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Chauvin Trial Day 13 Wrap-Up: Solid Day for Defense With Forensic Expert Witness

Chauvin Trial Day 13 Wrap-Up: Solid Day for Defense With Forensic Expert Witness

Blackwell scored no major points, hit with “My Cousin Vinny”-style response

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.

Overview

Today saw the testimony of only one witness, but it was a witness of great importance to the defense, and therefore one whose testimony the state would perceive as important to damage.

This was the defense medical expert witness Dr. David Fowler, a retired forensic pathologist.

To not bury the lead, Dr. Fowler did what the defense needed done today, and did it well. That’s not to say his performance was perfect—he took a few hits off Prosecutor Jerry Blackwell during cross-examination, and could have done better deflecting some of those attacks.

At the same time, however, Blackwell’s rather over the top cross-examination of Fowler was initially too aggressive for Judge Cahill’s liking, resulting in a rapid sidebar and a more restrained Blackwell moments later, and Blackwell’s resort to snark led him to overreach several times, providing opportunities for defense counter-attack that defense counsel Eric Nelson did not pass up.

So, overall, a good day for the defense today, when they very much needed one, especially after the weak performance of defense expert witness Barry Brodd yesterday.

I’ll dive into the testimony of Dr. Fowler in some detail in a moment, but first let me touch upon a couple of housekeeping matters that were addressed this morning prior to the jury being brought into the court room.

First, the defense finally made its motion for acquittal, the prosecution argued against that motion, and Judge Cahill denied the motion. This was all entirely predictable.

The legal standard for acquittal that Cahill was obliged to apply was to assume that everything the state claimed was 100% true, and then decide if a reasonable jury could possible arrive at guilty verdict under those circumstances.

Unless the prosecution is entirely inept—and this one is not—or the evidence was unambiguously lacking on a required element of a charged crime—and the prosecution made sure that wasn’t allowed to occur—there is always at least some evidence for a jury to consider.

Once that’s the case, and we are required to view that evidence not impartially but in the light most favorable to the prosecution, a guilty verdict is always at least theoretically possible.

So, that took care for the motion for acquittal, as expected.

The next housekeeping involved Morries Hall, the male passenger in Floyd’s Mercedes SUV at the time of his in-custody death on May 25, 2020, who is also reported to be a drug dealer and who is currently in jail with his own legal challenges.

The defense had originally planned to call Hall as a witness in this case, focused particularly on Floyd’s drug use and intoxicated behavior when officers first approached the Mercedes SUV.

Hall eventually realized, however, that he was potentially on the hook for third-degree murder over Floyd’s apparent drug overdose death, and through his public defender he informed the court that if called to testify he would plead the Fifth Amendment.

There were various arguments made at various times about the extent to which it might be possible to have the defense subpoena Hall into this trial to testify, but in the end that was all resolved this morning.

Hall asserted a blanket 5th Amendment privilege to any and all questions he might be asked having anything to do with George Floyd on May 25, 2020, Judge Cahill acknowledged that privilege, and thus expired any hope the defense might have had to get Hall on the witness stand.

Frankly, I’m not sure it really matters that much. Given the toxicology results showing fentanyl and meth in Floyd’s system, the pills coated in Floyd’s saliva found in the patrol car, the testimony of the Cup Foods clerk that Floyd appeared “high,” and the testimony of female SUV passenger and Floyd ex-girlfriend Shawanda Hill of Floyd apparently succumbing to a fentanyl overdose while in the vehicle, I’m not sure how much more Morries Hall would have added to an unambiguous narrative of Floyd being intoxicated.

In any case, that took care any questions over Hall’s assertion of his 5th Amendment privilege and whether he would testify in the Chauvin trial—he would not.

Defense Expert Witness Dr. David Fowler, Forensic Pathologist

As already noted above, Dr. Fowler was a very solid expert witness for the defense today, and generally presented as extremely experienced and competent.  His South African accent probably didn’t hurt, either. Despite the accent, Fowler had worked as a forensic pathologist for a couple of decades, primarily in various senior medical examiner-type roles for the state of Maryland.

Before we dive in further, recall that the prosecution really has to prove two distinct arguments in order to win a conviction on the legal merits in this case.

First, they have to prove beyond a reasonable doubt that Chauvin’s conduct was a substantial contributing factor in Floyd’s death.

That alone, however, is not enough. They must also prove beyond a reasonable doubt that Chauvin’s use of force was not legally justified.  A justified use of force that even directly caused Floyd’s death would not be criminal conduct.

Yesterday’s testimony by defense use-of-force expert witness Barry Brodd was intended to establish reasonable doubt on the justified use of force question, and that didn’t go particularly well, as we noted here:  Chauvin Trial Day 12 Wrap-Up: Defense Use-of-Force Expert Witness Falls Short

Today’s testimony by Dr. Fowler was intended to establish reasonable doubt that Chauvin’s conduct was a substantial contributor to Floyd’s death. As noted, Fowler did a reasonably good job today. Whether it was sufficient to the needs of the defense, ultimately only the jury can decide.

Fowler Direct Questioning

As is always the case with expert witnesses on direct, the first 20 minutes or so were spent by defense counsel Eric Nelson stepping through Fowler’s education, experience, publications, professional associations, and all the other facets of his career that imbue him with the necessary authority and credibility to serve effectively as an expert witness.

One interesting facet of Fowler’s testimony is that although currently retired from his full-time jobs, he apparently consults for a private enterprise panel of various medical experts.  My sense was that this was in effect a business designed to provide high-end scientific consultancy to the legal community.

This arrangement also allows any single member of the business to involve others with distinct scientific expertise to inform their own scientific analysis, providing a much broader base of scientific expertise than any individual was likely to possess.

Now with the defense presenting its case in chief, the mission for defense counsel Nelson is to establish reasonable doubt on either of those arguments.  That is, establish either a reasonable doubt that Chauvin’s use of force was unlawful, or establish a reasonable doubt that Chauvin’s conduct was a substantial contributor to Floyd’s death.

As one should expect from a retained expert witness, Dr. Fowler was prepared to say the magic words that the defense needed said, in the context of having formed an opinion, to a reasonable degree of professional certainty, as to the cause and manner of George Floyd’s death.

And that opinion is:

George Floyd had a sudden cardiac arrythmia due to atherosclerotic and hypertensive heart disease, during his restraint by the police.

Contributory conditions that led to this fatal outcome included Floyd’s existing heart disease (substantial coronary artery occlusion, and pathological hypertension resulting in an enlarged heart), fentanyl and methamphetamine toxicity, an existing paraganglioma, and another factor mentioned for the first time today, exposure to carbon monoxide from the exhaust of squad car 320.

In his direct questioning of Fowler defense counsel, Eric Nelson touched upon a broad array of issues where the prosecution during its case in chief had raised apparent vulnerabilities for the defense.

For example, the state had made frequent reference to the death certificate citing the manner of death as having been “homicide.”

Most of us will recognize that the use of the word “homicide” on a death certificate has solely medical consequences and is not a legal finding of any sort.  Indeed, even in a legal context a homicide is not always a crime.

There is always the risk, however, that a jury will apply the lawman’s meaning of “homicide” to mean “unlawful killing,” and Nelson took steps to address this.

First, he reminded the jury of the medical versus legal application of homicide with respect to the death certificate. He also had Dr. Fowler step through the various components of a death certificate to clarify where an actual cause of death was being asserted, and by what means.

Nelson also had Fowler step through the five options for manner of death—homicide, suicide, accident, natural, and undetermined—to which he would circle back later.

The real take home message in all of this was that Fowler agreed that low oxygen played an important role in Floyd’s death—but it was the manner in which that low oxygen state was achieved that made the difference in this case.

More specifically, the state was essentially arguing that it was the subdual restraint by the officers upon Floyd that induced positional asphyxia, a low oxygen state, and a consequent fatal arrhythmia in Floyd’s heart.

Fowler’s view, however, was that it was not a profound low oxygen state induced by the police via subdual restraint and positional asphyxia that caused Floyd’s heart to stop, but rather that it was Floyd’s exceptionally fragile physiological condition—a condition unknowable to the arresting officers—that made his heart exceptionally vulnerable to even the modest shortfall in oxygen caused by Floyd’s decision to fight arrest, resulting in the cardiac arrest.

