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LIVE: Chauvin Trial Day 13 – BREAKING – Motion for Judgment of Acquittal Denied, Defense Case Continues

LIVE: Chauvin Trial Day 13 – BREAKING – Motion for Judgment of Acquittal Denied, Defense Case Continues

Also, state has dumped >5,000 pieces of evidence on defense during trial

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.

Today, the 13th of this trial, the defense presents the second day of its case in chief to the jury, in its effort to create a reasonable doubt in the minds of the jurors as to the criminal charges for which Chauvin is being tried.  As always, we’ll be LIVE streaming and LIVE blogging the court proceedings below.

At the end of court yesterday, after the jury had been excused for the day, the lawyers and judge did some legal housekeeping on some of the exhibits—the non-testimonial evidence in court such as videos, photographs, graphs, training manuals, and reports—which was, as one might expect, rather boring to watch.

A couple of points were made during those discussions that I thought worth sharing with all of you, however, before today’s proceedings start.

Court to Heart Motion for Judgment of Acquittal This Morning

The first item of interest is that at 8:45am CT this morning the court will be hearing motions (requests from the parties) in this case, and one of those will be a motion of acquittal submitted by the defense.

As some background, when a prosecution rests its case in chief there is a theoretical possibility that even if everything the state said was accepted as true by the jury, that a rational guilty verdict would still be impossible.

One such scenario would be where a charged crime has, say, four distinct elements, each and every one of which must be proven beyond a reasonable doubt—but the state completely forgot to present evidence on one of those required elements. Meaning, there is literally zero evidence in court on that element.

Well, the only purpose of the jury is to be the “finder of fact,” to evaluate evidence. If there is literally no evidence on an element of the charge, then there is nothing for the jury to consider. And in that case, there is no rational basis on which the jury could conclude that element of the charge was proven beyond a reasonable doubt.

And if that’s the case, as a strictly technical legal matter, no jury could find that the criminal charge as a whole was proven beyond a reasonable doubt.

In such a case, it would be appropriate for a trial judge to grant a motion for acquittal submitted by the defense, and end the trial right there with a judge-ordered “not guilty” verdict for the defendant, taking the matter entirely out of the hands of the jury.

We’ll hear that motion for acquittal from the defense in the Chauvin trial this morning.

And Judge Cahill will almost certainly deny that motion, because the prosecution in this case did not commit the blunder that would be required for the granting of such a motion to be appropriate.

We may not like the evidence the state has put forward on the elements of the criminal charges in this case, we may think that evidence weak or self-contradictory or paid for or lies or whatever—but there is evidence to consider, and so long as that’s the case deciding the weight and credibility of that evidence falls within the province of the jury, and they will not be denied the opportunity to carry out their “finder of fact” role in this trial.

Also to be considered if only for practical purposes, of course, is whether any judge presiding over this case would be willing to take the political consequences of having taken the decision from the jury and handing an acquittal to a person that much of the body politic in his jurisdiction believes to be a RACISTPOLICEMURDERER!

That said, there are multiple charges in this case, and it is theoretically possible that the judge could grant a judgment of acquittal on some of those charges and not others. That might diminish some of that political pressure without entirely taking the case out of the hands of the jury.

Personally, I don’t expect that to happen either.

I will also note that the timing of the hearing of this motion is rather odd.

Normally a motion for a judgment of acquittal is heard immediately after the state has rested its case in chief, and before the defense has begun to present its own case in chief.  That didn’t happen here.  Obviously, the defense began to present its case in chief yesterday, and the motion is only being heard this morning.

Also normally, if the defense doesn’t submit a motion for acquittal before it starts to present its own case in chief, then the window to do so is considered to have closed—the motion will be denied by the court not on consideration of its merits, but simply because the motion is no longer timely. The defense is deemed to have missed the deadline.

In yesterday’s closing meeting with the parties, however, Judge Cahill made clear that he had instructed the defense to dive right into its case in chief in order to make most efficient use of the time of the jury.

