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Chauvin Pre-Trial Day 1: Will Floyd’s Prior Arrest-Related Drug Ingestion Be Admitted As Evidence?

Chauvin Pre-Trial Day 1: Will Floyd’s Prior Arrest-Related Drug Ingestion Be Admitted As Evidence?

A full 16 of first pool of 50 prospective jurors dismissed “for cause” based on their questionnaire answers before voir dire begins!

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.

As a reminder, I am “LIVE Parlering” the trial in real-time over at my Parler account, which you can find using my Parler handle:  @LawofSelfDefense.

This afternoon the prosecution, meaning Assistant Attorney General Matthew Frank, and the defense, meaning Attorney Eric Nelson, worked through a bunch of evidentiary motions before trial Judge Peter Cahill.

These motions are entirely routine in any criminal prosecution, and in a sense they are part of defining the battlefield on which the legal fight will be won or lost at trial.  In effect these motions define what evidence and legal arguments will be permitted to be made at trial.  The preference is to hash these issues out before the trial itself begins so that the trial proper, when the jurors are actively participating, can be as efficient as possible.

Generally, these evidentiary motions are referred to as in limine motions, essentially meaning motions to limit what evidence will be permitted before the jury.  For example, if a suspect was pulled over and illegal drugs were discovered in the car, but the discovery was the result of an unconstitutional search, the defense counsel would make an in limine motion to exclude the unjustly discovered drugs from being introduced as evidence at trial.  In practice, these types of motions tend to be more broad ranging than just excluding evidence, however.

Today’s motions in the Chauvin case, for example, touched on a wide variety of both evidentiary issues as well as simple matters of process and practice for the trial itself.

One motion (Motion #2), for example, addressed how most properly to refer to Chauvin, Floyd, and others during the course of the trial.  It’s theoretically permissible to refer to Derek Chauvin throughout the trial as “the defendant” and to refer to George Floyd throughout the trial as “the victim” or “the deceased.”

In practice, however, such phrasing tends to be emotive and prejudicial, and many judges prefer to avoid such terminology.  Fortunately for the defense, Judge Cahill is among those, and he expressed a strong preference for the prosecution and defense to refer to parties and witnesses by their actual names—so, “Mr. Chauvin” and “Mr. Floyd”—rather than a legalistic label.  The state and defense agreed to abide by the court’s preference, while noting that they had only incomplete control over how witnesses might phrase things.

Another motion (Motion #1) dealt with the issue of whether a witness could be re-called to the stand if, after they initially testified, they had then viewed the testimony of other witnesses.  It is normal practice to avoid having witnesses hear the testimony of other witnesses, because doing so can color their own testimony.  All witnesses, while waiting their turn, are told to not listen to the testimony of earlier witnesses, and are not permitted in the courtroom prior to their own testimony to prevent this practice.

But what about after a witness is done testifying?  If they truly are done, and will not be called back into court to testify again, there’s no reason they shouldn’t hear the testimony of other witnesses. But what if they listen to such later witness testimony, and suddenly discover that they are being called back to testify a second time?

Here the court stated its preference that a witness not be recalled if after they themselves testified they later heard testimony of other witnesses.

Most of the motions discussed this afternoon resulted in little argument between the state and prosecution, often no argument whatever, but there were some exceptions.  One such exception had to do with the admissibility of evidence about George Floyd having ingested illicit drugs upon arrest, to the point of having to be hospitalized.

The defense narrative of innocence in this case is obviously that what killed Floyd was not Chauvin’s knee but rather the three-fold fatal dose of fentanyl found in Floyd’s body upon medical examination.  The belief is that when he realized he was about to be arrested for attempting to pass a bad $20 bill, Floyd ingested meth and fentanyl drugs he had on his person in order to prevent their discovery by the arresting officers.  The dose ingested, unfortunately for Floyd, for Chauvin, for all of Minneapolis, and for the United States generally, was more than sufficient to prove fatal.

Almost exactly a year prior to the day Floyd died with a fatal dose of fentanyl in his body he was also the subject of a lawful arrest and also apparently ingested illicit drugs to avoid their discovery by the arresting officers. In that case Floyd received hospital care and did not die as a result of the drug ingestion.

Naturally, with a nearly identical drug ingestion event having occurred with Floyd merely a year prior to his death, the defense would like to get evidence of that prior event in front of the jury.  Their prior efforts to get that event admitted into evidence, however, had not gotten traction because the judge perceived the evidence as more prejudicial than probative.

The term probative refers to the ability of a piece of evidence to make a claimed fact apparently more or less true. In effect, it is evidence that allows a finder of fact to determine whether they believe a claimed fact to be true or false.

An example might involve a case in which a defendant is accused of having stolen a watch owned by the victim.  Upon arrest, the defendant is found wearing a watch that has the victim’s initials engraved on the back, and those initials are not shared by the defendant.  The defendant’s defense is that the watch is actually his own property.  The evidence of the victim’s initials is probative to determining whether the watch is actually the property of the victim or of the defendant.

The term prejudicial refers to evidence that is likely to unduly influence a finder of fact in an improper way.  Prejudicial evidence is frequently of a type intended to suggest that because the accused committed some bad act in the past that he has a propensity to commit the independent and unrelated bad act of which he is now accused.

