Most Read
Image 01 Image 02 Image 03

LIVE: Chauvin Trial Day 12 – Meet the Jury Instructions, Bring On The Defense Case

LIVE: Chauvin Trial Day 12 – Meet the Jury Instructions, Bring On The Defense Case

Both Sides Will Argue for Modifications to Standard MN Instructions

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.

It seems likely that today will see an important inflection point in this trial, with the state resting its case in chief intended to meet the state’s burden to prove defendant Chauvin guilty as charged beyond a reasonable doubt, and the defense beginning the start of its case in chief intended to raise a reasonable doubt in the juror’s minds with respect to the criminal charges.

Interestingly, the defense case in chief is expected to be much more brief, only about three days, in contrast with that of the state, which is now entering its 12th day of testimony.

Once the defense has also rested, it will be time for the jury to receive its instructions on the law from Judge Cahill before they go into deliberations, tasked with arriving at a unanimous verdict of either guilty or not guilty for Chauvin on each of the criminal charges brought against him, and perhaps lesser included charges, as well.

Judge Cahill has indicated that he’s likely to allow closing arguments to take place on Monday, with jury instruction and deliberations to follow immediately afterwards, at which point the jury will be sequestered in deliberations.

Minnesota, like almost all states, has developed a set of standardized jury instructions, and for its criminal courts refers to these as the Criminal Jury Instruction Guide, or CRIMJIG.  Within the CRIMJIG the individual instructions are organized in much the same manner as Minnesota criminal statutes, and each CRIMJIG jury instruction is assigned a distinct identifying number.

As we rapidly approach the point of the jury being instructed I thought it might be helpful to share with all of you the relevant CRIMJIG instructions on the criminal charges in this case. Note that there are also additional instructions, beyond those related to the criminal charges, that the jury will also receive, usually of a more administrative sort—defining “reasonable doubt,” for example. Here, however, I’m focusing strictly on the criminal jury instructions.

I should note, however, that the standardized CRIMJIG instructions are not likely to be the final form of instructions received by the jury.  The standardized instructions are best thought of as the starting point for the final instructions to be used in deliberations.

There is always some modest and contextual modification made to any standardized jury instructions—things like filling in the defendant’s name, the date of the event in question, and so forth.

The parties are free, however, to also suggest more substantive changes to the standardized jury instructions, argue for their suggested changes before the judge.  The reason for allowing such substantive changes is to customize the standardized instructions to best fit the unique factual and legal characteristics of this particular trial.

Indeed, the parties have already done so in motions filed with the court, which I’ve embedded below, and we should expect final arguments on the jury instructions as soon as the parties have rested and before the jury is instructed—all these arguments, of course, taking place outside the hearing of the jury.

Ultimately the trial judge, here Judge Peter Cahill, will decide the final form of the jury instructions, either accepting or rejecting suggested modifications by the prosecution and defense. Just as the jury is the “finder of fact” in a trial, Judge Cahill is the “finder of law,” and the jury is legally bound to apply the law in this case as they are instructed by Cahill. (Of course, practically binding them to this obligation is all but impossible.)

As Judge Cahill makes those decisions on suggested modifications he will also be well aware that standardized jury instructions exist for a reason—those are the jury instructions preferred by the appellate courts—and the more substantive modification he adopts the more likely this case, and his legal decisions, are to be reversed on appeal.  This awareness tends to act as a powerful brake on any judge’s interest in greatly modifying the standardized jury instructions.

You’ll recall that these are the criminal charges in this case:

609.19. Murder in the second degree.

609.223 Assault in the third degree.

609.205. Manslaughter in the second degree.

609.195. Murder in the third degree.

A more substantive discussion of those criminal charges can be found here, Chauvin Pre-Trial Day 1: 3d Degree Murder Throws Wrench Into Jury Selection Process, with additional discussion of the recently modified 3rd degree murder law of Minnesota discussed here, Chauvin Pre-trial Day 4 Midday: 3rd Degree Murder Reinstated, Sixth Juror Seated.