At the same time, he’d also given his word that the defense would have the opportunity to have their motion for acquittal heard outside the hearing of the jury later in the proceedings, and without having to be concerned that the motion would be deemed not timely.

And that’s where we are on that matter this morning.

Over 5,000 Discovery Items Dumped On Defense DURING Trial

Another interesting mention in yesterday’s “housekeeping” meeting with Judge Cahill came up in the context of the number of disclosures and exhibits that have been dumped on the defense in this case—a large chunk of which have been dumped on the defense even as the trial was taking place.

As background, there are always materials collected by the parties that ought to be shared with the opposing counsel as part of discovery.

Under Minnesota procedure, each item is labeled with what’s called a Bates stamp, a unique identifying number, and then a bunch of these are collected together and delivered as a “disclosure.”

Ideally, by the time a trial actually starts both sides will have long since received the other’s disclosure items, early enough to have time to consider and research them before the trial begins.

That has not been the process in this trial, particularly with respect of state disclosures to the defense.

When this trial began, the state had already delivered to the defense 41 disclosures consisting of 45,118 Bates stamped items.

If that sound like a lot, that’s because it is.

But the disclosures of the state did not stop there, as one would normally expect. Indeed, not even close.

Since the start of the trial—in other words, while the sole defense attorney Nelson has been occupied the entirety of every day in trial on this case—the state has continued to deliver disclosures to the defense, each containing a great many Bates stamped items.

Indeed, since the start of the trial the state has made 12 additional disclosures to the defense, consisting of 5,154 additional Bates stamped items.

Yes, that’s 5,154.

Yesterday was the 12th day of this trial.  That works out to the defense having to review newly delivered Bates stamped items at an average of 430 per day.

That’s 430 newly delivered Bates items per day.

That, folks, is not normal.

The defense raised this issue yesterday afternoon in the context of anticipated cross-examination of defense experts by the state today.

Much of the most recently delivered discovery consists of materials that could be, certainly will be, used in an attempt to impeach those defense experts.

Given the delivery of this discovery so late in the course of the trial, and the volume of the material, the defense is asking the court to order the prosecution to disclose in some detail exactly which of those newly disclosed exhibits it actually intends to use to impeach.

The judge asked the prosecution to do so, to the extent they reasonably could, which strikes me as completely ineffectual solution to this real problem for the defense.

I expect the real reason the defense raised this issue on the record was, well, to establish it as an issue on the record for purposes of appeal.

 

OK, folks, that’s it for early morning content, now I’ll turn to the day’s LIVE streaming of court proceedings, as well as our LIVE blogging throughout the day.

Here’s the LIVE streaming of today’s proceedings here:

And here’s our LIVE blogging of today’s proceedings:

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.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike. He wrote the first edition of the “Law of Self Defense” in 1997, which you can now order in its current edition for just the price of shipping and handling by clicking here.  To know YOUR state’s use-of-force laws in an actionable way that will keep you safer physically and legally, take our state-specific advanced use of force class either streamed online or via a shipped DVD with a 100% no-question- asked money-back guarantee, here:  Law of Self Defense State Specific Use-Of-Force Class.

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

 

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Comments


Nelson moves for acquittal

Kiss that idea goodbye

Nelson is correct in his argument.

I doubt Carhill will accept the motion.

    lurker9876 in reply to lurker9876. | April 14, 2021 at 10:00 am

    Did not like Carhill’s rationale:

    Unlike jury which looks at evidence in impartial way, court obligation is to look at evidence in light most favorable to the state.

    Doing that here, if jury gave greatest weight to state evidence, could convict beyond a reasonable doubt.

    But if I were a member of this jury panel in peaceful times, the state failed to prove its case beyond reasonable doubt.

    Carhill must really want Chauvin convicted or is he simply following the state law or Keith Ellison’s laws?

      AnAdultInDiapers in reply to lurker9876. | April 14, 2021 at 10:48 am

      Cahill’s not saying that the court proved its case beyond reasonable doubt. He’s stating that if you choose to believe specific testimony from specific witnesses, while disregarding conflicting evidence (presented by the defence or otherwise) then a case for guilt has been made.