An example might involve a case in which a defendant is accused, again, of having stolen a watch owned by the victim.  Upon investigation it is learned that five years prior the defendant had been convicted of drunk driving.  Although the drunk driving conviction is true, it is not relevant to the charge of theft, and if admitted into evidence might improperly lead the jury to conclude that the defendant is a “bad person” generally and thus has a propensity to commit the crime of theft.

Often some piece of offered evidence has some probative value as well as some prejudicial baggage, and it falls to the judge to balance the two in determining whether the evidence should be admitted before the jury. In drawing that balance the judge looks both at the extent to which the offered evidence will help the finder of fact determine the truth of any element of the crime charged, on the one hand, and the extent to which the evidence is simply prejudicial on the other.

High probative value and low prejudicial tendency, and the evidence is likely admissible.  Low probative value and high prejudicial tendency, and the evidence is likely inadmissible.

In the matter of Floyd’s 2019 drug ingestion event, Judge Cahill appears to feel rather strongly that the evidence of that event is far more prejudicial than probative.  A large part of the limited probative value of that 2019 ingestion evidence, however, is really that it’s largely duplicative of other evidence that clearly is admissible in this trial.

The defense argued this afternoon that the evidence of the 2019 ingestion event ought to be admitted as proof of a modus operandi, or “method of operation,” in effect that “this is what Floyd does when confronted by police.”

Modus operandi is an exception allowing for the admission of prior bad act evidence when the prior bad acts appear to be a consistent pattern or practice of behavior.  So, someone charged with second-story burglary might not have a prior drunk driving conviction admitted as evidence at their trial for second-story burglary, but if they have prior convictions for second-story burglary in their record those convictions might well be admissible as a pattern or practice of behavior in their trial for the newest charge of second-story burglary.

Evidence of Floyd’s drug ingestion as modus operandi evidence would be helpful to the defense because, again, this ingestion is the defense argument for the cause of Floyd’s death, rather than Floyd’s death having been caused by Chauvin’s knee.

In making this argument before Judge Cahill this afternoon, however, defense counsel met a cool reception. I should mention that the defense had offered this evidence previously, and Judge Cahill had given a kind of blanket rejection at that time, but here the defense is re-offering the evidence on the grounds that they had additional details that they were lacking when they made the initial offer of evidence.

If the point of this prior ingestion event is to help the finder of fact conclude that Floyd had ingested drugs on the day of his death, as well, then it really seems duplicative of other evidence in the case. After all, the medical examination of Floyd’s body after his death found a three-fold fatal dose of fentanyl in his system, as well as methamphetamine, and that medical examination evidence is admissible.  So, the finder of fact can conclude that Floyd died of drug toxicity, rather than Chauvin’s knee, without the need for evidence of the prior drug ingestion event.

And if the evidence of the prior dug ingestion event had little probative value, in the context of other available evidence of Floyd’s drug toxicity, it begins to look a lot like it’s being submitted largely to show a propensity for bad conduct—which is not a proper basis for the admission of evidence.

So, there’s a general rule of evidence, termed 404(b), that generally excludes prior bad acts or character evidence that’s offered as proof of unrelated currently charged misconduct, stating:

404(b). Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. …

As those ellipses suggest, however, there are a number of exceptions to this exclusion of admissibility—like the modus operandi exception we discussed above.

… It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(You can find the entirety of Minnesota Court Rules of Evidence Rule 404 here.)

In the exchange between the defense counsel and Judge Cahill on this motion it’s clear that the Judge is having difficulty finding a 404(b) exception that would allow for the admission of the prior bad act of Floyd’s 2019 arrest-related drug ingestion.

Frankly, I thought the defense counsel in arguing for the admissibility of this prior drug ingestion evidence did a less than stellar job here, and certainly should have been better prepared to argue more forcefully given the prior cool treatment the argument had received from Judge Cahill in the past.

Judge Cahill did note that evidence of that prior arrest-related drug ingestion event could be admissible for purposes other than, apparently, mere propensity.  For example, if Chauvin had knowledge of or had participated in that prior arrest, that might have informed Chauvin’s own perceptions and conduct during the later arrest in which Floyd died, and that would be a basis for admissibility completely independent of Floyd’s own propensity.

The defense is not arguing, however, that Chauvin either had knowledge of nor participated in that prior arrest, so that basis for admissibility does not exist in this case.

Alternatively, the door to this prior arrest-related ingestion event could be admissible if the prosecution “opened the door” by arguing that Floyd’s drug levels were not the result of voluntary ingestion.  If, for example, the state were to suggest that perhaps Chauvin had forced the drugs into Floyd’s mouth, then the defense could offer the evidence of the prior ingestion event to show the jury that it was likely that Floyd had, in fact, ingested the drugs himself.

The state is not, however, suggesting that the drugs got into Floyd’s system in any manner other than by voluntary ingestion.

If you’re interested in hearing that roughly 10-minute long argument by the defense, and Judge Cahill response, to can enjoy that exchange here:

In conclusion on this issue, Judge Cahill didn’t reject the admissibility of the drug ingestion evidence outright, and he left the door open for the defense to file a more detailed motion making their argument for admissibility of that evidence, but he clearly was not favorably disposed to the argument in the moment.

Most of the other motions in limine discussed today were settled without objection, meaning the state and defense came to an agreement between themselves and the judge simply noted that the issue captured by that motion had been resolved.  Many of these were simply matters of evidentiary discovery and sharing between the state and defense.