Here are the standardized jury instructions (CRIMJIG) relevant to the criminal charges in this case:

11.24 Murder in the Second Degree—Defined

11.25 Murder in the Second Degree—Elements

11.28 Murder in the Second Degree–While Committing a Felony–Defined

11.37 Murder in the Second Third Degree–Depraved Mind—Defined

11.38 Murder in the Second Third Degree–Depraved Mind–Elements

11.55 Manslaughter in the Second Degree—Defined

11.56 Manslaughter in the Second Degree—Elements

13.01 Assault–Intent to Cause Fear

13.02 Assault–Infliction of Bodily Harm

13.15 Assault in the Third Degree–Substantial Bodily Harm—Defined

13.16 Assault in the Third Degree–Substantial Bodily Harm–Elements

13.30 Assault in the Fourth Degree — On Firefighter, Emergency Medical Service Provider, School Official, Etc. — Elements

13.31 Assault in the Fifth Degree–Intent to Cause Fear or Inflict Bodily Harm–Defined

Here are the defense and prosecution motions on jury instructions, both filed on February 8, 2021. These will be slightly different from the standardized CRIMJIG instructions, modified in whatever way the parties think will be more favorable to them and also to be acceptable to Judge Cahill.   It is likely further modifications will be argued for and against this week, beyond those contained in these February motions.  Helpfully, the defense motion includes reference to relevant CRIMJIG numbers; unhelpfully, the state motion does not:

Defense Motion: Proposed Jury Instructions

LINK: Defense Motion: Proposed Jury Instructions

Prosecution Motion: Proposed Jury Instructions

LINK: Prosecution Motion: Proposed Jury Instructions

Finally, be sure to stay with us on this blog post all day as we LIVE stream and LIVE blog the trial proceedings in real time, and to join us again this evening for our end-of-day wrap-up commentary and analysis this evening.

Here is the LIVE stream of today’s court proceedings:

Here is our LIVE blogging of today’s proceedings:

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

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

Until next time, stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike. He wrote the first edition of the “Law of Self Defense” in 1997, and you can now order the most 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


Schleicher showed desperation in his re-direct, which was very short.

Why the last question about traffic? Situational awareness and environment issues in addition to the growing hostile crowd.

StandardMurse | April 13, 2021 at 5:20 pm

So there is scrapes on his face and scrapes on his shoulder from the prone restraint, but forget the fact that there was no bruising on his back where force was actually applied.

Johnny Weissmuller | April 13, 2021 at 5:22 pm

That happened a couple weeks ago. Robinsdale PD caught a teenage car jacker, Minneapolis PD came & crowd gathered. Instead of using force to get teen in squad, about 20 Hennepin County swat had to come out, then fighting between police & bystanders.

https://youtu.be/tuffNhIq6dg

I’ll take a practical expert witness over an academic, narcissistic theoretician……any day.

Driving (not watching feed, just audio), thought defense expert sounded quite good.
Perhaps just my perception.

StandardMurse | April 13, 2021 at 5:32 pm

Going over all the sidebars, that’s kind of interesting.

StandardMurse | April 13, 2021 at 5:39 pm

What was the deal with the disclosure shennanigans? I have no clue about the legal/court process but it sounded like the state is pretty much acting in bad faith despite the fact that the judge is giving them the benefit of the doubt. I feel bad for Nelson more than anyone else in this trial.

I have totally suffered through the same expert collapse where they are all bravado in the “green room” and then immediately start agreeing to half truths. wrenching

    That’s what I saw happening.

    lurker9876 in reply to Manyburgers. | April 13, 2021 at 5:52 pm

    Except Brod kept saying, “Possible”, “Maybe”, “It could”. He never said, “YES, CHAUVIN DID SOMETHING BBBBAAAADDDD!!!!!”

    The state witnesses did some of it as well and some of them said, “Yes, it’s been known to happen.” None of them could say, “YES, CHAUVIN DID SOMETHING BBBBAAAADDDD!!!!!”

    All I saw was a massive grey area from both sides with nothing concrete. Except for one thing: The MPD materials, Graham v. Connor made it “reasonable, common sense, and objective”.

      Char Char Binks in reply to lurker9876. | April 13, 2021 at 7:39 pm

      Brod is not only supposed to be informative, but persuasive. Agreeing to half truths, and characterizations shaded and slanted by the prosecution, does not help the case. I hope things go better tomorrow.

