Most Read
Image 01 Image 02 Image 03

LIVE: Chauvin Trial Day 11 – Has State Eliminated Reasonable Doubt As Case Nears End?

LIVE: Chauvin Trial Day 11 – Has State Eliminated Reasonable Doubt As Case Nears End?

Reasonable Doubt Before Defense Even Begins Is Bad For Conviction

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

As we enter the 11th full day of trial in this case, the state is rapidly approaching the end of its presentation for its case in chief. We are, therefore, nearing a major inflection point for this trial.

For those who may be unfamiliar with the criminal trial process, after opening statements by both sides, the state takes the first turn in presenting the jury with its case in chief, meaning its entire comprehensive argument to meet its burden to remove all reasonable doubt on the criminal charges brought against Chauvin.

These charges include second-degree murder (really, felony murder), third-degree murder (really, reckless homicide), manslaughter, and third-degree felony assault (the predicate for the felony murder charge). A more detailed overview of these criminal charges is discussed in our previous commentary and analysis, here:  Chauvin Pre-Trial Day 1: 3d Degree Murder Throws Wrench Into Jury Selection Process.

After the state has finished presenting all the witnesses and evidence that they believe prove the crimes charged beyond a reasonable doubt, they rest their case, and it becomes the turn of the defense to present witnesses and evidence that they believe create a reasonable doubt.

The key is that the point at which the state rests its case is normally the high point of the prosecution’s narrative of guilt, the point at which reasonable doubt has been eliminated to the greatest degree likely to be achieved at any point in the trial.  From here on the narrative presented to the jury is primarily the narrative of the defense, which is the narrative that drives an increase, not decrease, in reasonable doubt—and reasonable doubt is the key to acquittal.

So, if this is the highpoint of the state’s narrative of guilt, and by extension the point at which reasonable doubt should have been eliminated to the greatest degree in the entirety of the trial, has the state really met that burden? Has reasonable doubt been effectively eliminated? Has the state met the threshold required for conviction? Because if they haven’t done it before the defense even has its turn on the field of legal combat, they’re not likely to achieve it moving forward.

In our coverage of the state’s case in chief so far I’ve seen plenty of state’s witnesses provide testimony and evidence that could readily support a jury—or, at least, individual jurors—in forming a reasonable doubt on these criminal charges, and on at least two fronts.

Keep in mind, the state really has to prove two different claims to arrive at criminal misconduct on the part of Chauvin in the death of Floyd.

First, the state has to prove that Chauvin’s conduct was a significant contributory cause of Floyd’s death—that would be sufficient for the third-degree murder charge.  Even the other charges do not require that Chauvin intentionally killed Floyd.  Apparently not even the prosecution believes this was an act of intentional RACISTPOLICEMURDER!!! Or we would see an intentional killing charge in this case, and we do not.

But I see many in the media reporting as if that’s all the state has to do, is prove beyond a reasonable doubt that Chauvin’s conduct was a significant contributory cause of Floyd’s death. If that were correct, a conviction would seem at the very least highly possible—after all, the truth is almost certainly that Floyd died not of any single cause but of multiple forces racing together to take his life—his profound heart disease, his dangerous hypertension, his deadly-levels of fentanyl complicated by methamphetamine, his decision to forcibly resist the efforts of four police officers to make his lawful arrest.  But also, of course, that force used by police, including the subdual restraint.

Surely it’s not hard to imagine that the subdual restraint was a significant contributory cause of Floyd’s death—at least, it could have been, and a reasonable juror might conclude it was, and that it was proven so beyond a reasonable doubt.

Does that get us to a conviction?

No, because there’s a second condition that must also be met in order for that conduct that may have made a significant contribution to Floyd’s death to be a crime—the conduct itself must in some manner be legally wrongful.  If the conduct was lawful, it cannot be the basis for criminal liability.

Some simple analogies should illustrate this point.

If you’re driving your car down the street in a safe and lawful manner, and a pedestrian unexpectedly steps in front of your vehicle and is struck and killed, you certainly made a significant contribution to that pedestrian’s death, but you haven’t committed a crime because your conduct in driving in a safe and lawful manner was not wrongful.

If a surgeon is desperately operating to save the life of a patient on his table, and the patient dies of a combination of their grave illness and the physiological stress of being opened up for surgery, certainly the opening up of the patient made a significant contribution to that patient’s death, but the surgeon hasn’t committed a crime because his conduct in performing surgery was not wrongful.

If an officer intentionally shoots and kills a suspect—so an intentional killing, which is more than Chauvin is charged with!—under circumstances that are legally justified, the officer has clearly made a significant contribution to that suspects death, but the officer has not committed a crime because his use of force was legally justified, and not wrongful.