A few of the motions, like that involving Floyd’s prior arrest-related drug ingestion, were “reserved,” meaning in effect that they are still in play and not yet resolved by the court at this time.

After the motions discussion was wrapped up for the day, there was some entirely separate progress made on the jury selection front, despite the jury pool having been dismissed almost as soon as they’d arrived at the courthouse this morning.

Specifically, based on individual juror responses to the 14-page juror questionnaire, the state prosecutors and the defense team were able to agree to dismiss 16 of the first 50 pooled jurors for cause.

Dismissing a prospective juror “for cause” doesn’t mean they’ve done anything wrong, it just means that there’s a good reason for them to not serve on the jury. This “cause” could be some relationship a juror has with one of the parties involved in the case, it could be a home responsibility that could not be met consistent with the duties of serving on a jury in a multi-week murder trial, or any other of a number of perfectly good reasons.

When the state and defense can agree that a prospective juror can be dismissed for cause, then obviously there’s no argument between the parties with respect to that prospective juror and they are simply dismissed from the case.

More difficult are instances in which one party wants a prospective juror removed for cause, and the other party objects, perhaps because the other party would strongly prefer to have that person serve on the jury for strategic reasons.

In the case of such disagreement the parties can each make their arguments, for cause and against cause, before the judge, and the judge will determine whether cause exists to dismiss the prospective juror.  If so, the prospective juror is dismissed.

If the judge fails to find cause for dismissal, however, there’s another way the party that wants the prospective juror dismissed to get them off the trial, and that’s by using one of their peremptory strikes.

Each party in a criminal trial has a limited number of peremptory strikes they can use to dismiss a prospective juror without having to make a “for cause” argument.  Normally in Minnesota criminal cases the defense is granted 5 peremptory strikes and the state is granted 3 peremptory strikes.

In this high-profile case, and amidst concerns about possible difficulty in drawing the necessary 12 jurors and 2 alternates into an unbiased panel, Judge Cahill has tripled the normal number of peremptory strikes, to 15 for the defense and 9 for the state.

With that, the court recessed for the day.

Trial proceedings are scheduled to begin again tomorrow at 8am CT, with the state and defense meeting again with Judge Cahill to discuss any still-open motions that need to be resolved. Then the jury pool is schedule to report to the courthouse at 8:30am CT, with jury selection scheduled to being at 9:00am CT.

Of course, all of that could still be brought to a screeching halt at the instruction of the Minnesota court of appeals, as discussed in today’s earlier post on today’s court proceedings, but we won’t know that until it happens. Or not.

OK, folks, that’s all I have for all of you today.  Until tomorrow, then, stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service.  If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here:  Law of Self Defense Membership Trial.

[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]

[AFB Note: Corrected misspelling of “Cashill” to “Cahill,” 3/19/2021]

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Comments

Thanks Andrew, I learn some new things here.

Found and followed on Parler.

What about the heart condition? Does that play in here?

    Gremlin1974 in reply to Andy. | March 8, 2021 at 8:59 pm

    (IANAL)This trial is going to include a MASSIVE amount of time and argument on medical evidence (I’m a Nurse so I will find it interesting). I am sure the Floyd’s Medical status will come into play, though I don’t know that it will be central to the case.

      Observer in reply to Gremlin1974. | March 9, 2021 at 6:20 pm

      I suspect that the severely diseased condition of Floyd’s heart will be central to the case, because it was one of the key factors in Floyd’s death. The Hennepin Co. medical examiner said that the poor condition of Floyd’s heart, combined with the massive drug overdose and the fact that Floyd had been struggling with the cops (which added to the strain on his heart by increasing his heartbeat and respiration rate) were what caused his death. And significantly, that struggling (where Floyd was kicking and thrashing because he didn’t want to be in the back of the cop car) happened before the cops put Floyd on the ground.

Mr. Branca,

Thank you for filling the down time, while we wait for the upper courts to make a decision on the applicability of the 2rd Degree Murder charge to this case. Many people, including attorneys who do not do trial work, are unfamiliar with the minutiae which exist in trial management. Many thanks.

    Milhouse in reply to Mac45. | March 9, 2021 at 12:58 am

    3rd degree. No one’s disputing the 2nd degree charge, which is obviously applicable if the state makes its case. It’s the 3rd degree that seems inapplicable given the state’s alleged facts, but that the court of appeals has newly reinterpreted so that it would apply.

FiftycalTX2 | March 8, 2021 at 8:59 pm

My god, what a complete account. Really great coverage. This should be epic. I hope MN is prepared for the riots that follow.

    MajorWood in reply to FiftycalTX2. | March 9, 2021 at 10:57 am

    What makes you think that it will be limited to MN. I had a thought last night that the left is hoping the likely not guilty verdict will prompt sufficient riots that Marshall Law can be implemented. So far all of their other efforts have fallen short.

    Since this did not go through the Grand Jury process, can Chauvin sue for malicious prosecution?

      Char Char Binks in reply to MajorWood. | March 9, 2021 at 4:54 pm

      The Left doesn’t want martial law, at least not if used against their own. They bail out Anti1A and bLM thugs, and Left prosecutors drop charges against members of The Special People Club for murders caught on video, or with otherwise strong probable cause. They don’t need martial law to get what they want. In fact, lawlessness serves just as well, although the Left has also proven very willing to use the full weight of government power to oppress their opposition.