Defense still needs some strongly supportive medical testimony and testimony of the use and risks of the prone restraint position.. I do not think Brodd was a train wreck, but nor was he a knock out punch. I do think he did just enough to blunt the use of force analysis of the last prosecution witness, Prof. Stoughton.

LongTimeReader | April 13, 2021 at 5:53 pm

Oh, “the” picture isn’t going to come in? The prone restraint hold with the knee use, oy. That’s a tad unfortunate.

Breaking: Motion of Acquittal tomorrow morning!

Court to hear motion on judgement of acquittal tomorrow morning, starting 8:45am CT.

Pro-tip: it will be denied.

DUH!

Midfiaudiophile | April 13, 2021 at 6:02 pm

At this point, does the defense have any alternative but to put Mr. Chauvin on the stand to explain his reasonable thought process during the altercation with Mr. Floyd? Brodd’s collapse puts them in an unenviable position and as you point out the use of force justification is the key issue of the case.

    Mike Wilson in reply to Midfiaudiophile. | April 13, 2021 at 6:11 pm

    not gonna happen. Brodd wasn’t good but he doesn’t torpedo the case.

    bernie49 in reply to Midfiaudiophile. | April 13, 2021 at 6:14 pm

    I did not catch all of Brodd’s testimony. What do you mean by collapse. I saw the redirect and he seemed to be sticking to his guns. I do think his denial of any force in the prone restraint position was a mistake as opposed to a notion of minimal force. It gave Schleicher something to pound on.

      lurker9876 in reply to bernie49. | April 13, 2021 at 6:20 pm

      Brod did not collapse the case. and was sticking to his guns as well as staying in the grey area within the scope of reasonableness, common sense, and objectiveness, the MPD documents, Graham v. Connor. Schleicher did try to pound on but didn’t make a dent.

        fogflyer in reply to lurker9876. | April 13, 2021 at 7:00 pm

        Sorry, but I though Brodd was horrible on cross. Direct was fine, but he did not handle cross well at all. He got totally pushed around.

          lurker9876 in reply to fogflyer. | April 13, 2021 at 8:27 pm

          Half truths does not mean that Yes, Chauvin did a bad thing.

          The cross was seen as a desperation to try and convince Brod that he was wrong but he was not.

          I’m an engineer and engineers do get or give vague answers. Let me tell you a story:

          One of my co-workers, now retired, requested a change to be made to a very critical operations system. The request required approval and signature of a director of this critical operations system. The director asked the requester if he can promise not to bring down the critical operations system. The requestor’s answer is, ‘I cannot promise it. Only God knows what can or cannot happen.”

          And I’ve also given vague answers since I refused to guarantee no impacts to the system. The best I can give is that I expect little or no impact as opposed to “Yes, there will be no impacts to the system.”

          It’s the only way to protect our reputation and credibility.

          Remember Apollo 1? Apollo 13? Columbia? Challenger?

      Midfiaudiophile in reply to bernie49. | April 13, 2021 at 6:23 pm

      He got taken down the garden path by Schleicher and confused some of his concepts (like the difference between intentional pain compliance and control efforts that might coincidentally cause pain) and didn’t effectively fight the cross-examination. Just kept saying “It’s possible”, “Maybe” “Perhaps” rather than even attempting to slip in some explanation. Nadir of the whole thing would be Schleicher: “So, x might be interpreted differently depending on context” Brodd: “It’s possible” (I think that was about Floyd’s complaints about not being able to breathe but I’m not certain).

        lurker9876 in reply to Midfiaudiophile. | April 13, 2021 at 6:48 pm

        Schleicher refused to allow Brod to provide explanations along with his answers. This is in spite of what Schleicher promised Brod that he would be able to explain later.

oppressivemath | April 13, 2021 at 6:26 pm

Rumors on Twitter that Nelson will petition for “full acquittal” (mistrial due to riots?) tomorrow morning. Any chance the riot question is revisited? In what way beyond sequestration?

Most jurors have ALREADY commuted through the burning, mostly peaceful, rubble of “justice” this morning. It will only get worse.