According to the defense narrative it was, in effect, Floyd’s own physiological fragility that killed him when he chose to subject himself to the justified use of force by police officers compelling his compliance with lawful arrest, including his forcible 10-minute struggle with multiple police officers and subsequent restraint.

This fragile physiological condition was the result, again, of Floyd’s severe coronary artery occlusion, his pathological hypertension resulting in an enlarged heart, his life-long abuse of fentanyl and methamphetamine, not to mention smoking both marijuana and cigarettes, his paraganglioma tumor, and even his acute exposure to carbon monoxide while being restrained by police.

As one might expect, Nelson had Fowler step through the various facets of this narrative of Floyd’s “death by fragile physiology” in considerable detail, touching upon every major component of that narrative in a well-informed and expert manner, delivered in a tone of quiet competence.

This was a sharp contrast from the expert witness testimony of use-of-force expert Barry Brodd, whose narrative on defense was rather scattershot, not at all as comprehensive as the defense needed it to be and left many points of vulnerability for attack by the prosecution on cross-examination.

Again, I’m not sure how much of that mess was the fault of Brodd and how much of Nelson, but I am sure that it is Chauvin who is on the hook for that misstep, either way.

I won’t touch upon every single facet of Fowler’s scientific testimony in the detail given at trial—I’ve provided the videos of this testimony below for that level of detail.

Here I’ll just note that Nelson had Fowler explain why Floyd could have died of a cardiac arrest even in the absence of apparent damage to heart cell; how a sudden arrhythmia would have resulted in a low oxygen condition; how Floyd’s enlarged heart induced by his pathological hypertension would have made him particularly vulnerable to even a modest drop-off of oxygen and other resources; how Floyd’s profound coronary artery occlusion made him even more vulnerable in this manner; how Floyd’s heart disease primed him for a fatal arrhythmia; and perhaps an abrupt release of adrenaline from Floyd’s paraganglioma found in his lower abdomen.

All of this fragile physiology was further primed for catastrophic failure by various environmental factors, including Floyd’s fentanyl toxicity, which reduced respiration and thus desperately needed oxygen; Floyd’s methamphetamine use, which increased the heart’s demand for resources even as it reduced his body’s ability to deliver those resources, as well as fostering failure of Floyd’s biological “pacemaker” that prevents fatal arrhythmia; the adrenaline released by the “fight or flight” response triggered by Floyd’s decision to physically resist arrest; and perhaps even acute exposure to carbon monoxide being exhausted from squad car 320, whose exhaust pipe was only about a foot or so from Floyd’s face, which would have bound up a substantial portion of Floyd’s hemoglobin and further reduced his oxygen-carrying capacity.

Nelson also had Fowler address the lack of any indication of physical injury, not even bruising much less broken bones or cervical damage, to Floyd’s neck and back, when in Fowler’s lengthy experience in working with such cases signs of injury were common.  Nelson also took the same approach to the state’s arguments that it was pressure on Floyd’s hypopharynx that caused his death—Fowler had never seen that occur and found no reference in the literature to it having ever occurred, as a result of external pressure (as opposed to some ingested obstruction, such as a chunk of food, or an internal tumor).

Nelson also had Fowler speak authoritatively with respect to a number of studies of positional asphyxia that substantially undermined the state narrative that this was a clearly deadly restraint procedure that any reasonable officer should have known created a lethal danger to a suspect.

Indeed, the studies indicated that even lengthy periods of subdual prone restraint while subject to weights of as much as 225 pounds showed little tendency to induce hypoxia in otherwise healthy subjects.

As we’ll see, this part of Fowler’s direct testimony would prove particularly offensive to the state, as revealed during cross-examination.

Obviously, all of this presents quite a different image of Floyd’s death than the “blood choke” described by MMA “expert” Donald Williams, the external or internal respiratory choke claimed by another state witness, the forcible compression of Floyd’s respiratory physiology claimed by still others, or any of the other state narratives of how the conduct of Chauvin or the other officers was a substantial, rather than lawful and incidental, contributor to Floyd’s death.

In short, as one should expect, there was little drama in the direct questioning of Dr. Fowler, which you can view here:

Fowler Cross-Examination

The cross-examination of Dr. Fowler was conducted by Prosecutor Jerry Blackwell, whose performance here is perhaps best described as contemptuous, argumentative, full of snark, and misleading to the point of arguably qualifying as propagating outright false narratives to the jury.

Before I go on, I do feel obliged to note that as negative as that description of Blackwell’s performance is, that does not mean that it was ineffective. Many prosecutors intentionally adopt such aggressive cross-examination precisely because it works.

It can throw the witness off-balance and badger the witness into passively acceding to the angry attorney’s portrayal of the testimony, if only to make getting off the witness stand come sooner than might otherwise be the case.

Please, just make it stop! I’m afraid we saw a bit of this yesterday during Prosecutor Schleicher’s equally aggressive cross-examination of defense use-of-force expert witness Barry Brodd.

And, it must be said, there was a bit of that reaction from Fowler, as well.  When I write that Fowler did a solid job, but not a perfect job, I’m referring to those portions of his cross-examination where he appeared off-balance and malleable to the pressures being applied Blackwell.

Blackwell began his cross-examination on fire, with contempt dripping from his voice, and engaging Fowler in a manner that to this small-town attorney was outrageously disrespectful and argumentative.

This aggressive approach to Fowler began with a line of questions that superficially asked Fowler how an expert should reasonably approach a case, but which were obviously intended to suggest to the jury that Fowler had approached the case in an entirely unreasonable manner.

You would agree that an expert witness should be objective?  Yes. Fair? Yes. Impartial? Yes. You agree that you should be thorough? Yes. In order words, that you should do your [damned!] homework before coming into court? Yes. [AFB: Emphasis added.]

An expert shouldn’t jump to conclusions? Yes. Shouldn’t connect facts in a way that’s biased? Yes. Shouldn’t cherry pick facts? Yes. Shouldn’t intentionally confuse the jury? Yes.

I was about ready for Blackwell to ask Fowler to agree that an expert witness in a trial shouldn’t fornicate with barn animals.

By this point, however, Judge Cahill, who has rigidly enforced at least nominal signs of respect among the parties and towards witnesses while in his court room, had had enough of Blackwell’s argumentative conduct.  He called a brief sidebar, and it was a somewhat subdued Blackwell who returned to continue his cross-examination of Fowler.

If the contempt had been ratcheted down, however, Blackwell cranked the snark knob up to 11.

He was particularly offended by the sudden references by the defense to the possibility that carbon monoxide from squad 320’s exhaust was a contributing factor in Floyd’s death. Frankly, I’m not sure why the state would be surprised by this angle, as it was covered in Fowler’s expert report delivered and shared with the prosecution way back in February.

Blackwell asked if it was true that there was nothing about CO in the autopsy report? Well, everyone knew that, because medical examiner Baker hadn’t considered the issue during autopsy.

All these EPA and CDC and California car exhaust studies and regulations about carbon monoxide that you cite here in court—you’ve never actually been an industrial hygienist, have you, Dr. Fowler?  He had not ever been, and frankly I’m not at all sure that Blackwell didn’t just make that job title up out of thin air.

Can you tell the jury exactly what level of CO Floyd had in his system when he died? Well, naturally not, because the state of Minnesota had never bothered to look.

Blackwell also began to start tripping himself up in his cross of Fowler.

Do you even know if the squad car was running?  There were indications it was running, such as moisture dripping from the exhaust.  So ,you just assumed it was running? (I mean, we all know that if you assume, you make an “ass” out of “u” and “me,” right?). No, answered Fowler, I didn’t assume anything. I made an inference from the evidence.

Ouch.

Have you ever even seen this squad car in real life?  Well, no, answered Fowler.

Sensing the possibility of a kill shot here, Blackwell jumped.  Unfortunately for Blackwell, it was his turn to do the “step on the rake” routine.

