Random notes on the Chauvin trial

Having watched the trial of Derek Chauvin from jury selection all the way through the parties’ cases, I want to offer my notes and impressions of what I saw. Hoping to provide some background and items of possible interest, I will compensate for the limitations of my notes by keeping them brief and conclusory (although this post isn’t short). I can only say in their behalf this is the way I see the case.

On Monday the attorneys will make their closing arguments and Judge Cahill will instruct the jury in the law. The jury will be sequestered during their deliberations. They will begin deliberations with the election of a foreman. I would guess that the jury will return with a verdict by Wednesday.

Chauvin rested his defense on Thursday with the invocation of his Fifth Amendment privilege against self-incrimination. I am not a juror in the case and am free to draw my own inferences from Chauvin’s silence. I always infer guilt from silence.

I was surprised by how far the case departed from my previous understanding of it. I think that the State presented a strong case and that Chauvin’s defense was thin and weak. The issue of drug abuse seemed to me to recede in importance as a cause of Floyd’s death, even in the testimony of defense medical expert David Fowler. Indeed, defense counsel Eric Nelson chose not to call the toxicologist he had reportedly lined up as his last witness in the case.

Pro bono prosecutor Steve Schleicher massacred defense use of force expert Barry Brodd on cross examination. Fowler — a forensic pathologist, formerly chief Maryland Medical Examiner — did a good job ascribing the death of George Floyd to causes other than asphyxiation by Chauvin, but I didn’t find his ultimate opinions credible in the face of the expert testimony presented by the State.

If I were a member of the jury, I would be bound not to draw any adverse inferences from Chauvin’s assertion of his Fifth Amendment right to remain silent. Based on the evidence, however, subject to deliberations with fellow jurors, I would vote to convict him of second degree manslaughter. I would vote not guilty on the second and third degree murder charges.

The third degree murder charge is problematic as a matter of law. We won’t know whether it can survive in the Chauvin case even if Chauvin is convicted of it until later this year when the Minnesota Supreme Court decides the appeal of Mohamed Noor on his conviction of the charge in the case arising from the death of Justine Damond.

KARE 11’s Lou Raguse interviewed one of the Noor jurors following the verdict in that case. Lou’s interview provides a good sense of how the jury might go about its business in this case.

I have repeatedly expressed my concern about the fair trial issues that permeate the case. They came up repeatedly during jury selection. How can the jury set aside possible concerns about the secondary consequences of a not guilty verdict in this case? The visible manifestation of these concerns is present in the martial security protecting the courthouse, which is essentially closed but for this trial.

The court has set up a page with the public filings in the case here. It is a valuable resource. In light of the pretrial publicity in the case, Eric Nelson moved for a change of venue outside Hennepin County last year on August 28.

Judge Cahill denied the motion by preliminary order on November 4. Nelson renewed his motion and filed supporting exhibits on March 18. I don’t find any further ruling on the venue issue.

Following Judge Cahill’s ruling against a change of venue, I think it was incumbent on Nelson to demonstrate that the problem of pretrial publicity would have been mitigated by holding the trial outstate. I don’t think he has done so, but I am nevertheless not clear on how this issue has disappeared from view. It’s an important issue.

Indeed, it has reemerged in its own way in the aftermath of the death of Daunte Wright this past Sunday. The jurors in the Chauvin case went home from court on Monday under the Minneapolis curfew order. Nelson raised the issue by motion for sequestration that was denied. The issue persists in myriad forms.

Governor Tim “tear down this” Walz assigned Minnesota Attorney General Keith Ellison the prosecution of this case last year in response to the demand of the mob. I wrote about Ellison’s contribution to the bizarre Twin Cities hellworld in “Who is Keith Ellison?”

Although Ellison’s office employs well over a hundred lawyers, Ellison looked for lawyers outside his office to try the case. He recruited attorneys Steve Schleicher, Jerry Blackwell, and Neal Katyal (and several of Katyal’s associates) to donate their services to the prosecution. Only Matthew Frank and Erin Eldridge have appeared in court from the Office of the Attorney General, and they have demonstrated the least ability in the courtroom. Ellison himself has done little more than hang around the courtroom on occasion. He has taken no speaking role.

The prosecution also benefited from the contribution of the services of medical experts Martin Tobin and Jonathan Rich. They were impressive witnesses, but there is no aspect of the prosecution which was not subject to overkill — from the bystanders, the bystanders’ videos, other videos, the Minneapolis Police Department witnesses, the use of force experts, and the medical experts. Cumulative testimony was the order of the day. The prosecution carries the burden of proof beyond a reasonable doubt, but still there should be some limit to repetitive evidence, as Judge Cahill himself observed on occasion without any apparent enforcement.

A few of Nelson’s strongest moments came from exploiting differences or inconsistencies among the prosecution witnesses, but what was he to do with the accomplished pulmonologist Dr. Tobin? Elicited by the prosecution, Dr. Tobin’s testimony gave us a taste of what life what would be like in court without rules of evidence. He was given a wide ambit for his opinions, to say the least.

Chauvin attorney Eric Nelson tried the case by himself. He wore down visibly and audibly in the course of the trial. I can’t imagine the exhaustion he must have felt over the past few weeks.

Nelson’s services were provided to Chauvin by Minnesota Police and Peace Officers Association, the umbrella organization of the Minnesota police unions (my description, not theirs). Attorneys are provided to covered officers on a rotating basis by the MPPOA LegalDefense Fund. The terms of the defense benefit are set forth here. Reuters covered this aspect of the case here.

I have commented on the case every morning during the 7:55 a.m. segment of Justice & Drew on Twin Cities News Talk KTLK 1130 AM. Jon Justice and Drew Lee made something of the segment. During the evidentiary phase of the trial WCCO TV’s Jason DeRusha joined the segment at the top to provide the headlines and let me limit myself to commentary and analysis. The addition of Jason has made the segment stronger.

I’ve heard from a lot of old friends and acquaintances. The show has a terrific reach and indispensable coverage of local news. Episodes are available in podcast form here. It has been my goal to help listeners understand the outcome of the case, whatever it is.

I joined the Spectator’s Americano podcast with Freddy Gray to talk about the Chauvin case on Friday morning. I have embedded the podcast below. In the podcast I make most of the points I make above. I love the Spectator in both its British and American incarnations and it was a great pleasure to talk about the case with Freddy.

NOTE: Other podcasts in the Spectator’s Americano series are posted online here.

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