    StandardMurse in reply to oppressivemath. | April 13, 2021 at 6:41 pm

    I found it interesting that despite, from what I understand, it being a mostly procedural motion with no chance of a yes that he asked to wait until tomorrow to address it. Is he hoping for another night of rioting to drive home the point?

      Midfiaudiophile in reply to StandardMurse. | April 13, 2021 at 7:00 pm

      The summary motion to acquit is based on the proposal that the prosecution has failed to satisfy even the most generous interpretation of “beyond a reasonable doubt” burden of proof during their case. That’s why it’s made after the State has concluded its case and before Defense has started its own (Cahill said that he wanted to memorialize the fact that Nelson requested consideration of the motion during the break between sides, but that they didn’t want to extend an already-long trial by breaking for the day when they had several hours left to examine witnesses).

    luckystars in reply to oppressivemath. | April 13, 2021 at 9:20 pm

    Judge refusal to change of venue is cause for appeal if convicted.
    This was obvious to any thinking person. The case should be dismissed now.

Just a computer math guy here. But seemed to me that the prosecution just out-clevered the defense today. Felt like they basically took individual aspects of a larger picture, put them in a vacuum and demanded to know if this was a threat. Was a 17 year old girl with a camera a threat that should have distracted Chauvin? Of course not (not all by herself) but shouldn’t the witness clarify that affirmative answer (or would that be non-responsive?

    StandardMurse in reply to CHTruth. | April 13, 2021 at 6:44 pm

    To me that has been the story of the whole trial not just today. State trying to make it sound so easy and the defense trying to highlight the difficulties of being a cop in crazy situations.

The use of force standard is ambiguous. I think that’s why we’re seeing the experts get manhandled on cross. At the end of the day, the jury is going to defer to the Minneapolis police department’s use of force policies. If Chauvin was trained to use this sort of restraint, he’s going to get acquitted. And the relevant time period is not the entire nine minutes. It’s more like the final three minutes. If the jury thinks Chauvin could have saved Floyd’s life, he’s going to jail for murder. But how realistic is it to expect Chauvin to start performing CPR on a guy who just attacked him?

Officer Chauvin is as light as a feather; his 140 lbs on the Gentle Giant (6’4″, 230 lbs) is nothingness. The Defense would be wise to highlight this disparity.

I had to turn it off. The defense witness was just getting eviscerated, and was walking into obvious traps.

You would think a professional would know enough to to say something when a question does not fit a yes or no template.

I will watch the rest later. But I think there is a really good chance that Chauvin go convicted today. There is going to be a whole lot riding on any medical witnesses the defense calls now.

I will also point out that I find it significant that the only witnesses the defense can get are retired ones, or ones on medical leave who are out of reach of being disciplined or influenced by the MPD, or paid witnesses. While the prosecution has people just volunteering to come mislead a jury for them.

As soon as the defense starts it case it sounds like the audio goes to hell.

Virginia_SGP | April 13, 2021 at 7:21 pm

I expected the defense to make the following points:

1. Both officers and doctors believe that if a person can talk, they can breathe. The fact that Floyd was breathing for at least 3 minutes on the ground, when a person dies of no breathing in ~40 secs, led the officers to believe he was fine. In fact, passing out would make him relax and breathe easier than struggling.

2. Point this out to the jury. Ask them to take a deep breath, hold their nose, and speak intermittently without breathing. See how long you can last (at most 30-45 secs while talking). Thus, any reasonable officer would believe Floyd was breathing due to the talking.

3. A prosecution witness stated that Floyd appeared to have his breathing blocked for 57% of the 9 minutes by the officers. Tobin went on to show that the stores of oxygen would expire in just 4 minutes. But ask the expert what % of the time that a swimmer breathes during a 15-minute distance race or a wind instrument musician breathes while playing a long solo. The point is the transient breaths are more than sufficient to keep supplying oxygen and lung reserves. Not only is this evidence that breathing did not cause Floyd’s death but no reasonable officer could believe Floyd breathes for 4 minutes and then suddenly halts breathing because of the restraint.