Do you even know the make and model of this vehicle, he asked in a voice of outrage, certain that Fowler would not know, and would therefore have profoundly undercut his credibility.

Yes, answered Fowler—it was a Ford Explorer, Police Interceptor Model.

Well, fine, but do you even know what exhaust arrangement that vehicle has?  Again, in a tone of moral outrage, and with the confidence that Fowler would know nothing of the sort.

I do, answered Fowler—it has a four-pipe exhaust arrangement, with two exhaust pipes at each side of the rear of the vehicle.

Double-ouch.   I mean, man, that’s right out of the movie “My Cousin Vinny” (by the way, the best legal movie ever made, in my humble opinion).

Blackwell stepped back to asking Fowler for data he knew very well the consulting pathologist wouldn’t have.

Do you have actual data on the carbon monoxide levels in Floyd’s breathing zone while he was in subdual restraint and neck compression?  Of course not, nobody knows, it was never measured.

Incidentally, Blackwell worked hard to repeat the phrases “subdual restraint and neck compression” and “9 minutes and 29 seconds” as frequently as possible during his cross-examination of Fowler. Apparently, these are his equivalent of Johnnie Cochrane’s “if the glove don’t fit, you must acquit” during the 1995 double-murder trial of OJ Simpson.

You might LOL at that, but in fact such repetition is a proven method of persuasion.

In any case, I recommend you prepare yourself to hear those phrases repeated frequently during closing arguments, assuming Blackwell participates in closing arguments—and I’d be shocked if he did not, given the racial overtones to this trial.

Blackwell’s asking for data or findings he knew very well did not exist, and which Fowler had never claimed to exist, was a common theme throughout his cross-examination of the pathologist.

Agree that Dr. Baker, the medical examiner, found no evidence of carbon dioxide poisoning as a cause of Floyd’s death? Well, first of all Fowler didn’t claim CO poisoning as a substantial cause of death, but merely another among many complicating factors that may have contributed to Floyd’s death.  Second, Baker didn’t report any CO findings, because he never looked, which is a different matter than CO not playing a possible role.

Blackwell also asked a great many questions that appeared intended to cast doubt as to whether Floyd had self-ingested fentanyl/meth tablets when approached by police.

During direct by Nelson, Dr. Fowler had been asked if he’d spotted a small white object in still photos of Floyd as he was held at gunpoint by Officer Lane while still in the driver’s seat of his SUV.  Fowler did make such an identification.

Now Blackwell showed a short video from inside Cup Foods of Floyd holding a banana. Can’t you see him chewing food in that video?  Fowler agreed that Floyd’s mouth was moving in a chewing type manner, but I don’t know why, I personally didn’t see anything of the sort.  What I did see was Floyd staggering visibly, but that went unmentioned in court today.

How could you possibly know the white object in Floyd’s mouth while seated in the car wasn’t food, rather than a pill.

Well, answered Fowler, I never said it was a pill. I merely said it was a white substance, and that was quite intentional.

Indeed, the only person to explicitly label the white object a pill was Blackwell himself, another misstep on his part.

Another consistent behavior by Blackwell was to preface his snarky questions with the phrase, “In order to avoid confusing the jury, …”. I saw a number of comments in today’s live post asking why he kept repeating this phrase.

The reason is that he likely believed it would gain him more freedom of action in asking questions that the court might otherwise find objectionable.  This is because the reason expert witnesses are allowed to testify about their opinions, which normal fact witnesses are not allowed to do, is because the expert’s role in the trial is to help the jury understand issues that would not be understood but for the expert’s opinion.

That is, to help the jury avoid confusion.

So, if Blackwell could cloak his snarky question as being intended to meet that core purpose of an expert witness, by prefacing it as being asked in the interests of avoiding confusion of the jury, perhaps Cahill would be more inclined to let the question go.

It’s much akin to the scene in the original Star Wars movie where Obi Wan Kenobi waves a hand slightly in front of two Mos Eisley stormtroopers and informs them that these are not the droids they are looking for.

Yet another rhetorical trick used by Blackwell was to purport to impeach Dr. Fowler’s direct testimony by reading extensively from various textbooks, studies, and even an old affidavit from a prominent scientist on the subject of positional asphyxiation, and from a deposition of Dr. Fowler himself from an unrelated legal proceeding.

I have a couple of observations on this “trick” by Blackwell. First, to my mind Blackwell’s conduct here grossly exceeded reasonable attempts to impeach Fowler, and actually began Blackwell himself offering testimony in front of the jury. And that is not supposed to be allowed.

Second, nearly every instance this “trick” came back to bite Blackwell on the buttocks. Why? Because on re-direct of Dr. Fowler by Nelson it was revealed that Blackwell had read selected portions out of context, mischaracterized other readings, and sometimes skipped portions that, when read aloud by Nelson, effectively reversed the meaning claimed by Blackwell when read by him on cross.

For example, on direct Fowler had testified that a noted scientist who had been very prominent about the dangers of positional asphyxia had ultimately retracted his concerns after conducting a variety of clinical studies on the subject.

On cross-examination, Blackwell read from an affidavit of that same scientist, in which he stated that he remained concerned about positional asphyxiation.  Proof that Fowler was wrong, or untruthful, about the claimed retraction of concern?

Not so much.  On re-direct by Nelson it turned out that Blackwell had skipped some important content in the affidavit—the positional asphyxia that the scientist remained concerned about was not general in nature, but applied only to suspects who were obese or who suffered from congestive heart failure.

Well, Floyd was not obese, and the officers had no reason to infer congestive heart failure, so Floyd would not be among the suspects about whom this scientist would still believe positional asphyxia to be a real concern.

Yet another trick that Blackwell made great use of was to ask Fowler if the pathologist had done any “qualitative modeling” in his analysis for this case.

You’ll recall that one of the state’s purported expert witnesses had shown up in court with a bunch of demonstrative exhibits that claimed to quantitatively measure Floyd’s blood oxygen level, with single-digit percent precision, based on body worn camera, bystander, and surveillance videos.

Of course, Fowler had done nothing of the sort of this quantitative “modeling,” because Fowler’s not a scientific hack, but it opened the door for Blackwell to continually argue about quantitative models he knew very well Fowler hadn’t made, for the perfectly good reason that they would have been nonsense.

Did you quantitatively model the pressure to Floyd’s body? No. Did you quantitatively model oxygen reserves? No. Did you quantitatively model EELV?  No. Did you quantitatively model how much air Floyd took in with each breath during that subdual restraint and positional asphyxia over those 9 minutes and 29 seconds?  No.

This was all, to my view, ridiculous.  That doesn’t mean, however, that it might not have appeared compelling cross-examination to the jury.

And this is one of the areas in which I felt Fowler dropped the ball.  He could have almost certainly prevented this repetitive scolding by Blackwell by simply answering the first time, “No, I didn’t quantitatively model anything in this case.”

Then if Blackwell had attempted to pose the quantitative modeling framing repetitively, as he did in actual cross-examination, Nelson could have immediately objected that the question was asked and answered, and Judge Cahill would almost certainly have upheld an objection on that basis.

Blackwell also attacked Fowler with respect to question of whether Chauvin, who weighed a mere 140 pounds, could have possibly applied enough pressure, based on his position relative to Floyd, to have had fatal effect.

You know police officers carry equipment? That equipment has weight? Did you consider the weight of all equipment in coming to your conclusions?  No, Fowler conceded, he had not.  This was another relatively rare poor response by Fowler.

Another soon-to-be exposed gaffe was committed by Blackwell when he attempted to mislead the jury on the issue of Floyd repeatedly declaring he could not breathe long before he was placed in prone on the street.

Could you not see Floyd being choked by the officers even as they were trying to get him into the squad car. I don’t recall seeing that, answered Fowler.

So Blackwell asked for some still photos to be pulled up.  Do you see officer Chauvin’s arm around Floyd’s neck in that photo? And, indeed, Chauvin’s arm was rather loosely draped around Floyd’s neck.

Was that a point for Blackwell? Was Fowler too inobservant to see that Floyd was being choked at every point that he claimed he could not breath?  Not for long, as Nelson would circle back to this point on re-direct.