      The jury have the right to do exactly that (as stupid as it would be) and so must be allowed to deliberate and provide their verdict.

      ekpyros in reply to lurker9876. | April 14, 2021 at 11:06 am

      The idea is that, if the jury were to believe every single piece of evidence and all of the testimony from the state’s case, could they convict? It’s a very, very high standard—and therefore it’s extremely unusual for the judge to dismiss.

      Think38 in reply to lurker9876. | April 14, 2021 at 1:18 pm

      Carhill used the correct standard: evidence should be viewed in light most favorable to the state. If the state has not proven its case with that light, then a reasonable jury cannot convict, and the charges should be dismissed. If the state has meet this (low) burden, then the trial should continue, and the jury should have the opportunity to decide.

LongTimeReader | April 14, 2021 at 9:59 am

Opinion is evidence, eh? Seem like a dangerous concept.

    Dathurtz in reply to LongTimeReader. | April 14, 2021 at 10:25 am

    It seems like the informed opinions of a true professional, with a spoken rationale to support their opinion, should carry weight.

    What is the mechanism to prevent an attorney from paying a credentialed charlatan to mislead a jury? That seems to be a significant issue every time I pay attention to a trial.

    Opinion or court-recognized expert witness is evidence.

    Opinion of fact witnesses is not evidence.

      LongTimeReader in reply to Andrew Branca. | April 14, 2021 at 10:29 am

      I should have been more detailed. Opinion in absence of any seeming hard fact seems dangerous. If it is, it is. Seems like no one should ever be acquitted, then.

      thetaqjr in reply to Andrew Branca. | April 14, 2021 at 10:44 am

      So, what is the meaning of the following claim by Judge Cahill? I thought judges were to be as impartial as the jurors are supposed to be.


      “Unlike jury which looks at evidence in impartial way, court obligation is to look at evidence in light most favorable to the state.”

        James B. Shearer in reply to thetaqjr. | April 14, 2021 at 11:16 am

        ““Unlike jury which looks at evidence in impartial way, court obligation is to look at evidence in light most favorable to the state.””

        That’s the legal standard for a judgement of acquittal (which is intended to be difficult to meet). If even when you look at the evidence in the light most favorable to the prosecution the state still hasn’t proved their case then you as the judge can issue a judgement of acquittal. Most cases are expected to go to the jury.

        This also comes up in civil cases where a summary judgement can be issued when there is no “issue of material fact”. Which means that even if you accept one side’s version of what happened completely they still don’t have a case under the law.

        Milhouse in reply to thetaqjr. | April 14, 2021 at 12:04 pm

        The court’s impartiality means that when considering any motion it must consider it in the light most favorable to the other party. So the defense moves to dismiss because the prosecution has not made any case for it to answer; the judge must look at the prosecution’s evidence in the most favorable light, and consider whether even considered in that light there is no there there.

        Until Tobin’s testimony that was the case. There was literally nothing on which a jury could convict. It wasn’t that the state’s evidence of guilt was weak or implausible, it hadn’t even presented any evidence that, even if the jury completely believed it, would let it find guilt beyond reasonable doubt. Tobin, however, supplied that. If the jury chooses to believe Tobin and disbelieve any witnesses that contradicted him, then it can find guilt. So on the defense motion the judge must assume the jury might do that, and therefore he must deny the motion, even if he personally found Tobin implausible. His opinion of Tobin’s plausibility is irrelevant, because he’s not the judge of that.

        Similarly on any prosecution motion he must consider the evidence in the light most favorable to the defense.

        PGiddy in reply to thetaqjr. | April 14, 2021 at 3:01 pm

        Translation: “We don’t want no riots.”

Anti defense rulings– surprise surprise!

    MattMusson in reply to Smooth23. | April 14, 2021 at 2:09 pm

    Meanwhile, the Prosecution drops thousands of items on the Defense during the trial so the entire Defense team must stay up late every night. It is a deliberate attempt to wear down the defense so they are not sharp in court.

Hall’s attorney is a public defender, correct? How is she being used in a case where he hasn’t been charged?

