concrete barriers and barbed wire.
• In view of the atmosphere the court has submitted a 14-page questionnaire for completion by prospective jurors. The questionnaire is posted online here. It will play a substantial role in the process of jury selection.
• On Friday the Minnesota Court of Appeals ruled that Judge Cahill had improperly failed to treat its decision in the Noor case as binding precedent. It all but ordered Judge Cahill to reinstate the third-degree murder charge against Chauvin. The Court of Appeals decision is posted online here.
• I posted the Noor decision here. The Minnesota Supreme Court has agreed to review the Court of Appeals decision in the Noor case, but Noor’s appeal won’t even be heard by the Supreme Court until June. The Minnesota Supreme Court decision in the Noor case will be the last word on the applicability of the third-degree murder charge in these cases.
• Judge Cahill must formally decide whether to reinstate the third-degree murder charge. If he does so, will he delay the trial? I think he is highly unlikely to do so. The critical questions of fact remain the same.
• The court’s daily trial schedule is set forth in the court order posted online here (“Order regarding discovery, expert witness deadlines, and trial continuance”). Judge Cahill has allowed at least three weeks for jury selection. Opening statements are scheduled no earlier than March 29. The arrangements for jury selection reflect the lynch mob atmosphere that pervades the case.
• Chauvin has filed a laundry list of motions in limine that are posted online here. The state’s memorandum of law responding to the motions is posted online here. The state’s memorandum anticipates the prosecution’s kitchen-sink approach to the case.
• George Parry is an attorney and former prosecutor who has written at some length on the case for the American Spectator and his own Knowledge is Good site. I asked George what he thought of the evidence the state will seek to introduce against Chauvin. George responded with the following comments that are posted here with George’s kind permission:
As described, the nurse’s proffered testimony regarding how she purportedly could have intervened and saved Floyd and how prompt medical intervention would have saved him is highly speculative, and, to my mind, inadmissible. Even if the judge allows it, a competent cross examiner would have no difficulty blunting the impact of her opinion testimony and, quite possibly, turning her testimony to the advantage of the defense by taking her on cross step by step through the findings at autopsy and Floyd’s toxicology report.
The psychiatrist’s proffered testimony regarding Floyd’s panic and anxiety would only serve to reinforce the basis for finding that he died from excited delirium. Moreover, although as a doctor she would likely be allowed to offer an opinion regarding the cause of death, I am unaware of any body of psychiatric research or expertise pertaining to excited delirium. This is a cause of death almost exclusively within the purview of emergency room physicians who deal with it on a regular basis and who have amassed a body of relevant research.
The “blood choke” testimony does not address what is shown by the video evidence. That kind of choke hold shuts down the flow of blood borne oxygen to the brain by applying direct, focused force to both carotid arteries. There are two carotid arteries, one on each side of the neck. By kneeling on the side of Floyd’s neck, Chauvin might have blocked one carotid, but the other was on the flat pavement.
My old friend Dr. Michael Baden, who was retained by Floyd’s family to examine the body, has opined that the knee on the neck blocked the flow of blood borne oxygen to the brain, but that will be a tough sell given that the carotid on the opposite side of Floyd’s neck was on a flat surface and no focused, direct pressure was applied to it. Consequently, the proffered testimony of a martial arts expert about a choke hold that would apply direct, focused pressure to both carotids – and that does not appear in the video – would seem to be irrelevant.
As for the police procedure witnesses, Chauvin’s deviation from procedure appears to have been his failure to place Floyd in the “recovery position” (on his side) once he was subdued. But to my knowledge no one has ever argued that Floyd’s death was the result of positional asphyxiation which is the hazard that the recovery position is calculated to minimize.
And I don’t see why police and fire witnesses should be allowed to testify regarding the possible impact of Floyd’s proven massive fentanyl overdose. This is a matter for a toxicologist or, possibly, a forensic pathologist.
If I were defending Chauvin, even if the court allowed the foregoing testimony, in cross examination I would jam it down the prosecution’s throat.
With the possible exception of the police procedure witnesses, the proffered testimony impresses me as a desperate scattershot effort to prove the cause of death. If the prosecution had clear cut, well-founded evidence proving that Chauvin’s actions caused Floyd’s death, it wouldn’t be trying to present this kind of nonsense.
• George contributed to the 24-minute documentary produced by Centaur Filmworks analyzing the video of George Floyd’s arrest as well as the autopsy and toxicology results (video below). When first posted on YouTube by Centaur, it racked up more than 100,000 views before the YouTube truth squad “disappeared” the number of views, issued warnings about its content, and then required viewers to sign in with their passwords and state their age before they were allowed access.