Gremlin1974 | March 8, 2021 at 9:00 pm

Andrew, As always thanks for making things understandable for those of us who have gone through the several years of how to speak in legalese.

James B. Shearer | March 8, 2021 at 9:09 pm

It seems to me that the defense should argue that the prior incident should be admissible not just as evidence that Floyd ingested the drugs voluntarily (which apparently is not in dispute) but as evidence that Floyd ingested the drugs voluntarily under circumstances likely to produce an overdose death while being arrested.

After all if Floyd had ingested the drugs for his own reasons it might seem to the jury to be unlikely that he had taken a fatal dose and that his later arrest was just a random quirk of fate that had nothing to do with his death.

But if Floyd took the drugs because he saw the police coming then this makes a fatal overdose more likely and explains what would otherwise be the unlikely coincidence of his being arrested before dying.

    Blood drug and novel psychoactive substances screens:
    1. Fentanyl 11 ng/mL
    2. Norfentanyl 5.6 ng/mL
    3. 4-ANPP 0.65 ng/mL
    4. Methamphetamine 19 ng/mL
    5. 11-Hydroxy Delta-9 THC 1.2 ng/mL;
    Delta-9 Carboxy THC 42 ng/mL; Delta-9 THC 2.9 ng/mL
    6. Cotinine positive
    7. Caffeine positive
    https://www.hennepin.us/-/media/hennepinus/residents/public-safety/documents/floyd-autopsy-6-3-20.pdf

    Observer in reply to James B. Shearer. | March 9, 2021 at 6:03 pm

    If I were a juror on the case, I’m not sure I’d really care one way or the other why Floyd took the drugs. Lots of drug addicts have accidentally given themselves fatal overdoses. Their bodies build up a tolerance to the drugs over time, so they need bigger and bigger doses to achieve the same high. We know Floyd was a chronic drug user, and he told the cops he’d been “hoopin'” earlier that day, so he could easily have given himself the fatal dose of fentanyl even before the cops were called about the counterfeit bill.

    And once the drugs were in Floyd’s body, his fate was sealed, regardless of whether he put the drugs there to hide them from the cops or merely for the purpose of getting high. Floyd’s severely diseased heart wasn’t going to be able to withstand that massive dose of fentanyl, no matter what the cops did.

Maybe here, nor there, defense counsel could lose the beard for the trial, get some different glasses and try to show some warmth, appeal, compassion and personality. The captioned photo suggests arrogance and detachment.

Were I the one on trial, I probably would not want him on my jury, based on nothing more than initial impression. Ah well, I guess that Officer Chauvin selected him, I wish them both well in what is likely to be a hostile environment.

    ee76 in reply to NotKennedy. | March 9, 2021 at 7:53 am

    After the trial the defense counsel will have to lose the beard and glasses, and style the hair differently if he wants to ever go out in public again. Trump’s lawyer got harassed just for representing him.

    The Friendly Grizzly in reply to NotKennedy. | March 9, 2021 at 4:48 pm

    THAT you call a beard?!? That’s no beard. It’s a fashion statement.

The trial hasn’t really begun in earnest and I’m already riveted. Thank you Mr. Branca for the continuing excellent reporting.

Chauvin has filed a petition with the State Supreme Court seeking review of the intermediate court of appeals decision regarding Noor.

https://macsnc.courts.state.mn.us/ctrack/docket/docketEntry.do?action=edit&deID=1141376&csNameID=97463&csInstanceID=112323&csIID=112323

Great report!

I showed up for jury duty each and every time I was called. 99% of the time I was dismissed when asked my occupation and I answered, “Psychiatrist and Neurologist”. “NEXT!”

    randian in reply to drsamherman. | March 9, 2021 at 12:39 am

    I showed up for jury duty each and every time I was called. 99% of the time I was dismissed when asked my occupation and I answered, “Psychiatrist and Neurologist”. “NEXT!”

    I get thrown off the jury panel when I answer “engineer”.

      I get stricken every time when I answer “attorney”.

      I get rejected, probably for having a southern accent in Massachusetts. Thank goodness for being rejected, it is costly and time consuming just to get to the courthouse. One more year and I will be off the list for being too old.

      Had I known just how socialist Massachusetts was when I moved here I would NEVER have registered to vote and probably been able to stay under the radar.

      The Friendly Grizzly in reply to randian. | March 9, 2021 at 3:59 pm

      Steam, or Doesel-electric? /S

    Milhouse in reply to drsamherman. | March 9, 2021 at 1:21 am

    I was seated on a med mal case, but I believe it was because the plaintiff was out of strikes. The trial lasted 4 weeks.

    I normally want to be on a jury, but the one time I was called for a criminal trial it was a charge of illegal gun possession. Aha, I thought, here’s a chance for a Fully Informed Juror™ to strike a blow for the second amendment. I resolved to keep my mouth shut, get on the jury, and then be in his corner.

    However I could see from what both lawyers were carefully not saying that the defendant had actually committed a violent crime but that we weren’t going to be told about it or given evidence of it. Now I was conflicted. If the only evidence we were given was on the gun charge, I could not in good conscience vote to convict; but if he really was a dangerous criminal I didn’t want to be responsible for putting him back on the streets. So I took the easy way out by talking about the second amendment and a juror’s right to judge the law as well as the facts, and got an easy dismissal.