In summary, I didn’t feel that Blackwell scored any major hits on Fowler on cross—or, perhaps more accurately, what hits appeared to be scored on cross were exposed as misdirection (to put it nicely) by Nelson on re-direct.

There is, of course, a great deal more detail to Blackwell’s cross of Fowler, but I’ve shared the most important facets already.

Here’s the video of the cross-examination of Dr. Fowler by Prosecutor Blackwell:

Fowler Re-Direct

Nelson did a really excellent job on re-direct of Dr. Fowler, with particular emphasis on addressing any apparent blows that Blackwell might have appeared to land during cross-examination.

On the issue of Fowler not having considered the weight of Chauvin’s equipment, Nelson asked if the state of Minnesota had ever provided access to that equipment so it could be weighed? They had not. To your knowledge has the state of Minnesota ever made weight measurements of Chauvin’s equipment. Not that I ever saw.

Then Nelson turned the whole “you didn’t even bother to consider the weight of the equipment, you dummy!” talking point back on the prosecution.

Whatever the weight of the equipment, after all, it would only have made Chauvin heavier, which was the state’s point in bringing it up, more weight more pressure, more pressure more lethal effect. But of course, more weight and pressure would also be expected to have other consequences.

You said you saw no evidence of bruising to Floyd’s back? I did not. Not even from Chauvin’s knee and shin? No.  When you consider not just Chauvin’s weight, but also the weight of his equipment, would that make it more probable that we should have seen injury if undue force was used?  Why, more likely, of course. But yet no bruising, no hemorrhage, nothing? Correct.

With respect to Fowler’s alleged fairly to conduct CO studies or testing, Nelson asked if his report had mentioned CO as an issue? It had. And when was that delivered to me, and by me to the state?  In February. And to your knowledge has the state of Minnesota conducted any tests or experiments on CO exposure of this type? No.

Nelson also had an opportunity to touch upon the state’s continually-minute dumping of exhibits on the defense. You studied photographs of the bottom of squad car 320? I did, answered Fowler. Provided by the state? Yes. Provided since this trial started? Yes, just the last couple of days.

I doubt the jury understood the significance of this exchange, and can’t see any ready means to help them understand it, but it’s now part of the record of the proceedings, and will be available for reference should an appeal of a conviction be necessary.

Recall Blackwell’s attempted misdirection on the matter of the white substance in Floyd’s mouth, which he desperately didn’t want presented as a pill.

Nelson asked Fowler, can you say what that white substance was, with any specificity?  I cannot, answered Fowler.  But you agree that white pill fragments were found in squad 320? Yes. And those white pill fragments tested positive for saliva? They did. And that saliva tested positive for Floyd’s DNA? They did.

It was at this point during re-direct that Nelson exposed each of the misleading “readings” by Blackwell of various textbooks, studies, affidavits, and depositions, as already described earlier.

Nelson here also circled back to Blackwell’s claim that Floyd had been choked by officers at every point that he claimed he could not breathe, including when he was still forcibly resisting being placed into squad 320, long before being put prone on the street.

Nelson pulled up the same photos used by Blackwell. What side of the car is that? That’s the street side of the car. Is that where Floyd got into the car, or was pulled out of the car?  Out of the car.  Was he saying at this moment that he could not breathe? He was not. Was Chauvin’s arm positioned to choke him? No, it was loosely draped around Floyd’s neck, with clear space between the front of Floyd’s neck and Chauvin’s arm.

Nelson pulled up slightly earlier photos. What side of the car is this? The sidewalk side. Where Floyd is being put in the car? Yes. When he’s saying he can’t breathe? Yes. Is he being choked here? No.

In summary, I thought Nelson was very strong on re-direct of Fowler, and you can watch that testimony here:

Fowler Re-Cross Examination

There was also a very brief re-cross examination of Fowler by Blackwell, but it didn’t amount to anything substantive—did you see Floyd spitting pills out in squad 320? As if Floyd’s DNA on the fragments didn’t give that game away—and it provided an opportunity for Blackwell to recite the “subdual restraint and positional asphyxia” and “9 minutes 29 seconds” a couple of more times.

Incidentally, the defense objected to the catch phrases each time, here, and Judge Cahill sustained both objections

At that point, Blackwell had no further questions, and the court was done with Dr. Fowler.

You can watch that brief re-cross of Fowler here:

Summary

In summary, it was a good day for the defense on the cause of death front, with a job done very well, if not quite perfectly, by expert witness forensic pathologist Dr. Fowler.  It was also a nice contrast from yesterday’s performance by use-of-force expert witness Barry Brodd.

Whether today is enough to create the reasonable doubt on the issue of cause of death is, however, questionable. And that’s assuming merely the legal merits of the case, and not the fact that the jurors are now apparently commuting through riot-like conditions simply to arrive at the court each day.

One way or another, however, we should expect to know the final outcome of this case soon, and certainly by this time next week.

And that’s about all I have for all of you this evening for our end-of-day wrap-up commentary and analysis of today’s court proceedings. Don’t forget to join us again in the morning for our LIVE streaming and LIVE blogging of tomorrow’s court proceedings, as well as for tomorrow’s end-of-day wrap-up commentary and analysis.

Course Special: Lawful Defense Against Rioters, Looters, and Arsonists

Before I go, in view of the ongoing riots raging presently in Minneapolis, and likely to explode across the nation when this case arrives at a verdict (or mistrial), I’ve also taken the liberty of putting together a special opportunity to access our best-selling course, “Lawful Defense Against Rioters, Looters, and Arsonists,” available in both online streamed and DVD formats.  You can learn more about that course, by clicking here.

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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First commenter! (claps)

The defense was rescued by Dr. Fowler, if facts mean anything at this trial. Good witness – smart, confident, pleasant, credible, and resilient. I hope it’s enough, not the least of which because the prosecuting attorneys, except for one man, are insufferable, and in the case of another, Nearly emotionally unrestrained.

    Pat Lee in reply to PGiddy. | April 14, 2021 at 11:21 pm

    I’m not a lawyer. As a layperson watching the whole trial, it seems to me the prosecution proved Fowler’s point. Unless I’ve misunderstood all the prosecution’s witnesses, Floyd died 8 ways to Sunday. I get the whole restraint thing, but that just seems like 1 issue of many. So, the question I was left with – did Chauvin know Floyd was dying while keeping him on the ground? To me, the defense hasn’t answered that question adequately. The body cams show that 1 of the officers told Chauvin that Floyd was passing out. This was around the time of his seizure and death.

      ekpyros in reply to Pat Lee. | April 14, 2021 at 11:56 pm

      I thought the defense should somehow have made clear that Chauvin couldn’t see Floyd’s face from where he was—and that for him (or anyone) to see it, they would have had to turn their back to the hostile crowd, just a couple feet away.

      CCChair in reply to Pat Lee. | April 15, 2021 at 1:52 am

      While I think it is most likely that Mr. Chauvin didn’t know (or at least, didn’t think) Mr. Floyd was dead when he was loaded into the ambulance, I’ve had a nagging thought for months wondering what if he did.

      What if he did realize, in the moment that Mr. Floyd appeared to “pass out,” that he was dead? What would a reasonable officer do in that situation? Are we to suppose that the crowd would have reacted well if the officers had backed off of him and the crowd realized he had died?

      Would it be reasonable to suspect that Miss Hansen would volunteer to do chest compressions while the crowd swarmed them, and likely became bigger?

      I don’t know what I’d do if I knew Mr. Floyd was gone, and I was in a squatting position in the middle of a hostile crowd, in the middle of a hostile city.

        Pat Lee in reply to CCChair. | April 15, 2021 at 7:56 am

        Good point! But I think we need a better understanding of when EMT was called and how long it took. Also, I think with Fowler’s testimony the defense should make it much clearer that based on all the issues going on with Floyd, that Chauvin was in no way qualified to assist medically. I guess, would it have even made a difference? Also, it needs to be made clear that no, the crowd can not assist. Just because ones says she’s a trained medic, it doesn’t make it true and that the officers are legally responsible for the custody off Floyd. So it would be against policy – I believe. But not sure. That should be clarified.