By extension, even if Chauvin’s use of force on Floyd made a significant contribution to Floyd’s death, it’s not a crime unless that use of force was not justified under the totality of the circumstances, and thus if the force was justified it is not wrongful and not the basis for criminal liability.

Conversely, the same is true if the state’s rationale for guilt is undue delay in providing care, which is one of the several theories of guilt the state has been stirring in their narrative stew of guilt in this case.  Even if the delay in care was a significant contributory fact in Floyd’s death, it is not wrongful and not the basis of criminal liability if that delay in care was reasonable under the totality of the circumstances, including the circumstance of Floyd having been just minutes ago violently fighting four officers, the circumstance of the angry crowd shouting threats of imminent physical violence, the officers having no reason to know Floyd was in such fragile condition due to existing disease and fentanyl levels, and more.

So, that’s what the state needs to have achieved by the point that they end their case in chief, even if we just limit ourselves to the 3rd degree murder charge in this case, and disregard the more serious charges—they need to have proven beyond a reasonable doubt that Chauvin’s actual conduct was a significant contributory cause of Floyd’s death AND that Chauvin’s conduct was not reasonable under the totality of the circumstances, given the facts known to Chauvin and the time and in the context of his training and experience.

And the state needs to have eliminated any reasonable doubt, on both those points, in a sufficiently robust manner that it can withstand the next two weeks of defense case in chief driving every single day with every single witness to crack open that window of reasonable doubt.

As of today, has the state achieved that threshold, on both those key issues? If not, will they within the next 24 hours or so before they rest their case in chief?

Color me skeptical.

In any case, be sure to stay with us today as we continue our LIVE blogging of the court’s proceedings in real time, and of course for our end-of-day wrap-up analysis and commentary this evening.

Here’s the live video stream of today’s proceedings:

Here’s the LIVE blog stream:

And, of course, many thanks again for the support of Legal Insurrection, which initiated and sponsored this coverage, and also to CCW Safe which has joined in supporting this effort, making this commentary and analysis free to all of you kind readers, viewers, and listeners.

Finally, 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.

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.]

 

 

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments


does anyone think the jurors will go for the 3rd degree charge just to try and mollify the mob?

    StandardMurse in reply to geronl. | April 12, 2021 at 4:22 pm

    The compromise I see them agreeing on, either as a group, or in their own minds is the 2nd degree manslaughter charge. You get a “guilty” verdict but the emotional anguish of sending someone that is for the most part innocent to a few years probably would let a juror sleep at night. Then, as a juror, you just hope that doing this allows the city to burn for a few days instead of a few weeks.

    Kenny Effin Powers in reply to geronl. | April 12, 2021 at 5:27 pm

    Perhaps, but do you really think that will be good enough for the mob?

    stogiefan1953 in reply to geronl. | April 12, 2021 at 7:26 pm

    Folks, get used to it…the outcome of this trial will be commonplace in the future=

    jury nullification by the mob

Steven Crowder appeared on YouTube the other day demonstrating how 9+ minutes of having a man put a knee on his neck did exactly nothing. Not admissible in court, but instructive for us laymen.

I believe there are victims of assault (ICU and ER staff) by a suddenly alert, previously passed out OD and that is without Narcan or Romazicon, who could testify as to the legitimacy of DC’s actions.

    Subotai Bahadur in reply to Wahrheit. | April 12, 2021 at 4:44 pm

    Long ago when the world was new, I used to have to instruct new ER staff in dealing with patients passed out from drug overdoses. They would be about to administer Narcan. Before they did, I would stop them, cuff both of the patient’s hands to the gurney, and then let them administer. The reason was that they would go instantly from OD to withdrawal and come up fighting. Just one of the lessons from the days of being the badge in the ER. Just because a felon is on drugs does not mean they are going to be non-violent.

    Subotai Bahadur

I am at the “This Is Your Life” segment of the testimony now.

What possible relevance is it to have Floyd’s brother on to talk about his favorite video games?

All of our institutions have failed in pretty much every way it is possible to imagine. This serves no purpose but to be prejudicial.

Why can the prosecution put people on to attest to Floyd’s good character, but the defense can’t point out that he ate a boatload of drugs to hide them from the cops during a previous arrest, or held a gun on a pregnant woman?

The judge should really call for a mistrial:

Minnesota Gov. Tim Walz to those who plan on rioting tonight:

“The largest police presence in Minnesota history will be prepared. You will be arrested. You will be charged.”