      Jack Klompus in reply to Milhouse. | March 9, 2021 at 7:39 am

      And everyone of course expressed their awe at your astonishing intelligence of the law and depth of your knowledge. Just like they do here.

        Milhouse in reply to Jack Klompus. | March 9, 2021 at 10:22 am

        My purpose was to tell the judge that he didn’t want me on the jury, and I succeeded. Had I not inferred from the lawyers’ presentations that an actual crime had occurred, and that we were not going to be told about it, I would have kept quiet about FIJA and tried to be picked. The time I was on a jury I did in fact make a good impression on my fellow jurors, and was persuasive.

        (Not that we ever had much disagreement. As soon as we walked in to the jury room for deliberations, we all looked at each other and agreed that there was no case. But I said we owed it to the plaintiff to go over the points they’d asked us to, and think carefully whether perhaps we were mistaken, and perhaps the defense had bamboozled us. After all, how could a case that took 4 weeks to argue be as open and shut as it appeared to all of us? So we discussed it methodically, looked into every potential weakness that we could think of, asked to look at a log book that might show the defense misleading us about something — it didn’t — but there was nothing. We were sorry for the plaintiff, but couldn’t see how her problems were the defendants’ fault. As I said, it was an Act of God, so let her sue Him.)

        The Friendly Grizzly in reply to Jack Klompus. | March 9, 2021 at 4:01 pm

        And, no doubt you are one of or the only down tick that he has received.

      Joe-dallas in reply to Milhouse. | March 9, 2021 at 8:42 am

      milhouse comment – “So I took the easy way out by talking about the second amendment and a juror’s right to judge the law as well as the facts,”

      I take the same approach. My personal ethics require me to make a judgment as to whether the facts apply to the law, not just whether the facts actually occurred. Thus I have been struck from many a panel. I really dont want a judge telling me what the law is, nor do I think it is appropriate. Milhouse and I have discussions as to whether the 3rd degree murder charge is applicable. The point is that I as juror should make the determination as to the law and not the judge (my leaning is that the 3rd degree is not applicable).

      A good example is when I was an expert witness in a tax fraud case. I was to testify as to 1) the applicable tax law as applied to the facts and 2) the applicable professional standards of a CPA as to determine the appropriate authority to support the tax position taken on a return. The judge barred my testimony under issue 1 since he , the judge, was the one to determine the law and under issue 2, since he was the judge of the law, there was no need to determine of the CPA’s application of the various legal authorities affected the professional standards. The judge got both the applicable law and the professional standards wrong.

      In summary, I think it is the jury’s responsibility to understand and make a judgement as to both the law and the facts.

      Mac45 in reply to Milhouse. | March 9, 2021 at 11:00 am

      I’m confused here.

      You were engaged in jury selection and were able to divine that a man, charged with a weapons violation, was, in fact, actually engaged in a serious felony, for which he was noot charged. Sherlockian.

      Then, you freely admit that you were going to ignore any evidence that the defendant had, indeed, violated the law, and rule for acquittal simply to advance YOUR personal agenda.

      You do understand that your job, as a juror, is to rules on whether, in your opinion based upon the evidence presented at trial, whether the defendant materially violated the law. It is not to decide the constitutionality or propriety of the law in question, only if the defendant violated it without having an exculpatory defense.

      The problem with the jury system, is that people fail to understand their place in the system. That place is relatively limited. It is the place of the judge to accept or decline the jury’s decision and set the penalty, not that of the jury [except in some capital cases]. It is the place of the judge to make decisions enforcing the rules of evidence and manage the trial, in accordance with established judicial rules, decisions and laws. We have seen the problems which occur when people decide to ignore the rules to advance their own agendas and desires by ignoring thee rules. The defendant in your gun possession case was one of them.

        Milhouse in reply to Mac45. | March 9, 2021 at 4:24 pm

        Yes, Mac, I was able to divine that. It’s not hard. You have to listen to what people are not saying, as well as to what they are. Sometimes people don’t say things very loudly. For instance in countries where people are not free to say what they wish (which now includes many workplaces and campuses in the USA).

        In this case it was a peculiar way that both sides were talking around something; there was a big empty space in the picture they were painting, and it was clear to me what was in that space.

        And yes, had it been a straight gun possession case I was planning to vote for acquittal, ignoring any evidence that the defendant had violated a purported law, because it is invalid, and thus the defendant could not have violated it. Judges tell jurors that they must decide only the facts, and accept the law as he tells it to them, but they are lying. Juries are judges of both the facts and the law, but it’s illegal for lawyers to inform juries of that fact, and if a juror shows evidence of knowing it he will be automatically dismissed, as I was. So someone who does know should keep that knowledge secret, unless he wants to be dismissed.

        Are you unaware of FIJA?

      James B. Shearer in reply to Milhouse. | March 9, 2021 at 11:44 am

      “However I could see from what both lawyers were carefully not saying that the defendant had actually committed a violent crime but that we weren’t going to be told about it or given evidence of it ..”

      How did you know it wasn’t a self-defense case in which the first jury had bought the self-defense part but had hung on a weapons charge? Did you look the case up after you were dismissed?

