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Chauvin Trial Day 11 Update – State’s Desperate Moves Reveal Vulnerabilities In Prosecution of Chauvin

Chauvin Trial Day 11 Update – State’s Desperate Moves Reveal Vulnerabilities In Prosecution of Chauvin

Prosecutor Schlieter: “Authorized use of force a complete defense to all charges.”

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.

This is not our end-of-day wrap-up post, folks, that’s still to come later this evening, but there were some interesting arguments made in court before the jury was brought in that I thought worth sharing with you because they appear to indicate that the prosecution is beginning to panic about some profound weaknesses in this case.

The specific arguments I have in mind centered around the state’s upcoming use-of-force expert Professor Seth Stoughton. He’s long been scheduled to testify that based on national standards—not Minneapolis Police Department standards—that in his opinion Chauvin’s use of force was unreasonable.  This testimony was being allowed even though there is no evidence that Chauvin has ever been made aware of standards other than those imposed by Minneapolis Police Department.

Defense Counsel Nelson filed a motion that asked Judge Cahill to exclude Stoughton’s testimony entirely, on the grounds that it is cumulative in nature. That is, in court one is allowed to bring in a witness to argue a legal or factual point in court, but not an unlimited number of witnesses on the same point—to do so risks creating a fundamental unfairness in the proceedings.  So one witness on a given point, OK, two are OK, three or four being to feel sketchy on this issue, seven or eight start to feel over the top.

This has always been a concern of the defense, because the state had a witness list of some 400 people—no, I’m not kidding—most of whose testimony would necessarily be duplicative and cumulative.

Although Nelson raised these concerns with Judge Cahill early on, Stoughton was still permitted to be on the schedule as a use-of-force expert for the state.

Now, however, Nelson is arguing that this allowance should be reversed by the court, because of the manner in which the state has had so many prior witnesses already testify on these use-of-force policy issues.

For example, we’ve heard testimony on these issues from Police Chief Arradondo, from the Inspector in charge of training, from the Lieutenant in charge of training, from Lieutenant Zimmerman who was responding Lieutenant, from Sergeant Ploeger who was the responding sergeant, to the next Sergeant who took over at shift change—and now we’re going to have yet another speaker on the same issues.

The prosecution managed to convince the judge that Stoughton ought to be allowed, despite the cumulative nature of his testimony, because he comes at it from a different perspective than the other witnesses. They were police officers, discussing mostly MPD policies (although a couple did discuss the national case of Graham v. Connor in this context).  In contrast, Stoughton was an academic who would bring a purely national standards perspective.

The manner in which Prosecutor Schleiter framed this argument to Judge Cahill to continue to allow Stoughton’s testimony, however, strongly highlights a key reality in this trial that I raised in this morning’s blog post.

This morning I pointed out that it’s not enough to convict Chauvin on the merits of this case even if his restraint of Floyd was a contributing factor to Floyd’s death. It is also necessary that his use of force upon Floyd was wrongful, meaning not justified, meaning unreasonable under the totality of the circumstances.

In his argument to the judge today, Prosecutor Schleiter explicitly affirmed this challenge for the state, stating:

“The authorized use of force is a complete defense to all of the charges in this case. It is primary, front and center.”

In other words, the last weeks’s worth of medical testimony is entirely inadequate to convict Chauvin of any crime, no matter the extent to which it may have contributed to Floyd’s death, if that use of force was that of a reasonable officer under the totality of the circumstances.

And those circumstances include officers’ concerns about excited delirium, awareness that paramedics were arriving imminently, the fact that it had taken four officers to subdue the 6’ 6” 230-pound Floyd as he forcibly fought arrest, and the presence of the hostile crowd shouting threats of imminent physical violence sufficiently believable that even the arriving paramedics chose to do a “load and scoot” rather than attempt to save Floyd’s life on scene, and where members of the crowd were being held back by others from advancing on the officers—including the state’s own MMA “expert” Williams who is visible at the scene wearing a Northside Boxing Club sweatshirt, shouting threats of imminent violence, and with a rather deranged expression on his face (as visible in our featured picture).

If the state can’t overcome that challenge, and do so beyond any reasonable doubt, they cannot gain a conviction on the legal merits of this case.

And that prospect is scaring the heck out of them.

Also of huge concern to the state is the interpretation of Floyd’s in custody statement that (the defense argues) “I ate too much drugs.” The state argues Floyd actually said, “I don’t take no drugs.”

Suddenly, just this past Friday evening, the state prosecutors dumped at Nelson’s office a just-created report by Stoughton that purports to provide some in-depth analysis of Floyd’s speech, including exhibits with slowed down video, subtitles and so forth.

The sudden creation of this report and exhibits tells you exactly how much the “I ate too much drugs” interpretation of Floyd’s words—by THEIR OWN WITNESSES—scared the prosecution.