        Pat Lee in reply to CCChair. | April 15, 2021 at 7:58 am

        Also. Based on all his conditions, would narcam have helped or hurt?

      Edward in reply to Pat Lee. | April 15, 2021 at 10:57 am

      Monday morning quarterbacking the case isn’t particularly helpful. The evidence and testimony is what is to be considered. With all the information the Jurors will have to consider, I’m not so sure they will be pondering “Did Derek Chauvin know George Floyd was dead under him and when did he know it?” Which, of course, that last assumes he did know it. Informed Floyd was passing out and knowing that the EMTs had already been called Code 3, what was Dr, Chauvin supposed to do? Not to mention prior testimony that drug OD subjects often pass out and then regain consciousness and start fighting.

    William L Gensert in reply to PGiddy. | April 15, 2021 at 7:19 am

    The fact that Floyd’s face was a mere foot from the exhaust pipe of a running car is a double edged sword because exhaust is poison and Chauvin and the other officers should have moved him away from the car or at least put him on his side facing away from the pipe.

    Incidentally, positioning someone on there side should be SOP for anyone complaining of an inability to breathe.

    And in the prone position, Floyd would have been receiving much more CO that Chauvin who was positioned above him.

      Would it have mattered? The point you are getting at – what would it have taken to save Floyd? Putting him on his side away from the exhaust? No. Not based on all the other stuff going on with him. The prone position is just noise. I think at the point he was struggling in the car, Floyd should have: 1: not taken more drugs; 2. Told the officers he needed help – possible overdose. The timing of his last ingestion of drugs is critical to the timing of his death. If Narcam was administered, based on what we know, would the police then be charged with murder for incorrectly administering to a dying man with other underlying medical conditions?

Sad that Ricky Ricardo chose not to do the right thing for even once in his entire life. He will regret it in the next one.

    Pat Lee in reply to BillyHW. | April 14, 2021 at 11:25 pm

    Who is Ricky Ricardo? 🤷‍♂️

      buck61 in reply to Pat Lee. | April 14, 2021 at 11:41 pm

      Hall told the park police officer that his name was Ricardo when asked. They were outside of suv being watched by the park police offficer while the other four dealt with Floyd

      lurker9876 in reply to Pat Lee. | April 14, 2021 at 11:57 pm

      Lucy Ball’s ex-husband. Both were in “I Love Lucy”.

      Ricardo was Morries Hall’s nickname, revealed in Chang’s video.

      dden65 in reply to Pat Lee. | April 15, 2021 at 4:52 am

      How can the jury be allowed home for poss 3 days while there is a riot going on? Are the jurors going to be given life long protection or their whole families moved to destinations unknown at the expense of the state. To do so may cause others to think they are being bribed into making a verdict. There is no possible way is there ?that the jurors will not scared for their safety regardless of outcome, they are damned whatever they do.

    Pat Lee in reply to BillyHW. | April 15, 2021 at 8:12 am

    Would it have mattered? The point you are getting at – what would it have taken to save Floyd? Putting him on his side away from the exhaust? No. Not based on all the other stuff going on with him. The prone position is just noise. I think at the point he was struggling in the car, Floyd should have: 1: not taken more drugs; 2. Told the officers he needed help – possible overdose. The timing of his last ingestion of drugs is critical to the timing of his death. If Narcam was administered, based on what we know, would the police then be charged with murder for incorrectly administering to a dying man with other underlying medical conditions?

I wish it got more emphasis, but I thought one of the better points made was Fowler pointing out on cross that normal respiration rate is around 22, but someone exerting themselves heavily or low on oxygen should be breathing at >30. And the absence of an elevated rate was evidence of fentanyl’s depressive effect on breathing. An own-goal by Blackwell.

An Industrial Hygenist is a real thing. They are generally part of a factory’s safety department, and generally concerned with understanding the safety rules and best practices for use with dangerous equipment.

Basically if you’re say, writing a procedure that needs to not accidently shoot a technician in the face with a class 4 laser, they’re the ones who you first go to to find out how to do it right, and sign off on the results to make sure it actually works.

Which also means it makes no sense in this context. If this was a case that involved, aha somebody’s head ended up in the muffin press sure. You’ll want their expert opinion on whether there should have been a railing there, or that someone, say, falling in through the ceiling was not a normal consideration in designing machine separations.

This, on the other hand, was not a controlled environment.

    VetHusbandFather in reply to Voyager. | April 15, 2021 at 8:27 am

    It doesn’t matter if it makes sense in this context, not to the prosecution. The prosecution is expecting that the jury doesn’t know what an industrial hygienist is either. They point of bringing it up was to make it appear to the jury that the expert witness was not the right type of expert to discuss these matters. As such I feel like it shouldn’t have gone unanswered. It makes the Jury doubt that the doctor was qualified to speak on how the presence of CO could have impacted Floyd. Not a Lawyer, but here’s how the defense might have addressed it. “Is it true that Industrial Hygienist’s develop process based on the expert recommendations of the medical community? Yes. And as a Doctor you would consider yourself a member of that medical community? Yes. And in your expert medical opinion exposure to CO could contribute to sudden cardiac arythmia? Yes.”

      I suspect Nelson did not know himself, or know if Dr. Fowler knew, what an Industrial Hygienist is. If you don’t know the answer your witness will give to a question, don’t ask the question, the answer often comes back to bite you,

I think the media has the same story that they publish every day, despite having a whole herd of reporters at the site earning ‘away pay’ and eating take-out. “Today was a bad day for the defense as (name) testified, but was quickly brought to heel by the prosecution and forced to recant various inaccuracies about this evil man who killed GF” (or words to that general idea)

This is the sick disease that is the left on our societal discourse and justice system.

Chauvin’s defense requires experts that are held to the strictest standards of honesty and impartiality because their personal safety could be at risk if there’s even a hint of otherwise. They will admit where they fall short and defend where they are in the right. You can contrast this with the prosecution that has the luxury of providing full blown cover for even a bad handful of fake experts on a few things that can be as partial as they wish to be (while accusing the other side of exactly what they are guilty of perpetuating).

The other telling thing is that the prosecution’s experts are hungry for career advancement and chomping at the bit to score magical court points however they can while the defense has to use a retired and comfortable expert with little concern for loss of career opportunities and another fairly insulated witness in Brodd (who at least had enough courage to take the case while still employed).

    lscalf87 in reply to healthguyfsu. | April 16, 2021 at 6:52 pm

    This is one of the many reasons why I am appalled that Minnesota does not allow wide-open cross examination as is the case in Texas. I know why the politicians of Minnesota don’t want it – because their dirty dealings in influencing the justice system would then be exposed for all to see. Especially in this particular case, where the “prosecutors” are basically private-sector attorneys drafted to perform the bidding of a far-left AG (Keith Ellison) and where their rather pointed waiting to the last minute to present the defense with several pieces of key or new so-called “evidence” is borderline unethical. In addition, I cannot believe that this particular jury was not sequestered. In this day and age of trial-by-media and collateral events that occur while trials are in progress, it would seem a fundamental right in connection with a fair, impartial trial. Does Minnesota even have laws that provide for jury sequestering upon request of the defense? You can bet if a member of BLM was accused of murder, that would probably be the first motion out of the box from the defense lawyers. No way this case should have been tried in Minneapolis, either.

    Regardless of the result, it has been a bad year for American justice; no one will be completely happy with the outcome, either.