Trial by combat would be a superior way to determine the truth than this farce.

does Cahill have any balls, he just lets the state walk all over him and nelson every day. letting the state submit discovery during a trial once is shady enough but to allkow it on an ongoing basis is prejudice on his part. It’s not like nelson is adding witnesses to the list at the last minute
nelson should have demanded delay the first time it happened, and if he didn’t get it, he should have claimed illness or family emergency and will inform the judge when he may be available to resume the trial.

The Bates issue may explain what happened with Brodd yesterday during the cross. The state was not allowing Nelson enough time to prepare the defense witnesses. The state had money but not Chauvin. That MPD legal fund must not be enough.

    Char Char Binks in reply to lurker9876. | April 14, 2021 at 4:00 pm

    I agree.

    Before the trial started, the state wanted to delay, and data-dumped Nelson ever since. If the state wasn’t ready, it shouldn’t have filed charges until it was ready, which, given the evidence, would have been never.

Can’t Hall be granted immunity for his testimony? Who would grant him immunity (Judge? Prosecutor?)

As a matter of justice it would seem to be the right thing to do.

South african pathologist

not likely to get attacked by BLM

StandardMurse | April 14, 2021 at 10:41 am

This guy has all the right credentials. Was able to say FBI, Johns Hopkins, Chief of something, and an intelligent sounding accent to boot. Should be interesting.

Mr. Branca, am I wrong or did Nelson bring motion for acquittal after he started defense witnesses. I mean, IMHO< he had a much stronger case at close of State's case (which is when these are usually brought). So why not then?

5,000 pieces of evidence, DURING the trial? Can the defense ask for a delay while they process and study this evidence?

    geronl in reply to geronl. | April 14, 2021 at 11:02 am

    Seems like grounds for a mistrial to me.

    Think38 in reply to geronl. | April 14, 2021 at 1:23 pm

    At what point does Nelson have a point to make about the large volume of material being intended to harass the defense and compromise the ability to conduct the trial? Wouldn’t an appropriate remedy from the judge be to bar any of the new exhibits/materials without some sort of showing why the material should be allowed? The volume and facts speak for themselves.

Would like to ask prosecutors if you believe that Chauvin was the “murderer” why won’t you give Hall immunity on all charges related to being in the car or possibly selling drugs to George Floyd?

The double posting is kind of annoying, the software needs an upgrade I guess

“Fowler used a panel of other forensic pathologists, also behavioral health, pulmonologists, ER physicians, toxicologists, also present on team.

Somewhat odd approach, without those others testifying.”

Maybe best use of the money as well as proof of consistency and to protect the identities of all team members so that they will not be doxxed and assaulted?

    StandardMurse in reply to lurker9876. | April 14, 2021 at 10:55 am

    An anonymous panel of multiple doctors and multiple disciplines seems like an extremely common sense solution to the quackery seen in this case.

LongTimeReader | April 14, 2021 at 10:55 am

I was hoping to go the rest of the trial and not hear from Blackwell, seems we are going to be blessed with him for cross. His tone, even with his own witnesses grates on me.

Irrelevant to the facts, but a British accent seems to add an element of authority and credibility.

Carbon monoxide! Can the prosecution now claim that Floyd was held too close to the running vehicle’s exhaust pipe?

    StandardMurse in reply to BillD. | April 14, 2021 at 11:16 am

    I winced because I thought he was meaning to say carbon dioxide and was mis speaking, then I realized that he meant monoxide and that opened up a whole different can of worms in my head.

I’m not sure this line of questioning about the death certificate is worth the time. Either the jurors are rational and can already see what he’s saying, or they’re not and probably voted for Biden.

AnAdultInDiapers | April 14, 2021 at 11:16 am

Vehicle exhaust is a factor the prosecution tried to negate through a question regarding the power source for air conditioning in a hybrid vehicle.

If the engine was running then it’s reasonable to consider it a factor, but if I was on the jury I’d be looking for positive evidence that it was running – e.g. exhaust fumes in one of the multiple videos.

A refresher of a college course on biology?