There was more of interest in this argument over Stoughton, but time doesn’t permit me to dig into all of it. In lieu of that level of detail from me in the moment, here’s the video of the relevant argument, for your viewing pleasure.

Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial can access the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including PandoraiHeartSpotifyApple PodcastGoogle Podcastsimple RSS feed, and more.

And thanks, as always, to both Legal Insurrection and CCW Safe for the support that makes my coverage of this case possible.

Until next time, 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. He wrote the first edition of the “Law of Self Defense” in 1997, which you can now order in its current edition for just the price of shipping and handling by clicking here.  To know YOUR state’s use-of-force laws in an actionable way that will keep you safer physically and legally, take our state-specific advanced use of force class either streamed online or via a shipped DVD with a 100% no-question- asked money-back guarantee, here:  Law of Self Defense State Specific Use-Of-Force Class.

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

 

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Comments

“If the state can’t overcome that challenge, and do so beyond any reasonable doubt, they cannot gain a conviction on the legal merits of this case.”

Not to disagree with Andrew’s analysis, but I have the sinking feeling this case will NOT be determined on the legal merits. If the jury comes to feel it is their job to prevent more riots and/or if they are terrified for their physical safety after the trial is over they may vote to convict, evidence and law be damned.

    I tend to agree the jury may be influenced by stuff going on outside the court room and the possibility of street violence if there is not a verdict those outside the court room are unhappy with.

    I would like some lawyers to comment on how this would affect any appeal and how the judge not granting a change of venue looks in hindsight.

      JamesAltLeft in reply to ragebot. | April 12, 2021 at 5:18 pm

      I think the most the state can hope for at this point is Manslaughter. It seems very unlikely that M2 amd M3 are gonna get a conviction.

    JamesAltLeft in reply to Recovering Lutheran. | April 12, 2021 at 5:20 pm

    That might be the only way they can score a conviction. But at the same time I think the best they can hope for is a manslaughter charge. There’s just too much doubt when it comes to the murder charges and such.

    “If the state can’t overcome that challenge, and do so beyond any reasonable doubt, they cannot gain a conviction on the legal merits of this case.”

    Once again, this is why I think the defense must take their shots at having the judge decide this trial. Aside from the attorneys in the court room, he is the only other person who absolutely understands the above statement, and who, I hope, by the end of either the prosecution’s or the defense’s case will understand that the state has failed to “overcome that challenge.” (Such an act by the judge will also save the jurors from the obvious perils that await them.)

      randian in reply to DaveGinOly. | April 13, 2021 at 1:07 am

      Why would Nelson want this judge to decide the case? The judge clearly wants a conviction. His actions during voir dire, and refusal to allow a change of venue or order additional security for the jurors, suggests he wants intimidation to work its effect on the jury.

    That’s why the trial should have been moved.
    If they convict it is grounds for appeal.
    Alan Deshowitz said the same “should have been moved to a rural county where people would not be afraid of retaliation after the verdict.

    Jury nullification is a two-way street.

I don’t believe the “legal merits” of the case will make it inside the jury room.

There is heavy pressure on the jury and the people testifying to shade the evidence to come up with a guilty plea. I think the best Chauvin can hope for is a hung jury, given the false media narrative that has been broadcast from the beginning of this ordeal. If he gets sent to prison, he probably won’t make it out alive. I bet he regrets the day he became a cop.

    lurker9876 in reply to Ghost Rider. | April 12, 2021 at 5:54 pm

    Much like the election fraud 2020. Half of the American population, at least, believe in the massive election fraud but the Biden half, including the stupid Liz Cheney, believed in the “integrity of the election”.

    GR,

    By federal law, former peace officers must be kept in segregated population just for that reason. They will not make it out alive. I’m a cop in Texas, and our prison system has a wing just for former POs. But your right, they are hoping for a hung jury. Or, assume a conviction, jury candidates stated they were scared to serve because they didn’t want to be doxed and their kids attacked. The defense gets one jury to say that, there is the appeal for a new trial.

Legal merits got nothing to do with this.

I don’t think the prosecution should have fought so hard to put Stoughton on the stand. He is not believable at all and I expect he will be demolished on cross.

He doesn’t think Floyd was ever aggressive and the the use of force was improper from the moment he was put on the ground. I guess officers are supposed to just allow themselves to be kicked in the face. Okay.

The audio either says:

1. “I ate too many drugs!”

or

2. “I ain’t do any drugs!”

When I listen to it on slo-mo, I definitely hear the “m” on “many”.

    fogflyer in reply to BillyHW. | April 12, 2021 at 5:38 pm

    I listened to it slowly with headphones when it first came out. I can’t guarantee what was said, but it sounds a lot more like “I ate too many drugs” than “I ain’t do no drugs” to me.