Much better day for Nelson today, his questioning of Fowler was much better today than with Brodd. Fowler did very well with what was asked and didn’t leave Blackwell with much to work with. Blackwell ended up on a fishing expediation, Fowler was often times just sitting back in the chair, leaning toward one side with his hand aroud his mouth in a very relaxed position.
Brodd was all over the place and Nelson left too many doors open and have his testimony undermined. He did however give the low information media a headline in his conclusion.
One thing Fowler helped drive home was just how bad the investigation in this case was. The pills that were left in the Floyd suv, the pills in the squad car, no analysis of stamach contents of Floyd, nothing on a CO level, a test on the tumor.
I hope somehow that Nelson can let the jury know that he intended to call Hall to testify and that he is pleading the 5th and the judge blocked him from doing so while on the stand.
The ongoing document dump by the state should be grounds enough for a new trial if needed.
I did like the Cousin Vinny moment when Fowler knew exactly what the exhaust system of the squad car was. Fowler also didn’t overplay his testimony, the CO thing was brought up but he sold it as a possible contributing factor and a main factor

The defense has shown the jury a completely different narrative than that of the media/state. Floyd was violently resisting, ingesting a fatal dose of opiates, had a dire heart condition, said he couldn’t breathe in the car. Even his friends were telling him to comply. The 3 officers could not get him in the car but when he put himself on the ground they called paramedics and decided against the dreaded hobble–so they restrained him for their and his safety until the paramedics could arrive. They believed he was on some drugs but could not have known about his heart condition or fentanyl. The neck restrainst which appeared to be killing him showed no physical damage on the autopsy. The paramedics did not start efforts at the scene due to the “aggressive” crowd, so can the officers with little medical training be blamed for similar fears?

Will the jury be so struck by these withheld facts that the media failed to report such as GF resistance, POs call for ems etc. that they will change their attitudes enough to weigh all the evidence? Or will the graphic and very sad last few minutes of GF’s life caught on video with the officers kneeling waiting for the ambulance–just be too much to overcome?

    lscalf87 in reply to Samantha. | April 16, 2021 at 6:56 pm

    I don’t completely recall, but weren’t there medical witnesses (e.g. paramedics, a doctor) who testified in the trial that Floyd was still alive in the hospital, that he died just when they got him to the hospital? That certainly strikes a blow against this arrogant Dr. Tobin, who examines and examines video until he gets the conclusion he wants.

One interesting tidbit I learned today was that the cause of death is only listed on death certificates as an aid to the CDC to keep track of how people die.

I always knew it was pretty subjective, but I had no idea that most countries don’t do it at all and that it was nothing more than a statistical metric for the CDC.

We seem to place so much legal weight on the Medical Examiner’s finding as to the cause of death in criminal and civil court cases, that I was surprised to learn that is is really not much more than a trivial bookkeeping item.

    henrybowman in reply to fogflyer. | April 15, 2021 at 6:00 am

    I’d be interested to know exactly where you learned that. I can think of a lot of instances where that tidbit should mean a great deal to others, such as insurance companies.

      The Packetman in reply to henrybowman. | April 15, 2021 at 7:26 am

      As I recall, that was Dr Fowlers direct testimony …

      Christopher B in reply to henrybowman. | April 15, 2021 at 8:45 am

      About the only thing a life insurance company cares about is if your death was or could have been self-inflicted. Basically if you’re dead the company pays regardless of the *cause* of death though they might have other questions about the circumstances leading up to it.

    lurker9876 in reply to fogflyer. | April 15, 2021 at 7:54 am

    So much for counting the number of COVID deaths…

    susiejoe in reply to fogflyer. | April 15, 2021 at 9:53 am

    It is more than just trivial. Often families want the autopsy, especially in premature and/or unexpected deaths, as it gives them something to help in their grieving process. It also does help in true homocides.

    Milhouse in reply to fogflyer. | April 15, 2021 at 11:22 am

    I don’t know about most countries, but I have dealt with Israeli documentation of deaths, and there are two main documents: a Notice of Death that the hospital or doctor sends to the government, and a Death Certificate that the government sends to the family. The death certificate has a space labeled “Cause of Death” but it seems to always be left blank. At least, I’ve examined dozens of these and never seen one that had anything in that space. But the Notice of Death always gives the immediate cause of death and also all conditions contributing to the death.

    I suppose since Israel is one state, not fifty, the equivalent of the CDC has all the information it needs on the Notice of Death; it has no need to examine death certificates that it itself issues. But in the USA death certificates are issued by the states, and the CDC collects those and uses them as input; I would guess that it has no access to whatever documents the hospitals submit to the states. So it makes sense that the states put information on it that the CDC has asked for.

      lscalf87 in reply to Milhouse. | April 16, 2021 at 7:07 pm

      It is my understanding from talking to my own personal physician that the hospitals send the same death certificate to the state of Texas as they send to the CDC. So that is the “access” that the CDC has here. But I’m not totally sure about how that works, I may be wrong about some details. In the case of COVID-19, the state of Texas has a dashboard that has fairly elaborate demographics for COVID-involved deaths and hospitalizations, but not enough data of relevance to the issues I remain concerned about.

    lscalf87 in reply to fogflyer. | April 16, 2021 at 7:03 pm

    Since the death certificate determinations of cause of death seem to be driving public health policy in connection with COVID-19 (especially Medicare policy to provide a 20% premium on medical reimbursements to doctors and hospitals who receive or treat “COVID-19 patients”), it is much more of a big deal than one would think. There are a lot of diagnostic codes provided on those death certificates for CDC and others to use. For proper and not so proper, it seems, purposes.

    The fact that “homicide” is the one term of the five used, that term is legally so broad these days that it makes sense to require medical examiners to break it down more. This guy Baker made no specific intimations in his autopsy report about the things he concluded at trial. That should have been an item of severe cross-examination from the defense (Nelson did do some of that, but not enough, in my opinion – although once again, that may relate to the allowed scope of cross-exam in Minnesota).

Refusing to comply with lawful orders from the police never ends up in a better ending:

https://citizenfreepress.com/breaking/deadly-shooting-inside-ohio-hospital-er-perp-pulls-gun-on-police-perp-is-dead/

I feel like the mainstream press is salivating over the prospect of riots if DC is either acquitted or is charged with something less than murder. I don’t see how the other officers can be found guilty of anything at all. But to listen CNN or read the NYT conviction is a forgone conclusion. I didn’t see the other side until I started reading this site. Thanks for taking the time to be honest Mr. Branca. I fear this verdict is going to make the Rodney King riots pale in comparison. And the true tragedy is, just like last summer, it won’t be the rich white people getting their stores looted nd burned down, or have to put up signs begging rioters not to set their building on fire because children live there. I’m trying not to be over dramatic but after last summer, I fear for America.

Just look what’s already happening with the case where the female officer accidentally pulled her gun instead of her taser. What was there to protest about, never mind riot over. She’s been fired and almost certainly will go to jail. Her life is ruined. Seriously? What goals do the protesters or rioters have other than that. No police in America at all. Whether you’re MPD or the new BLM community police, you’re still going to have criminals that you deal with that are willing to hurt or kill you to stay out of jail. I feel very worried about our countries future. Stay safe out there everyone!

    audax in reply to katesully. | April 15, 2021 at 6:00 am

    Ya getz whatz yaz votz for…..let the Blue States and Counties BURN!

    henrybowman in reply to katesully. | April 15, 2021 at 6:01 am

    “Just look what’s already happening with the case where the female officer accidentally pulled her gun instead of her taser. What was there to protest about, never mind riot over.”

    Time for some new shoes — these are wore out.

      Edward in reply to henrybowman. | April 15, 2021 at 11:10 am

      Riot? Looting? Nah,. these were simply peaceful protesters registering their dissatisfaction with the people and powers that be.

    DaveGinOly in reply to katesully. | April 15, 2021 at 1:45 pm

    As Tucker Carlson recently pointed out, the “defund the police” effort has become “policing can’t be reformed.” The difference is that the latter movement wants to abolish policing as it is done now (locally) and replace it (rather than reform or merely abolish the current system) with policing controlled by the federal government, the control of which the Democrats are trying to make permanent. The Democrats are trying to seize absolute control over policing in the country, so policing can be weaponized (top-to-bottom, they’ve already weaponized law enforcement in many jurisdictions through various states’ attorneys) against their enemies.

I do have a question for anyone into self defense. I don’t have much money is there a good place to get a gun that is cheap but works? It kills me to have to even think this way. Am I just being paranoid?

    PGiddy in reply to katesully. | April 15, 2021 at 6:01 am

    Take a local training class and they can guide you.

    henrybowman in reply to katesully. | April 15, 2021 at 6:16 am

    Pawn shops, but you had better take along someone who can inspect the gun to be sure it’s not junk.