    Smooth23 in reply to lurker9876. | April 14, 2021 at 11:29 am

    I think you underestimate the ignorance of the general public on basic physiology and biology.

      lurker9876 in reply to Smooth23. | April 14, 2021 at 11:35 am

      Yeah, among all other topics except social media, such as tiktoc, instagram, snapchat, facetime. In this case, I was underestimating the ignorance of the jury panel. This doctor is interesting and very detailed. He’s very good. I don’t see how the state can do well in the cross. Do you?

        Smooth23 in reply to lurker9876. | April 14, 2021 at 11:38 am

        They will ask the same questions they always ask. More of the same. They’ll also go wildly off scope, without any objection from Nelson.

I believe that he was held at the left front tire. Fluid would have been a result of condensation from the air conditioner rather than from exhaust. Carbon monoxide from passing vehicles, leaky exhaust system, vehicle exhaust carried by the wind from the rear exhaust?

“Orderly contraction of heart. Two chambers, atria, receive blood, venrticles pump blood under high pressure to body. Two on each side, on side to lungs, other side to body. Atria contract and push blood into ventricles to fill them up, then ventricles pump blood out. Valves to prevent backflow.”

Ah…I see him reference lungs, which in GF’s case, his lungs were filled up with fluids. Just wait.

StandardMurse | April 14, 2021 at 11:40 am

Nelson is getting his money’s worth this guy, but this guy is almost too smart and finds a round about way to get to his answers. I believe this guy way more than Rich though. Cross will be interesting.

Does the jury get to know that Hall was called but took the 5th in order not to testify? Or is his appearance completely scrubbed as if it never happened?

    Smooth23 in reply to Mike Wilson. | April 14, 2021 at 11:48 am

    I think the judge has decided it will be completely scrubbed, because he is pro prosecution. Undeniable at this point.

      CalmMantis in reply to Smooth23. | April 14, 2021 at 11:56 am

      The State also has the ability to grant Mr. Hall immunity to any potential 3rd degree murder charges in relation to his proximity to GF that day. Of course they would decline to do so given the damage Mr. Hall’s testimony could do to their case. Just another example of how much power the State possesses when they want a certain outcome in a case. Not to mention the now 3 days of unrest in the city due to an “unrelated” case.

        TargaGTS in reply to CalmMantis. | April 14, 2021 at 12:26 pm

        Is there any potential federal criminal exposure for Hall, though? Not being argumentative, I really don’t know. But, it seems that admitting under oath that you’ve distributed a Schedule III narcotic, you’ve likely violated at least one federal law, if not more. So, they would perhaps need the Biden Administration to grant immunity as well.

      REDACTED in reply to Smooth23. | April 14, 2021 at 1:58 pm

      careful, the LI pearl clutchers will down vote you

I would propose a change to our criminal laws regarding letting a judge decide if, after the State’s case, a prosecution should continue.

Rather I would propose a law to the effect that after the State presents it’s case the jury would vote on whether there is enough evidence for them to render a guilty verdict. If unanimous ‘no’ case is over and defendant not guilty. If one ‘yes’ defense proceeds.

Mention of carbon monoxide gives the prosecution more material for cross – another way in which carelessness by the police contributed to Floyd’s death..
This appears to be very unfortunate for the defense.

    allmenroder in reply to BillD. | April 14, 2021 at 11:59 am

    Carbon monoxide is lighter than standing air, So, laying down would actually put you out of the rising column of CO. And, the CO if contributing to the deceased, would also more than likely had an effect on the officers nearby. If fact, one could make the argument that since CO is lighter than air, someone standing would be in greater danger than someone prone.

      The exhaust is forcefully expelled. If Floyd is in the path of the exhaust (and I don’t know if he was) the fact that CO is lighter would be irrelevant. Other factors include the fact that CO will also dissipate (not all rises immediately like air bubbles in water) and that some portion of the CO will be unable to rise, possibly pooling under the vehicle.