    I didn’t spend much time on it as it doesn’t seem overly important. If anything, I think the prosecution’s version actually helps the defense more as it shows Floyd was still continuing to lie.

      Because of the double negative, “I ain’t do no drugs” is almost as damaging to the prosecution as “I ate too many drugs”.

    foospro86 in reply to BillyHW. | April 12, 2021 at 7:01 pm

    Interestingly, State witness Reyerson didn’t claim it was “I ain’t do any drugs!” the second time. He claimed Floyd said “I ain’t do no drugs!” But it’s pretty clear the word was either “many” or “any.”

    Looks like Officer Thau’s or Chauvin’s BWC will have the best audio for what Floyd really said at that moment. Hopefully defense will look it up.

      Perry Procedure in reply to foospro86. | April 12, 2021 at 10:08 pm

      Didn’t Chauvin’s BWC detach and fall underneath the squad car at the start, during close contact with Floyd? Thus, during the entire time that Floyd was on the ground, Chauvin was without BWC.

    duchessofaustin in reply to BillyHW. | April 12, 2021 at 9:28 pm

    George Floyd was as ghetto as you can get and if he was trying to deny doing drugs he would *never* have said “any.” It wouldn’t be in his working vocabulary.

    I’m pretty sure he said “I ate too many drugs.” It’s far more likely because I’m sure he felt that overdose coming on.

    Char Char Binks in reply to BillyHW. | April 12, 2021 at 10:10 pm

    AAH! AAH! I ATE TOO MANY
    EGGS!

    Keith_ in reply to BillyHW. | April 12, 2021 at 11:25 pm

    To me it sounded like “I ate too many drugs” also. Logically the “I ain’t do any drugs” doesn’t make sense because we do not hear cops ask “did you take drugs” while he is on the ground. I believe GF knew that he was overdosing as he experienced the same sensations before when he was rushed to hospital. This was GF realizing that he was about to die as a result of his own actions.

    Think38 in reply to BillyHW. | April 13, 2021 at 12:45 am

    Either version is rather damaging to Floyd.

    Version #1 is an admission that he took drugs, and supports the notion that he OD.

    Version #2 is also really bad. It’s a denial of a fact that is objectively true — he took too many drugs. The toxicology report shows he took enough fentanyl to kill him (whether or not it did kill him). If you believe this, then it’s saying “my client is a liar” and the police would be justified in not believing the statements of known liar.

Let me make sure I understand. The State can have its witness, Professor Stoughton, GENERATE new evidence (his report) and provide it TO THE DEFENSE after the trial is two weeks along? Now, I’m no lawyer but I thought all evidence had to actually be provided to the defense prior to the start of the trial.

Also of huge concern to the state is the interpretation of Floyd’s in custody statement that (the defense argues) “I ate too much drugs.” The state argues Floyd actually said, “I don’t take no drugs.”

Why is what Floyd said relevant? He either ingested drugs, or he did not. He either told the truth about ingesting drugs, or he did not. The latter has no bearing on the former. Indeed, if Floyd lied to the officers about taking drugs, that would suggest that he was not under the influence and that intoxication was not a factor for which they had to account during their actions. (Obviously, the officers’ observations of Floyd led them to believe he was intoxicated, but the idea that Floyd told them he was not intoxicated is not favorable to the prosecution because it adds a complication to the officers at the scene – could they believe their eyes and experience, or should they believe what Floyd told them?)

The toxicology report says Floyd was intoxicated. Floyd’s denial (if that’s what he did) was a lie that only had the potential to make his situation worse (because he misinformed the officers of his actual physical state).

And the fact that the state brought Dr. Rich to the stand is a desperate move as well. Dr. Rich did not help the state. But who knows what the jury is thinking.

    susiejoe in reply to lurker9876. | April 12, 2021 at 11:02 pm

    My daughter is asthmatic. Years ago when she was young, going to public school was a major problem as they would not allow students to carry any medication. For an asthmatic, we are talking about their inhalers they use for attacks. Those inhalers had to be held by the school nurse. Now for an asthmatic, they will feel the attack coming on before they begin experiencing the difficulty breathing. That is when they are taught to grab their inhaler so to stop the progression of the attack. Continually, my daughter would approach her teacher and tell her of her need to go to the nurse. Continually the teacher, different ones, would respond that she appeared just fine and deny her leaving class. She would then experience the full blown asthmatic attack and at that point when she couldn’t breath normally, the teacher would allow her to go to the nurse. Problem was, the nurse could be on the other side of the building and she could hardly run due to her breathing difficulties.

    We were not alone in this problem. I ended up putting my daughter in private school where she was permitted to carry her inhaler on her person.

    I know that Chauvin’s seemingly indifference is actually the response most of us would have.

      Char Char Binks in reply to susiejoe. | April 13, 2021 at 12:08 am

      Public schools are the worst. I hope all public school teachers and administrators die slowly and painfully from Cuomovirus.