    Be aware that America’s world-famous “loose gun laws” disqualify you from legally purchasing any firearm if you cannot answer no to the question:

    Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.

    The actual meaning and applicability of “addicted to” is a crapshoot, depending on which district you reside in. IANAL, but I don’t believe this has ever been clarified by the Supreme Court.

    ErictheGreat in reply to katesully. | April 15, 2021 at 10:03 am

    I would suggest your local gun store, not a big box store like bass pro shop. I would also recommend a Smith and Wesson SD9VE. It is their budget self-defense model. While a Glock or M&P are certainly better pistols, the SD9VE is a lot cheaper, and is a good balance between cost and performance. If you or a friend are DIY inclined, the SD9VE can be significantly improved with a replacement trigger from Apex Tactical. There are videos on YouTube showing you how to install it. It’s not hard. It’s probably not worth the cost of having it professionally installed. At that point you’d have been better off getting the more expensive Glock, M&P, etc.

    Edward in reply to katesully. | April 15, 2021 at 11:14 am

    It may be an issue of where you reside and what is available on the gun shop shelves. I suspect most of MN may not have a single firearm of any type on those shelves. Also depends on whether your state or city (e.g. NYC) has a requirement for registration. a permit to buy (e.g. IL FOID. NY State Pistol permit), etc.

    DaveGinOly in reply to katesully. | April 15, 2021 at 1:47 pm

    Watch some YouTube videos by the Honest Outlaw. He does many reviews of less-expensive firearms that are appropriate for first-time gun buyers looking for a self-defense weapon.

Does MN allow attorneys to argue failure to call logical witnesses (aka “empty chair doctrine” or “missing witness inference”)?

Could Mr Nelson raise this regarding Mr Hall during closing?

Too much time focusing on the car exhaust.
Is the defence trying to put the thought in the jury’s head that carbon monoxide may have killed Floyd ?
What a major mistake what a major stretch the jury will get confused or just think the defence is just jerking their chain .
It’s an obvious drug overdose and defence should be hammering that point every way they can .
Defence should also be demonstrating that the knee to the back of the neck was lot dangerous.
Other thing defence should be doing is taking all the medical jargon and putting it into plain English doubt everyone on the jury are doctors

    lionbush in reply to kevinbrown. | April 15, 2021 at 7:29 am

    It was made explicitly clear on several occasions that was not what they were saying regards the exhaust. What was being said was that the CO from the exhaust could have lowered Floyd’s oxygen levels in his blood, which when combined with every other factor present, could have been a contributing factor to his death. What is being painted here by the defence is that each individual part such as stress of the arrest, heart disease, drugs and CO from the car, when added together lowered the oxygen levels in Floyd’s blood which lead to cardiac arrest and then death.

      Char Char Binks in reply to lionbush. | April 15, 2021 at 8:19 am

      You’re right, but Kevin makes a very good point.

      The takeaway for the MSM, general public, and maybe the jury, is the incorrect notion that the defense is propounding a ludicrous theory that floyd died not because of heart disease, drug abuse, knee on neck, etc., but a nine-minute exposure to exhaust fumes. CO level was merely a possible contributing factor, and Fowler proposed a logical explanation for it.

      Reasonable doubt is a good thing for the defense, and is ordinarily enough for an acquittal, but this case is far from ordinary, and requires proof beyond doubt of innocence. Fowler did an excellent job on the stand, but it’s not the game, set, checkmate that you may think in a conservative bubble.

        lionbush in reply to Char Char Binks. | April 15, 2021 at 8:54 am

        I agree with the MSM. They have too a selective portion of the testimony to spin a crazy story that the defence are claiming that this is the case. Whilst missing the several instances where it was made clear that this was not the claim at all.

        This is typical of the current state of the MSM right now. They are making people believe that the case verdict is cut and dry when it is a 50/50 at best. having watched all but one day, and as someone who had him guilty before the trial, I can honestly say that I’m now firmly in the territory of reasonable doubt as to all the charges. If the experts cannot agree on the use of force or the cause of death then that is reasonable doubt. For the cause of death, due to the conflicts in opinions, I would then refer to the official report from Dr Baker which would then acquit.

        DaveGinOly in reply to Char Char Binks. | April 15, 2021 at 1:55 pm

        I think part of the point of raising the possibility of CO poisoning was to inform the jury that the state didn’t even address the possibility. Which in the minds of more suspicious jury members will raise the question: Did the state intentionally avoid taking CO into account because it would have been damaging to their narrative?

        The cross on this issue seemed like the state was outraged that CO was even mentioned as a possible contributor to Floyd’s death. The state was embarrassed by a defense witness who 1.) considered something they missed; or 2.) mentioned something they would rather keep from the jury. “It’s the whipped dog that yelps.”

      kevinbrown in reply to lionbush. | April 15, 2021 at 2:11 pm

      Well yes Nelson said he didn’t think Floyd died by carbon monoxide poisoning so why bring it up , why spend so much time focusing on it ?
      If they want the jury to think it may have been one of many contributing factors well the jury may find Chauvins knee on Floyd’s neck was a more substantial factor if you want them to think that way .
      Even bringing up Floyd’s heart condition was stupid for the defence cause it takes the focus off the main point the defence should be making , that is Floyd had close to 4 times the lethal amount of fentanyl in his system along with other hard drugs .
      There were no signs on autopsy that Floyd had a heart attack from blocked arteries.
      He had blocked arteries but who doesn’t in the west ? Fact is according to his girlfriend he pumped weights every day and sure did look like a professional weight lifter.
      His daily work outs would have been more strenuous than anything the police did to him.
      I think a key statement was by his ex girlfriend that was in the car .She said he fell asleep and she was making arrangements to get another ride home .
      Falling asleep a sign of over dose and when the police wake him and try to put him in the car he most likely ate even more fentanyl.
      Focusing on heart attacks,tumours and carbon monoxide will only confuse the jury .

I have a glimmer of hope, however small, that “the fact that the jurors are now apparently commuting through riot-like conditions simply to arrive at the court each day” will have an unintended effect.

Maybe seeing the destruction might help some of them to realize that whether or not riots happen does not turn on their vote. The riots will happen anyway, and maybe some bitterness at the destruction will make them consider that the rioters don’t deserve to get what they want–not if they destroy the community anyway.

    henrybowman in reply to CCChair. | April 15, 2021 at 6:18 am

    But it may determine whether or not the rioters specifically target their house.

      lurker9876 in reply to henrybowman. | April 15, 2021 at 8:01 am

      if they were smart, they should move their family members and pets to a secret location. AND the jurors should not go to the secret locations daily. Apparently, they were able to find the houses belonging to Kim Potter, Josh Hawley, and one of the Trump impeachment lawyers.

      These jurors should be checking into nearby hotels and once over, get the dodge out of town.

If I were making the closing argument part of it would be;

The prosecution agrees with my expert that the cause of death is indeterminate. They have presented witnesses who have testified that the carotids were blocked, the airway was compressed, the position Floyd was put in prevented him from breathing, and that his neck position caused his airway to be blocked. They are telling you as clearly as is possible that they do not know with any certainty what the cause of death was. While at the same time they want you to believe that ingesting a dose of fentanyl sufficient to kill a person, having a main artery with a 90% occlusion, an enlarged heart, high blood pressure, a panic attack, and extreme exertion could not possibly be the cause of death — all beyond a reasonable doubt.

Can any of you honestly say that you know for a certainty which of these things killed Mr. Floyd?

    Flatworm in reply to Thatch. | April 15, 2021 at 6:12 am

    Yes, arguing in the alternative seems like kind of a dicey strategy for a criminal prosecution.

    lionbush in reply to Thatch. | April 15, 2021 at 7:39 am

    I’d start with pointing out to the jury that this is not a political decision, and that I understand the potential for pressure, threats and violence. That I as the defence lawyer understand these issues because I am subjected to them all too. But sometimes doing the right think takes bravery, courage and conviction in adversity. In taking on this case I did so firmly believing that Mr Chauvin was innocent, despite the threats, violence and political or social pressures to believe otherwise. I chose to defend him because it was the right thing to do, and I believe so even more than I did at the start of the trial that he in innocent (because of all the things listed above which would follow on from this).