Where did prosecution get the idea the defense would use crowd hostility as justification for restraining Floyd?

    Check the wrap up’s from the first through third or fourth days. of the trial The first witnesses (MMA Guy and Firefighter woman in sweatpants) had claimed the crowed was not hostile, but the Nelson showed video on cross that had MMA guy and Fire Fighter yelling and threatening the officers.

Today has been grotesque. Completely biased rulings from the judge. He might as well put the Black Cap on like an English hanging judge.

Why isn’t Chauvin’s statement to McMillian hearsay?

Obvious what this is here. These communists want to remove all warriors in police departments and the military. This guy is part of the mob, didn’t like police so became a lawyer to go after them. I’ve seen this before when they hired guys like him. This is also happening in the military.
Soften up the base is what it is.
Sickening clarity right here.

Come across as a combative witness. Effect on jurors?

Nelson laying a trap that Stoughton is attempting to walk around

StandardMurse | April 12, 2021 at 4:48 pm

This guy splitting hairs is extremely confusing.

Hostile witness.

StandardMurse | April 12, 2021 at 4:52 pm

This guy is trying way to hard to not be trapped so he isn’t just answering the questions and isn’t paying super close attention to what he is being asked to the point that he is forgetting what is being asked during yes or no questions.

Char Char Binks | April 12, 2021 at 4:54 pm

Stoughton has a hard time understanding simple questions. He should be declared non compos mentis.

Kenny Effin Powers | April 12, 2021 at 4:54 pm

This expert appears reluctant to answer the questions honestly as it would contradict the state’s narrative (despite him having said he’s not afraid to give contrary opinions to who hired him earlier).

Either these witnesses were not given all of the evidence or ill-prepared. They were definitely NOT prepared for the cross.

StandardMurse | April 12, 2021 at 4:55 pm

Pretty typical academic, great in theory and with his prepared boxed answers, but ask him legitimate questions and he can’t hang.

This guys obfuscations are becoming tiresome. Hopefully, the jury is feeling the same.

This Stoughton dude is a heck of an argumentative tool.

Kenny Effin Powers | April 12, 2021 at 4:58 pm

The suspect does NOT get to decide where they’re put, this can’t even be argued.

Kenny Effin Powers | April 12, 2021 at 5:00 pm

Officers forget to search all the time. County jails regularly find dope and weapons on inmates brought in for booking.

This use-of-force guy is not really helping the state much.

The way he said “I’ve never seen that” in response to Nelson’s hypothetical about jumping jacks likely won’t endear him to the jury.

And it seems like he’s deliberately pretending not to understand many of Nelson’s questions to interfere with his rhythm and the impact of the Q&A.

    StandardMurse in reply to ekpyros. | April 12, 2021 at 5:02 pm

    I think you make a good point about the rhythm, He is trying to verbal Judo him and it is exhausting and Nelson looked slightly frustrated.

Mr. Stoughton gives me creepy “liberal college professor” vibes.

Kenny Effin Powers | April 12, 2021 at 5:01 pm

I was always taught to double search somebody before placing him in my squad car, even if he was being taken out of another squad car and presumably searched.

    amatuerwrangler in reply to Kenny Effin Powers. | April 12, 2021 at 9:07 pm

    If you did not do the search, then you search when you take custody of the prisoner. The wagon crew searches every prisoner before they are put inside. And when they get to the jail, the first thing the receiving jailer does is search. Again.

    I did not watch the questioning: Where the hell did this clown work as a cop? And an earlier question/comment in the thread was “Why did he leave for academia?”And is he actually teaching police related material? He sounds like his answers are being pulled out of Cliff Notes..

    Nelson should have asked if sidewalk crowds remain the same size as the event progresses…. because they don’t. They grow rapidly, And they feed off each others and almost always work up to “Hostile”. The cops that night are lucky that the other occupants of the car did not decide to rescue their pal.

    All the officer has to go on is how he is trained. They have to depend on the fact that the training complies with “legal standards” and that when those standards change, training updates are given. I’ve been there, early 70s to mid-90s, lots of stuff changed; many tress gave their pulpy lives to produce all the training bulletins we were showered with….

Can a witness review a previous witness’ testimony?

So these guys are being allowed to review what others say during testifying? WTF???

Kenny Effin Powers | April 12, 2021 at 5:05 pm

Something tells me this witness has never been kicked in the face by a suspect while prone or had to fight somebody with superhuman drug strength.

    Char Char Binks in reply to Kenny Effin Powers. | April 12, 2021 at 5:35 pm

    True, but he has written about it.