Seth Stoughton was a cheerleader in South Florida in high school.
He became a cop then wrote “There is a warrior problem in police forces.”
He likes to go into places he does not belong then attack them.
Guy is a kook!

So who wants to place odds than several jurors are going home this weekend to have a family member kneel on their neck while prostrate for 9 minutes?

    fogflyer in reply to Dude. | April 12, 2021 at 10:09 pm

    Lord, I hope so!
    I have been saying since this started that I will gladly volunteer to let a 140 pound guy try and render me unconscious with his knees, especially without leaving any bruises. Good luck! I am still fantasizing for this type of demonstration in court for the defense!

Chauvin’s problem is that compliance with the MPD’s policy relative to prostrated neck restraint does not automatically make the restraint, or its duration, reasonable under the totality of the circumstances, especially after no pulse could be detected. If his heart has stopped, what material risk does Floyd pose to the police, himself or others? Turn him over and give him CPR. At that point, the officers knew that Floyd’s pleas was not a false alarm. I could see the omission of basic life saving measures so inflame the jury that they overlook the burden of proof relative to the causation issues.

    fogflyer in reply to Dude. | April 12, 2021 at 10:12 pm

    I think they didn’t start CPR because they knew the paramedics would be there any second (they took much longer than usual) and they were still concerned about the crowd. Remember, it was actually only a hair over two minutes from when Floyd appeared to go unconscious until the ambulance arrived.

    Barry in reply to Dude. | April 13, 2021 at 2:00 am

    Dudes a dope.

If he ate drugs in the car, you would think they should be in his stomach. Autopsy says something like, only bread like food particles and dark fluid in his stomach, no other details.

I’d hope the defense has had a deep forensic analysis of the photos showing Chauvin’s knee placement as it was very difficult to make out online. If his knee can be definitively shown not to just be on his neck but across his shoulders I would think this would have an even greater impact with the jury.

    Char Char Binks in reply to SteveW. | April 12, 2021 at 10:16 pm

    People SAW Chauvin with his hand in his pocket, and Floyd’s urine on the pavement, and both turned out to be illusions.

he spit two pills into the back seat of the squad car ( DNA evidence matching his), the stomach may gave dissolved whatever other pills he took. they don’t pump out the stomach contents right after death. You also have the issue of “Hooping”, which is taking the drugs through the rectum. We do know that it had been some peiod of time since he took the fentanyl based on the toxicology report. The autopsy was started 12 hours after the official time of death. He had 5.6 ng of norfentanyl in his system, that is the amount that has metabolitized in the system

I would hope that Nelson tries to get Stoughton to provide the evidence he has that Chauvin had knowledge of, and training in, these national standards of which he will testify. Just testifying that these are the national standards for police use of force doesn’t mean diddly if he can’t show that the defendant was trained in those standards and knowingly and willfully ignored the standards and used excessive force.

Why the judge allowed this BS testimony is beyond me.

Today’s decision not to sequester may prove reversible error, if he’s convicted. Looking forward to see the defense, but not the end result, no matter what. It will further divide.

Chris Rock’s video is truth. https://www.youtube.com/watch?v=uj0mtxXEGE8

If it’s as bad as they say, why make it more likely?

At about 5:20 the prosecution argues to the judge that even if Chauvin followed MPD policies, he could still be convicted of violating the law if those policies are not reasonable.

But Mr. Branca says that elsewhere, they argued to the judge that following procedure is a complete defense to all the charges.

Which is it? The prosecution should not be able to have it both ways, to switch this way and then that way, to get this witness on the stand. This point seems eminently appealable. The credibility of the same thing is growing and growing with this cumulative testimony.

I doubt the judge will be granting many defense motions so they’re just for the record. The jury may not be swayed by the violent rhetoric and threat of living in Mpls. in the event the threatening crowd isn’t happy with the verdict because they’re not even supposed to be aware, but the judge is not assumed to be ignoring the news.

It seems impossible to prove that Floyd didn’t die from a fentanyl overdose with 3 times the fatal dose in his bloodstream.

I continue to hesitate on the manslaughter charge. I am not utterly persuaded that Chauvin should have realized once Floyd was out that he needed to change course, but I think that that argument is valid. Still, I have sympathy for Chauvin because I think the two murder charges are so unfair. Also, as time goes on, I find my appreciation for Nelson’s work growing steadily; he is putting on a sort of marathon, outnumbered and yet composed and pertinent. Not that I’m an experienced trial watcher.

Does anyone know how jury members get to court? Do they drive in on their own? Are they picked up by officers of the court? Is it obvious to all their neighbors what they’re doing?

Char Char Binks | April 16, 2021 at 9:45 am

All the state needs to say is that the force wasn’t authorized, that it was a factor, however slight, in floyd’s death, and the jury can pretend to believe them.

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