        Joe-dallas in reply to James B. Shearer. | March 9, 2021 at 2:24 pm

        voir dior can give the jurors a good sense of the case. I was #7 in a jury pool which meant I was going to be on the panel unless i got struck. I correctly surmised that the prosecution had offered the defendant a plea bargain with a sentence close to the maximum with the defendant choosing a trial for sole the purpose of trying to get a better deal in the sentencing phase. When I told the judge that, I got struck.

        Milhouse in reply to James B. Shearer. | March 9, 2021 at 4:26 pm

        No, I didn’t look it up. I’m not sure if we had even been told the defendant’s name at that point. It seemed clear to me that what they were avoiding any mention of was a crime, so I conducted myself accordingly.

healthguyfsu | March 9, 2021 at 12:26 am

Those jurors who were dismissed were the smart ones that found a way to get off the case quickly. You don’t want to be on this jury.

NJ observer | March 9, 2021 at 1:25 am

Mr Branca,
Wonder if you could comment on and explain why the state felt it necessary to retain outside counsel as part of the prosecution team?

Here’s a point that I think both the defense lawyer and Mr Branca missed.

At the 5 minute mark in the video the judge asks the key question: “Why does it matter that he took it in response to police action, that is the police coming up to his car, versus maybe 15 minutes before, or an hour before?”

The answer should be obvious: A lot of people’s reaction to the theory that Floyd died of a drug overdose is stark disbelief. Come on, they say, are you seriously trying to tell me that right at the moment that a cop had his knee on his neck, he happened just by sheer coincidence to die of something completely different?! If he took too much drugs, why didn’t he die 15 minutes earlier, or 15 minutes later? He was fine when he was arrested, the cop put his knee on him, and less than ten minutes later he was dead. Those two things must be related.

But this evidence explains it. The reason he died just then is that he had just swallowed the drugs the very moment the cops started to arrest him. The reason he would choose just that moment to take drugs is so that he would not be caught with them. And that also explains why he took so much of them, much more than he would normally take.

Knowing that he had done exactly the same thing in the same circumstances a year earlier, and that he would have died then if he hadn’t been rushed to the hospital, would be very probative, and thus the jury should be allowed to hear it.

    mark311 in reply to Milhouse. | March 9, 2021 at 5:04 am

    It’s a good point and one that will be thrashed out (I suspect ) by various expert testimonies. On one hand the drug didn’t appear to exhibit significant issues on him during the course of restraint (based on a previous comment by justsayN20) and further on the other it could well have played a part in his death. That said it doesn’t really explain why the restrain type was used for such a significant period of time. That appears to be contrary to best practise as I’m led to believe from other reading.

      Milhouse in reply to mark311. | March 9, 2021 at 10:29 am

      As I understand it, that restraint was the recommended one for suspects experiencing excited delirium. For the suspect’s safety as much as for anything else. Chauvin suspected that was what Floyd had, so he was reluctant to change to a different restraint. What if Floyd suddenly threw a fit or something, and injured himself because he was able to move about? The ambulance was on its way, so he figured it was best to stay as he was and wait for it.

    Joe-dallas in reply to Milhouse. | March 9, 2021 at 9:04 am

    Millhouse comment – “If he took too much drugs, why didn’t he die 15 minutes earlier, or 15 minutes later? He was fine when he was arrested, the cop put his knee on him, and less than ten minutes later he was dead. Those two things must be related.”

    the question that I have is “what is the normal time frame from intake of an overdose of fentanyl and death?” Floyd died at approximately 20-25 minutes after the police initially showed up and approximately 20-25 minutes after he ingested the drugs. If the normal range of

    If the normal range of time is between 1-2 hours, then the argument could be made that chauvin’s actions contributed to his death. If the normal range for death after ingesting an overdose is between 15-30 minutes, it becomes extremely difficult to make an argument that chauvin’s actions contributed to his death.

    It should be noted that drug overdose death do not occur immediately, it takes several minutes to hours. (unlike cyanide or some other drugs used for suicide).

      “the question that I have is “what is the normal time frame from intake of an overdose of fentanyl and death?”
      *****
      I’m sure that the paid “experts” will be at the center of this question. A quick look at fentanyl pharmacodynamics shows that fentanyl is rapidly absorbed by oral mucosa so that peak serum levels occur about 20-30 minutes after exposure. Ingestion without mucosal exposure results in a much slower peak level. If he had small bags of narcotic powder and tried to swallow the powder, there would likely be a lot of mucosal exposure and rapid rise in blood level; as is demonstrated by the post-mortem level.

        Joe-dallas in reply to SHV. | March 9, 2021 at 10:24 am

        SHV – comment – . “A quick look at fentanyl pharmacodynamics shows that fentanyl is rapidly absorbed by oral mucosa so that peak serum levels occur about 20-30 minutes after exposure.”

        SHV – if that is correct, then that nails the timeline of death almost precisely.

        There was some indication in the comments above that the judge would not allow testimony to that effect, possibly from Milhouse . If anyone has some insight on allowing such testimony, then please comment

    BillyHW in reply to Milhouse. | March 9, 2021 at 2:42 pm

    Didn’t he die in hospital about an hour later?

Good article btw, very in depth which is great

Richard Aubrey | March 9, 2021 at 7:51 am

Milhouse. Good point on when/why and timing. Should be of some use, one way or another and propensity would, it seems, apply.