      PGiddy in reply to allmenroder. | April 14, 2021 at 3:13 pm

      I’ll start my vehicle and you can lay down with your face behind the exhaust pipe and we’ll test your theory, just like Steven Crowder did with the 9 minutes on the neck 😉

Why couldn’t they have found a guy like Fowler as a use-of-force expert?

In fairness, Brodd’s performance in the Jason Van Dyke trial seemed substantially better (although van Dyke was convicted). He also looked very different, I think largely due to the angle and lack of goatee—with no resting-bastard-face.

Here’s the direct—cross starts around 17:30 but for some reason he’s entirely off-camera:

https://youtu.be/OoO_buv7H4I?t=201

    ekpyros in reply to ekpyros. | April 14, 2021 at 11:56 am

    Worth noting that the jury is actually to the left of the witnesses—so their perspective is completely different than that of the camera.

      thetaqjr in reply to ekpyros. | April 14, 2021 at 6:05 pm

      Can you explain How you know the political preferences of all 15 jurors?

      I’d like to read all about those folks.

StandardMurse | April 14, 2021 at 11:54 am

Listening to talking heads, apparently Dr. Fowler is subject to a lawsuit of covering up a death in 2018 and they are saying that is fair game in cross.

    Samantha in reply to StandardMurse. | April 14, 2021 at 12:05 pm

    I read that–I wondered if that lawsuit was filed intentionally to discredit Fowler prior to testimony –young man died in police custody and family did not like cause of death not attributed to police and asserted cover up.

Wow! This guy has all the right credentials and experience. He sounds like a true pro (and the accent doesn’t hurt!)

We’ll see how the rest of the direct and cross goes, but he seems to be delivering exactly what the defense needs.

I suspect he will be difficult to cross because he claims experience in testifying in 100s of trials.

StandardMurse | April 14, 2021 at 12:09 pm

Also from MSM talking heads, 3 jurors are were not likely paying attention to the witness. The pool reporter notes mention multiple jurors looking at and picking at their nails and one swiveling back and forth in their chair.

    bernie49 in reply to StandardMurse. | April 14, 2021 at 12:16 pm

    Sign of cognitive dissonance? Inattention to an argument/facts that is counter to your beliefs or preferences – like switching off the TV when your team is losing.

    Smooth23 in reply to StandardMurse. | April 14, 2021 at 12:17 pm

    Doesn’t really matter. I’m bored at this point too. They’ve all made up their minds at this point.

    StandardMurse in reply to StandardMurse. | April 14, 2021 at 12:23 pm

    I have to wonder if that was part of the state’s strategy. It has been mentioned that many of their witnesses were redundant, was that on purpose so that by the time they got to defense the jurors would be tired of hearing the heavy testimony? Is that a thing?

    kak185ttx in reply to StandardMurse. | April 14, 2021 at 12:29 pm

    3 jurors already made up their mind. Would be interesting which jurors these were.

    thetaqjr in reply to StandardMurse. | April 14, 2021 at 6:36 pm

    “ … jurors are were not likely paying attention to the witness …”: if that were true and persistent, in the judge’s opinion, what measures could he take to remedy?

    Can he reprimand, and afterwards dismiss the juror in favor of a more focused alternate?

This witness is having a hard time not saying ‘you idiots can read it for yourself’

The CO theory is BS, Floyd was losing oxygen several minutes before he was on the ground.

the loss of O2 was caused by the fluid in the lungs which prevented the exchange of oxygen through the alveoli air sacs in the lungs

    BillD in reply to Joe-dallas. | April 14, 2021 at 12:35 pm

    The CO theory is only offered as a contributing factor. Seems reasonable as such.

      Joe-dallas in reply to BillD. | April 14, 2021 at 12:55 pm

      CO would be a very insignificant contributing factor, New up to date vehicles spew very little CO at idle, It was hybrid, so it was barely running. should zero or near zero NO2 with a functioning CAT, Though it was a police vehicle, so it would have lots of operating hours even if only two years

      PGiddy in reply to BillD. | April 14, 2021 at 3:14 pm

      “Reasonable doubt”

    lurker9876 in reply to Joe-dallas. | April 14, 2021 at 12:36 pm

    Yes, but since the state objected to Nelson’s questioning on CO, it became obvious that the state was going to attack Fowler on the cross over his comments about CO. So Nelson prepared those questions.