    Char Char Binks in reply to Thatch. | April 15, 2021 at 9:05 am

    Very good points, but you have to also drive home the fact that even if Chauvin’s actions caused floyd’s death, as a contributing factor or by themselves, he committed no crime if his actions were not criminal. It’s not against the law to arrest and detain a suspect, and it’s not a depraved act to hold and restrain a deranged druggie until EMS arrives, nor does he need to have known all possible factors and have acted flawlessly.

    The talk on Court TV is that Chauvin should be found guilty if his actions can be proven to have caused floyd’s death, even if they were only contributory, presumably even if they merely helped cause or hasten his death to any degree at all. This is the mindset the defense must counter.

    Joe-dallas in reply to Thatch. | April 15, 2021 at 10:51 am

    I do have to agree that the prosecution changed their theory of cause of death multiple times, while at the same time, claiming the bad heart, and drugs had nothing to do with the cause of death. Along with explaining that there was zero trauma associated with any of the prosecution’s theory of causes of death.

My Jury prediction
1) guilty on most all counts
2) A few days after jury verdict – a pro guilty juror will make private/public announcements that they tried to get on jury with full intention of voting guilty without regard to evidence
3) Another juror will privately approach Nelson with information on threats from other parties to expose him/her if they vote not guilty.

Items 2 and 3 will be enough to raise appeal for new trial,
New trial will not be granted by the appropriate appeals court, and MN Sp Ct will uphold appeals court ruling,

    oogabooga in reply to Joe-dallas. | April 15, 2021 at 8:11 am

    Disagreed. Most likely going to be hung jury, then in the second trial possibly acquittal. Yes, some people are cowards who cave in because some third-party punks want to fight them and others probably went on just to spam guilty but there are also people who have judicial integrity.

      Joe-dallas in reply to oogabooga. | April 15, 2021 at 8:45 am

      Branca said he was a pro – but he would never bet on a jury verdict

      I will –
      0% chance of not guilty
      5%-10% chance of hung jury
      90%-95% chance of guilty on most counts. With near 100% chance of one or more jurors post trial publicly announcing that they tried to get on jury to convict, get justice and at least one juror privately approaching nelson with information about juror intimidation.

        Joe-dallas in reply to Joe-dallas. | April 15, 2021 at 8:47 am

        one significant fact that will hurt Chauvin is the testimony of the lead paramedic regarding zero first aid provided, that will carry a lot of weight (even though it would not have helped!)

        oogabooga in reply to Joe-dallas. | April 15, 2021 at 9:28 am

        Disagreed heavily. Looks more like this:

        25% chance of not guilty
        50% chance of hung jury
        20% guilty on most counts
        5% guilty on all counts

          Joe-dallas in reply to oogabooga. | April 15, 2021 at 9:36 am

          oogabooga – the bet is on! Standard amount $1. (standard amount from trading places)

          Joe-dallas in reply to oogabooga. | April 15, 2021 at 9:40 am

          Oogaooga – I will add that I am 100% confident of 1) at least one juror and likely 2 or 3 three announcing that they tried to get on jury in order to convict. and 2) at least one pro-not guilty juror who voted to convict approaching Nelson post trial that he/she was intiminated by other jurors or outside threat to vote guilty.

Good recommendations on the closing arguments for the defense. Joe-Dallas’ predictions or hung jury may be the only predictions. Most of us would be surprised if Chauvin gets acquitted on any or all counts.

No matter the verdict, there will be riots, looting, and arson. MPD will see more and more staffing reductions and experience the difficulties in recruiting the right and competent people.

The defense’s closing argument, in 9 seconds:

https://m.youtube.com/watch?v=pDmGhethEoQ

Any chance of acquittal on every charge, guys? Definitely getting acquitted on 2nd-degree murder because prosecution offered no evidence of that, but I don’t know about 3rd degree murder or negligent homicide. That will probably be hung jury.

healthguyfsu | April 15, 2021 at 9:18 am

Haven’t watched every video of trial. Has the jury at least seen the whole, unedited videos of the footage?

This trial has major implications for what politically motivated prosecutors will be allowed to get away with going forward. I also think Nelson didn’t do the greatest job. It seems like his plan was always to be the cool customer, which is fine, but you better have everything covered and find a way to make your wins stick with the jury if you are going to be that way.

What caught my eye was the paraganglioma which was found on autopsy. That item, by itself, could easily have caused Floyd’s death. This is a rogue adrenal tumor which releases epinephrine into the body, raising the blood pressure to dangerous levels under stress.

My husband had one of these. It was identified when he nearly died in routine back surgery. He awoke to find an anesthesiologist “dancing” around him for at least an hour in recovery. This was followed by consultation with an endocrine specialist surgeon and two months of treatment with heavy blood pressure meds to allow surgery to remove the tumor safely. These tumors are most often found on autopsy, because the patient is not aware it’s there until it kills him.

    gmac124 in reply to tarheelkate. | April 15, 2021 at 4:21 pm

    Great comment about the paraganglioma Kate. I am sure with your knowledge Mr. Chauvin would be acquitted of all charges. The real question is how many of the jurors (if any) have any knowledge of them? I know I didn’t know anything about them until I followed this trial.

My own judgment is that a hung jury is the best hope the defense has. And that in turn depends upon at least one juror with sufficient backbone to stand up against the terrorist attacks he will face.

arguably qualifying as propagating outright false narratives to the jury

Nothing arguable about it. That’s exactly what he was doing.

Webmaster:
There is always the risk, however, that a jury will apply the lawman’s meaning of “homicide” to mean “unlawful killing,” and Nelson took steps to address this.

Should be “layman’s”.

Hall has nothing to worry about. His defense has already been written in stone by the prosecution in the current trial. His attorneys would just call the prosecution’s medical witnesses from the Chauvin trial.

“Did you testify for the prosecution in the Chauvin trial?”
“Yes.”
“And in that testimony, didn’t you aver that it was your professional opinion that Georg Floyd did not die of a drug overdose?”
“That’s correct.”
“And that Floyd’s intoxicated state had nothing to do with his death?”
“That’s also correct.”

Concerning the prosecution’s case with regard to the proximate cause of Floyd’s death – I believe the state did great damage itself by bringing up a parade of expert witnesses who could not agree about the cause of death. The fact they contradicted each other would indicate to me (as a juror) that nobody is sure what killed Floyd. The prosecution’s own expert witnesses agreed only that Chauvin’s actions killed Floyd, but because they disagreed over which of those actions were responsible, that makes their testimony (by my lights) unreliable.

carolinaandbaby | April 15, 2021 at 2:13 pm

Bottom line…not sure based on the testimony, expert and what not, killed GF. The only one who who could come close would be the ME but his diagnosis changed once the politicians got ahold of him.

carolinaandbaby | April 15, 2021 at 2:15 pm

Meant to say “what killed GF”…sorry.

Mr. Branca, I have done my best to watch every minute of this trial, including the motion hearings. I have specifically avoided seeing or reading any so-called “news” reports of this case so as not to taint my observations. I’m not an attorney, but I did spend 30 years in law enforcement and EMS, and have observed and testified at countless trials, criminal and civil.

At the end of viewing each day’s proceedings and forming my opinions, I come here to see your analysis of the day’s events. So far, I think you are spot on in your views and reporting. I might not be quite as critical of Barry Brodd’s somewhat cringeworthy performance on cross examination, but that is only because having done the same work, I knew what he was trying to get at. He was just no match for the prosecutor. I think if I were him, after this, I’d consider full retirement.

In any event, I am appalled when I listen to friends who have not watched the trial, but rather only heard media reports. They think this is an open and shut case, with no factual issues to be resolved. In their minds, Chauvin killed Floyd and if he is not convicted there will have been a serious miscarriage of justice. Such is the power of the media narrative. If we in fact have riots in the wake of the verdict, I believe those media outlets will have been at least partially at fault. If anyone dies as a result, they will be at least as much to blame as Chauvin may be in the death of George Floyd. Unfortunately there is no means by which to prosecute them.

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