Couple of points, though. OD deaths occur with frightening frequency and it’s not been shown that any significant portion of them are the result of an emergency ingestion/shooting of everything in the cupboard for some tactical reason.

So the fact that he died doesn’t require it to be a tactical decision, but a matter of syncing his big hit with an encounter with the cops as an accident.

Okay. He’s an experienced drug user–which I suppose will be used to make the case he could never, ever, screw up the dosage. Except this time….? How about the other OD each day? Are they all beginners?

Earlier reports said he’d admitted he’d been “hooping”. That would have to be deliberate and not something you could conveniently do when you see the flashers in your mirror.

Lastly, if he died of an OD, what is the legal benefit to one side or the other of proving or disproving he slugged the stuff down when he saw the cops? He had the stuff in him. Timing matters because…?

    Brave Sir Robbin in reply to Richard Aubrey. | March 9, 2021 at 9:31 am

    Also, timing of overdose death could possibly be establish as a matter of toxicology, that is, how long would it take for ingestion of the amount of drugs found the body of the deceased to cause death. Therefore the information pertaining to the event a year earlier lacks probative value greater than its prejudicial effect.

    I understand why the defense wants it included, as well as the judge’s reluctance.

    However, this reluctance is a sign the judge is not shaping the legal battlefield in favor of the defense. I am not saying the exclusion is wrong, or right, I a just noting the effect.

    Milhouse in reply to Richard Aubrey. | March 9, 2021 at 11:14 am

    The timing matters because without it the coincidence of his happening to die just when the cop was restraining him seems unlikely.

    The motive matters, because otherwise the jury would be wondering why he chose just that moment to take the drugs. It seems unlikely that as you’re being arrested the one thing on your mind is to drug yourself. But this explains it, and shows that this is how he regularly reacts to being arrested.

    And yes, one can OD on a normal dose, but it’s much more likely if one takes much more than a normal dose. So telling the jury that his regular reaction to being arrested is to immediately ingest very large amounts of drugs, much more than he would normally take, makes the defense case that this caused his death much more likely.

      Brave Sir Robbin in reply to Milhouse. | March 9, 2021 at 12:59 pm

      “The timing matters because without it the coincidence of his happening to die just when the cop was restraining him seems unlikely.”

      I think the timing can likely be derived and introduced via expert testimony via the toxicology reports, so I do not think exclusion of the year earlier episode will be a dagger to the defense.

      I am not negating you point in the least. Admission would be preferable for the defense, for sure. I just think exclusion is surmountable.

    Judgement is one of the first things to go away when high (or when drunk, as many college students would testify). So making the poor decision to swallow his stash *while* he was already high makes tragic sense.

    He saw the cops coming, swallowed his stash, tried to ditch the counterfeit money by wadding it up and dropping it in his car, managed to drop some pills when he was loaded into the police vehicle, and OD’d right there on the ground. The only thing the cops could have done to save his life was induce vomiting the moment they first encountered him, but that would have been illegal.

      Brave Sir Robbin in reply to georgfelis. | March 9, 2021 at 1:19 pm

      I think it is likely the officers were trying save his life and following training and departmental directives.

      After review and consideration of the incident with time and evidence as revealed publicly, I certainly can detect no malicious or depraved intent.

      I hope justice prevails and is not derailed by politics or unreasoned passion.

NotSoFriendlyGrizzly | March 9, 2021 at 10:10 am

Does anyone else find it mildly amusing that 404(b) = evidence not found?

What I find amusing as a non-attorney is that we know from the defense presentation, undisputed by the prosecutor, that drug particles were found in the police vehicle and those particles had Mr. Floyd’s DNA on them. Additionally the exact same drugs were found inside Mr. Floyd’s vehicle. It seems to me the 2019 arrest where Mr. Floyd ingested drugs when taken into custody and needed hospitalization along with the video evidence (screen shots), drugs in the police cruiser (w/Floyd’s DNA) and drugs in Floyd’s vehicle there is a clear pattern of behavior. I don’t see why the judge seems to imply that if Chauvin “knew” this history it would be more likely to be admissible and without such knowledge, not so much. The jury should be made aware that Floyd had ingested drugs during a police contact in 2019 to prevent them from being discovered and that ingestion required medical intervention. The jury can then decide if they accept the screen shots, drugs w/DNA found in the police cruiser and drugs found in Floyd’s vehicle as evidence that Floyd just might have made a horrible decision that may have caused his untimely death. To me if this information is not given to the jury they will not have awareness of Floyd’s similar past behavior that resulted in medical intervention which the police had to facilitate and lacking this knowledge could result in an uninformed verdict.

Richard Aubrey | March 9, 2021 at 11:47 am

Milhouse. I have heard GF died in hospital. From my admittedly minimal but not zero experience with choking (judo/jiu jitsu) you don’t die of asphyxiation a quarter of an hour after said asphyxiation ceases.
So, if the hospital report is true, Chauvin can only have killed him by inflicting a trauma whose effect was delayed and no longer applied for however long the trip to the ER took and what time thereafter Chauvin lived. It would be strange if such a trauma were not visible to the ME. So Anybody know place of death and time from being picked up?