    I’m surprised Nelson has not brought up fentanyl yet. Hopefully, that will come later.

    Also, I wonder if those 3 jurors are black.

    StandardMurse in reply to Joe-dallas. | April 14, 2021 at 1:30 pm

    CO could exacerbate any lack of oxygen situation that was going on in the body, be it heart attack, pulmonary edema, or partial strangulation. Ironically the only way CO wouldn’t be a factor is if the airway was completely closed off. As you pointed out, the car may not have been spewing a lot of CO. I think there was also a point made that the blood was not tested for carbon monoxide, which creates doubt as to any other causes in my mind and what else was missed. This is almost similar to the defense having to point out that they had to go back and search the car because the evidence folks somehow missed pills in open view in two different vehicles when a victim had a fentanyl concentration that could have been lethal.

Fowler was retained by DOJ/US Attorney in the Kendrick Johnson case to rebut the junk private autopsy commissioned by Benjamin Crump.

https://www.ajc.com/news/local/kendrick-johnson-case-evidence-innuendo/gLJDq4T54M1KpROsIrwnUM/

The lawsuit against Fowler is up for 12 (b)(6) dismissal or summary judgment for the defense in the alternative. You won’t hear the fake news media tell you that part.

Black et al v. Webster, IV et al, 1:20CV03644

I predict the jury will convict, not based on testimony or evidence presented, but due to media pressure or already having their minds made up.

No matter what the jury finds there are multiple avenues for appeal, first being change of venue denied. Now they are commuting to the court through riots. sheesh

Dr. Fowler may be the main reason why Nelson did not object as much as some people said he should have.

    Smooth23 in reply to lurker9876. | April 14, 2021 at 12:56 pm

    Perhaps. He certainly is destroying credibility of state’s experts. But that is just one person’s opinion.

      lurker9876 in reply to Smooth23. | April 14, 2021 at 1:03 pm

      Except his opinion came from a team of experts as stated earlier this morning. It was NOT one person’s opinion but an opinion of a team of experts.

This is amazing, this medical witness may be the key to getting Chauvin acquitted, he’s just showing all these studies that say the position doesn’t have a significant effect on physiology and he’s destroying all the other witnesses.

By the way, this was the exact study I cited a couple of days ago on Legal Insurrection:

https://legalinsurrection.com/2021/04/live-chauvin-trial-day-9-states-evidence-begins-to-align-with-the-defense-narrative-of-innocence/comment-page-1/#comment-1155106

    lurker9876 in reply to oogabooga. | April 14, 2021 at 1:04 pm

    Wonder if this study cited the events from many years ago around 1400’s and 1500’s as stated by one poster here.

fowler testimony – “Using single knee technique mostly, other knee on bicep, or close to chest wall, so less than 23%, but even if applied both knees would have transferred 23%, about 30-35%.”

That is consistent with Statement by Kevin–” where by put his knee on bathroom scale to test his transfer of weight. his weight was approx 25-30lbs

    Whiskey Sam in reply to Joe-dallas. | April 14, 2021 at 2:07 pm

    It’s a little late in the game now, but everyone should do the knee experiment at home on a bathroom scale. When I did it, I found that (at 180lbs) biasing my weight to the right side, left knee down, left foot up, I could comfortably remain in that position with 15-20lbs on the scale. With the foot down, I had absolute full control of the knee. I could keep in on the scale at less than 2lbs, or shift my weight left and put upwards of 100 on the scale.

    The knee “could have” caused Floyd. But the state hasn’t offered anything approaching “proof” that it did.

      thetaqjr in reply to Whiskey Sam. | April 14, 2021 at 7:21 pm

      We’re you drinking whiskey when you were performing?

      In fact, I posed a similar experiment I’d performed near the beginning of the trial, I even ventured to use the word “ripe” to describe a Zimmerman- type demonstration before the court.

      Performed on a dummy, of course, … preferably with a juror or two executing the restraint position.