4. The prosecution’s medical witnesses actually help here. They are claiming that 5 1/2 minutes into the prone restraint, Floyd was dead and there was nothing anybody could do short of using a breathing bag to reinflate the lungs to bring him back. CPR without oxygen in the blood is no good. So Chauvin’s failure to perform CPR is irrelevant. You cannot be negligent if your actions would have been futile. So lean into either (a) fentanyl caused a cardiac arrest after the meth wore off or even (b) the exertion + pressure restricted the oxygen unbeknownst to the officers, at which point it was hopeless without the paramedics.

5. Brodd actually had a good point but wasn’t sure how much they highlighted it. The prone position is typically a good one, especially for an unconscious person. Once somebody passes out, the recovery position is untenable because the head droops. Another person would have to hold the head which could actually cause an obstructed breathing path. So Floyd would need to be on his back or in a prone position. If he vomited while on his back, that could have restricted his breathing (often cautioned to put drunk unconscious folks on stomach for this reason). So the recovery position made no sense given the medics were called 5 minutes before and were expected to arrive 2 minutes after. Additionally, while conscious, Floyd could and did kick aggressively in the recovery position. You cannot do that in prone as you must lift knees to kick forcefully.

6. I don’t know if this is allowed, but why are they not demonstrating how such a prone restraint doesn’t “kill a healthy person” as one prosecution “expert” surmised. Here is a 10-minute demonstration of virtually the identical position where the host talked during the entire time: https://www.youtube.com/watch?v=5qHLXbVDnkc&t=4528s

Basically, lean into the misconception that a speaking suspect is always a breathing suspect across the police field. Tell the jurors this is a training/knowledge issue pervasive among both doctors and officers. Chauvin shouldn’t be punished for holding that widely-held belief. But right now, a juror is likely to believe the prosecution’s medical doctors on the cause of death. So unless they can make the jury understand why keeping Floyd was reasonable and the observations actually matched what Chauvin expected, I think he could easily be convicted.

    pedanticman in reply to Virginia_SGP. | April 13, 2021 at 7:28 pm

    All of your points, while relevant, sound like points Nelson will drive home in closing arguments using testimony elicited on both direct and cross-examination.

Today should have been a strong one for the defense. I think it ended up being either a draw or a net loss for the defense.

The prosecution’s use of multiple attorneys really paid off today as Schleiter obviously came well prepared to dissect Brodd’s testimony. It worked IMO.

There has been repeated claims (by mainstream media) that Nelson has a “team” of attorneys working behind the scenes. I have yet to see any evidence of that in this trial – in fact the opposite is apparent. It literally sounded like Nelson had to personally edit out the part of the video that showed the Park Officer’s screen with GF’s info on it. A paralegal with basic video editing skills should easily be able to “blur” or put a black box over that part of the video.

To correct this, Nelson needs to hire a video editing service ASAP. He is getting seriously outplayed in terms of technology/exhibits/etc. The prosecution has created all kinds of fancy animated graphics (Dr. Tobin’s entire testimony) as well as timelines, freeze frames of different cameras. This has seriously hurting the defense. The whole point about Chauvin’s knee being off the pavement would easily be resolved with a slo-mo video for a few seconds before and a few seconds after. In fact, it would show how asinine that argument is.

In 2021, we are so used to high-quality media that this might actually be the deciding factor in Chauvin’s conviction or not.

OMG folks, during the Park police officer’s body cam video, did you notice that after Chang told Morries Hall that they called an ambulance for Floyd that Morries Hall says, “Aww fuck, he must be dead.”

Dude knew that Floyd had overdosed!

It’s obvious to me that GF was overdosing after ingesting drugs to hide them from the cops. I believe Chauvin’s intent was to hold him in that position until EMS arrived, thinking they would’ve arrived MUCH FASTER. When GF said I ate too many drugs, I think he was trying to tell them he knew he was in trouble, and feared for his life. However, due to the crowd activity and GF’s previous behavior, he wasn’t taken seriously, and again – EMS will be here any minute. There was clearly no intent to harm him, let alone kill him. I think it would be helpful for Chauvin to testify and explain. Today was not a good day for him.

Did the cops have any discretion not to arrest GF? I thought counterfeit currency was a federal crime.


Font Resize
Contrast Mode
Send this to a friend