    WillS68 in reply to Richard Aubrey. | March 9, 2021 at 12:05 pm

    Mr. Floyd was declared dead approx 90 minutes after he was taken from the scene. One thing I’ve wondered is, if he was unresponsive and had no pulse, wouldn’t EMS have remained on the scene and called for the ME?

    https://www.google.com/amp/s/nypost.com/2020/05/28/george-floyd-showed-no-signs-of-life-en-route-to-hospital/amp/

      Char Char Binks in reply to WillS68. | March 9, 2021 at 12:26 pm

      Maybe the ambulance crew chose not to stay on the scene with a hostile crowd. Maybe a body removal crew would have met an even more hostile crowd, a la Ferguson.

      Maybe floyd was already dead on the stretcher, but wasn’t declared dead, because reasons.

        Brave Sir Robbin in reply to Char Char Binks. | March 9, 2021 at 1:10 pm

        In some places, only an MD can declare death. Perhaps there were other activities taking place in the ER distracting the attending from officially declaring death. It’s all speculation, but your point is taken and something the defense has hopefully investigated and considered.

          JusticeDelivered in reply to Brave Sir Robbin. | March 9, 2021 at 6:49 pm

          Early in my engineering career when I was designing early EEG amplifiers, the owner of a local EEG service would ask me to do EEGs on patients which were often badly dehydrated. It was much harder to get a decent signal with those patients. Those EEGs were used at that time to verify that the patient was brain dead.

          JusticeDelivered in reply to Brave Sir Robbin. | March 9, 2021 at 6:50 pm

          Vacuum tube amplifiers were common then, it was solid state which I was working on.

LeftWingLock | March 9, 2021 at 12:40 pm

I don’t see how ANY information about Mr. Floyd’s health or alleged prior drug use can be admitted. Such information would certainly be prejudicial to the prosecution’s case.

    paralegal in reply to LeftWingLock. | March 9, 2021 at 3:17 pm

    It goes directly to the question of causation. The first element of the homicide charges is that the defendant caused the death of the victim. So far, there is no evidence of that. However, there is evidence that Mr. Floyd caused his own death through the intentional ingestion of drugs. That is why it will absolutely be admitted.

      Char Char Binks in reply to paralegal. | March 9, 2021 at 4:38 pm

      Even if the knee caused floyd’s death, by itself, or in conjunction with other factors, that doesn’t mean Chauvin committed any crime.

      If a knee to the neck was a lawful subdual technique used in a lawful arrest/restraint, it’s not a crime. It would only be a crime if done recklessly or negligently, or if used in a deliberate attempt to harm floyd.

      The knee may have contributed to floyd’s death, along with meth, fentanyl, heart disease, Cuomovirus, and the rest of the subdual, but without criminal intent, or criminal recklessness/negligence, it was not a crime, but part of Chauvin doing his sworn duty as a police officer.

It’s easy to stay off a jury if that’s your preference. Just say

“Well, the cops wouldn’t have charged him if he didn’t do it, would they?”

“And yes, had it been a straight gun possession case I was planning to vote for acquittal, ignoring any evidence that the defendant had violated a purported law, because it is invalid, and thus the defendant could not have violated it. Judges tell jurors that they must decide only the facts, and accept the law as he tells it to them, but they are lying. Juries are judges of both the facts and the law, but it’s illegal for lawyers to inform juries of that fact, and if a juror shows evidence of knowing it he will be automatically dismissed, as I was. So someone who does know should keep that knowledge secret, unless he wants to be dismissed.

Are you unaware of FIJA?”

This flies in the face of the entire basis of our Republic. The people, through their elected representatives pass laws. If thee laws are unconstitutional, then a court should rule this is so. If a court does not do this and a large plurality, or a majority, of the people do not agree with the law, then they petition their representatives to rescind or change the law. You, as an individual do not have the authority to rule on the constitutionality of a law, even when part of a jury. To allow a single individual to substitute HIS version of justice for that of the greater population, by ignoring the letter of a law, leads to anarchy. And, it does not address the question of whether the law is constitutional, legal or improper, it only frees a single person who violated it.

But, you somehow have the notion that you have powers not vested in the rest of the populous. YOU can decide the constitutionality of a law, without oversight. Not even a judge can do that. But, you can. YOU can deceive the court in order to exercise this special right. But, society does not work that way.

As for a jury deciding on the whether a law is valid or invalid, on its face, this is only applicable if a court charges them with that duty. If a judge allows a defendant to argue that the law, which he is charged with violating, is unconstitutional, then a juror has the charge to consider that as a factor. If constitutionality is not presented, then the juror has no charged authority to decide that issue.

FIJA is as joke, started by a couple of long-time libertarian activists. It is essentially both ineffective and harmless, in the long run. While I find libertarian-ism an attractive concept, it is incompatible with a strong societal contract. When any group of people agree to live in close proximity to each other, they do not get to make up the rules of that association arbitrarily and on the fly. If you do not want to play the game by the agreed upon rles, then you don’t get to be on the playing field.

ugottabekiddinme | March 9, 2021 at 6:49 pm

I read the defense’s brief in opposition to the state’s petition to stay the trial, and thought it was well reasoned and argued.

The one clinker was using the word “criterium” a couple times, when the authors meant “criterion,” of which the plural is of course “criteria.”

A “criterium” is defined as a closed-circuit bicycle race.

Nobody’s perfect.

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