    I’d really like to hear what the officers he worked with for those 5 years have to say about him.

      Chewbacca in reply to Chewbacca. | April 12, 2021 at 5:39 pm

      By the way as a cop with almost 20 years on the job now I can attest that at 5 years you’re just starting to figure stuff out. You’re the guy rookies might go to for advice, but you’re still asking for advice from the people who really know what they’re doing.

Here’s the Stoughton jackass recording himself rapping like a tiktok star (not kidding:) https://twitter.com/PoliceLawProf/status/1374155122482294784

An example of how a 10 minute testimony can be strung out to 90 minutes.

Imagine being required to attend his lectures.

Kenny Effin Powers | April 12, 2021 at 5:18 pm

This witness is a clown.

Kenny Effin Powers | April 12, 2021 at 5:18 pm

12-15 isn’t a crowd?

StandardMurse | April 12, 2021 at 5:18 pm

Would a reasonable professor give a reasonable student a headache? It depends on how reasonable the reasonableness is to both reasonable professor and reasonable student.

StandardMurse | April 12, 2021 at 5:19 pm

This guy just made himself look like an idiot arguing the crowd point.

Yeah but not this.

Nelson is destroying this guy and his credibility. He must come from a blue county. Broward?

Instead of arguing that these lengthy answers are non-responsive, is Nelson allowing him to blather on, hoping that he is alienating the jury (who would like to go home some time today)?

So 2.5 days for defense to present their case? Seems fair.

    StandardMurse in reply to Chewbacca. | April 12, 2021 at 5:40 pm

    The defense scored a lot of points on the prosecution side and really the prosecutions witnesses were pretty redundant. Get rid of the first few witnesses that didn’t add much like the minors, get rid of the brother today, and get rid of Stoughton, and the legitimate case that the prosecution put on is like a week.

Defense might be finished by Thursday???

Ya think Nelson has managed to create reasonable doubt in the state’s case?

I think so but what will the jury think?

    Char Char Binks in reply to lurker9876. | April 12, 2021 at 5:45 pm

    They should be filled with reasonable doubt, but they were selected for unreasonableness.

    Rocinante123 in reply to lurker9876. | April 12, 2021 at 5:49 pm

    I think he will focus relentlessly on the fact that Floyd repeatedly claimed he couldn’t breathe minutes before being on the ground. Possible cardiac event in the squad and he was a dead man walking from there?

    ugottabekiddinme in reply to lurker9876. | April 12, 2021 at 5:51 pm

    Nelson has done a good job and there’s plenty of grounds for reasonable doubt.
    But will it be enough to overcome the fear from the mob-burning-and-looting that will dominate tonight’s and the rest of the week’s news, either because of the recent shooting or because the mob wants to send the jury a message?
    Plenty of time to scare the jurors enough before sequestration and deliberations begin, to tilt wavering members towards convicting out of intimidation.

    LongTimeReader in reply to lurker9876. | April 12, 2021 at 6:07 pm

    I think when the defense gets to present the limited portions of the 2019 arrest video, it should be pretty compelling to any reasonable jury. GF did too much this time.

      BreenaJohn in reply to LongTimeReader. | April 12, 2021 at 7:23 pm

      Will the jury actually get to see the 2019 video? I thought the judge struck that down?

        LongTimeReader in reply to BreenaJohn. | April 12, 2021 at 8:10 pm

        It was revisited and the judge allowed specific parts of the video to be shown by the defense. He also advised that if the prosecution opened the door on GFs state of mind, the defense would be able to use more of the video. I expect we will see it, particularly the part where he is advised of his life threateningly high BP by the EMT who was summoned to the intake.

The state has actually created reasonable doubt in this case by putting on “expert” witnesses who contradict each other (and sometimes even themselves) on both the cause of Floyd’s death, and the reasonableness of Chauvin’s actions.

LegallyBlonde | April 12, 2021 at 5:59 pm

I thought Tobin would win the most pompous witness award. I thought Smock would win the award for most goofball. But Stoughton was determined to beat them both. And he did. I admire his ambition. Unless Nelson has some real clowns, Stoughton wins those individual awards and the overall prize of most annoying witness.

But let’s not ignore Rich. He brought something special to this trial. He combined ridiculous medical conclusions with the ability to talk to you like you’re a child. It is a rare talent. It was both amusing and patronizing.

Floyd’s brother was a nice touch. I enjoyed his testimony about how George said “hoopin” every single day. Also, he recalled how Floyd wailed “mama” at his mothers funeral. It was nice of him to volunteer that information. But he left out the history of violent, felony crimes. It’s nice of the courts to allow such irrelevant, biased, and emotional testimony.

So the prosecution really nailed it today if their goal was to annoy me and, possibly, the jury with their witnesses.

Midfiaudiophile | April 12, 2021 at 6:03 pm

Stoughton is a weasel, State shouldn’t have called him, and perhaps most importantly they shouldn’t have let Schleicher do his examination, since doing so highlights the contrast in apparent-authenticity and makes the witness look worse by comparison.

I may be in a minority, but I think today was overall a good day for the Prosecution. Personally, I did not care much for Rich or Stoughton – preachy and sanctimonious, but it is not my reactions that count: It is how the jurors are likely to respond to confident, articulate and unequivocal testimony from a Doctor and a Professor. I do not think Nelson had much room to maneuver or recast their testimony and I do not believe he did much to blunt their testimony.
It will be up to the defense witnesses to persuade the jurors that (a) Chauvin’s actions were reasonable given the totality of the circumstances and (b) George Floyd’s health was sufficiently compromised that died in conditions that a healthy person would have survived.
I see no merit in having Chauvin testify..

    StandardMurse in reply to bernie49. | April 12, 2021 at 6:55 pm

    Wouldn’t Chauvin’s testimony be a relatively easy win for the defense? Show the video, ask what he was thinking at the time. They have basically shown that he has an answer for everything and at no point did he say or do anything technically wrong. It closes the loop on totality and state of mind. Lets him explain things like he was trying to stay on the shoulder or he remembered from the police manual that stuff was authorized. The case has seemed like smooth sailing for the defense so far and there is so much doubt then why not have him alleviate the doubt almost completely? Am I missing something? Also, I am not a lawyer so this could be all wrong.

      Mike Wilson in reply to StandardMurse. | April 12, 2021 at 7:34 pm

      For some reason, defendants NEVER testify. All the smart lawyers do it this way (IANAL.) My gut reaction is like you, “what’s the harm, and wouldn’t it help?” But I am sure I am missing something key in how he would get torn up on cross. I just know it’s never done and I’d say it’s 99.99% sure he’s not testifying in this one either.

      ugottabekiddinme in reply to StandardMurse. | April 12, 2021 at 7:47 pm

      I doubt Chauvin will testify. The videos and all the testifying experts so far, and their cross-examinations, plus whoever the defense puts up, will give the jury all it needs to make its decisions. If Chauvin were to testify, it puts his own credibility in issue, so the prosecution could spend a couple days going over every incident in his career that might reflect poorly on him — any iffy arrests in Chauvin’s career, every video deposition he ever gave, questions like did he ever utter the N-word in his life, then rebuttal witnesses after the defense is done contradicting Chauvin– all trying to make the jury hate him. Bad idea.

    Mike Wilson in reply to bernie49. | April 12, 2021 at 7:38 pm

    I think you’re correct on the merits. Both those guys were revolting personalities that nobody would ever want to be around. But, to a receptive jury who was trying to take in “facts” (i’m not saying these guys were correct,) they probably came across just fine.

What was the point of inserting George Floyds brother in the middle today? It seemed like bad timing and really bad placement of this witness. The whole direct examination lasted about 4 minutes.

    I remember someone assuring me in an earlier thread that everything at trial is relevant or the judge would not let it in.

    That is obviously not the case at all. That served no purpose other than to be prejudicial. That sort of testimony should only be allowed for sentencing purposes after a conviction.

    thad_the_man in reply to BreenaJohn. | April 12, 2021 at 7:46 pm

    It’s to get in that “hooping” testimony that no one believes.

Have to wonder if the prosecution coached him to NEVER answer yes/no to a yes or no question on cross. Didn’t matter if Nelson asked him if “is water wet?” This guy wasn’t giving it up.

Can’t blame them- Nelson has spent the last week dunking on state witnesses. Still Nelson laid traps for him to sound like an idiot to the jury and use his recalcitrance against him. I don’t know how the jury will interpret all of this, but several of the state’s witnesses didn’t sound like/experts or professionals, they sounded like people with agendas.

I won’t fault Nelson on this, because I’m betting no attorney in the history of the world has encountered this many “first time” expert/professional witnesses, but he really could have developed a line of questioning more in line to rip their non-experience on the stand apart. However I’m betting he encountered more first timers this past week than he has cumulatively through the rest of his career. Geeze- there were more of these first timers showing up than Kavanaugh rape accusers.

I really wish Nelson had Branca, or someone like him, at his side, despite my appreciation of his coverage and insights.


Font Resize
Contrast Mode
Send this to a friend