      Somebody ought to explain how the 45* angles resolve into horizontal and perpendicular components, some engineer hereabouts.

Hanging all my hope on the juror who is a nurse being able to explain this to the others. I don’t know how she could, in good conscience, vote guilty.

    Smooth23 in reply to BDRAC. | April 14, 2021 at 1:07 pm

    perhaps her brain is addled by a year of traumatic covid tik toks.

      lurker9876 in reply to Smooth23. | April 14, 2021 at 1:10 pm

      The nurse may be more familiar with COVID’s respiratory issues?

        StandardMurse in reply to lurker9876. | April 14, 2021 at 1:19 pm

        COVID is a pretty specific disease process. I worked COVID for about the last year but even I think the argument of proning patients to help their breathing is kind of worthless. The nurses understanding of any of these issues would be based on experience, not all nurses are created equal in terms of knowledge.

    StandardMurse in reply to BDRAC. | April 14, 2021 at 1:12 pm

    I am a nurse with a fair amount of experience and this is a lot of information that I would not feel wholly comfortable explaining to other people. I know that Dr. Rich was a complete quack based on his testimony and would put very little weight on that. All the other testimony seems like drinking from a fire hose, even with medical knowledge beyond the average person. It is also important to note that like any other medical professional, nurses can tend to be very specialized. It is possible this nurse has worked a lot in a primary care clinic and doesn’t necessarily understand a majority of this stuff whereas an ER or ICU nurse with a fair amount of experience would be likely give a medical examiner a run for their money when discussing general physiology. This guy comes off as very knowledgeable and straight forward, but I also somewhat bias. It is also important to note that in my experience the nursing profession is filled with left and right wing extremes. In my informal poll of my hospital floor nurses were split about 80/20 with 80% being 100% convinced Chauvin was guilty.

      luckystars in reply to StandardMurse. | April 14, 2021 at 1:37 pm

      And the nurses based that opinion on one still shot of Floyd on the ground near the gutter.

      thetaqjr in reply to StandardMurse. | April 14, 2021 at 6:47 pm

      A number of posters continue to refer to the physicians as “quacks,” or they refer to their having practiced “quackery”

      My notion of what it takes to be a quack seems all wrong.

        StandardMurse in reply to thetaqjr. | April 14, 2021 at 7:28 pm

        I watched Dr. Rich call the act of working out ischemia, he was a quack. Tobin stating that he could determine the exact moment when GF didn’t have enough oxygen in his lungs based off of bogus EELV calculations, total quack. I think the ME and the woman prior weren’t necessarily quacks but had a varying opinion and political pressure that maybe forced their opinions, so maybe not quacks, but not exactly honest. You will rarely see a doctor speak in absolutes the way these “experts” have without actual data to back them up. I have literally seen cancer docs not deliver an actual diagnosis of cancer to a patient because they didn’t have the necessary lab work needed to prove beyond a reasonable doubt, but stated outside earshot of the patient that they were 99.9% sure the patient had cancer. The broken and fraudulent expert witness process has been one of my biggest take aways from this trial

          thetaqjr in reply to StandardMurse. | April 15, 2021 at 10:38 am

          You’re defining “quack” as a physician with whose remarks you disagree. If that’s right, that makes you a quack from their perspective.

          Tobin and Rich? Have you looked at their CVS? It would be news to the administrators of the top flight hospitals that employ them that they’ve been snookered for several decades, paying those two quacks their way through thousands of patients, putting those lives at risk on a daily basis.

    StandardMurse in reply to BDRAC. | April 14, 2021 at 1:24 pm

    The nurse, as part of being selected, stated that she would not act as an expert during the deliberation, for whatever that is worth.

NOTIMPORTANT | April 14, 2021 at 1:07 pm

CO angle makes no sense to me. For all intents and purposes Chauvin was exposed to exactly the same thing since his head was within a couple feet of floyds.

    lurker9876 in reply to NOTIMPORTANT. | April 14, 2021 at 1:12 pm

    Fowler did explain that. The officers, including Chauvin, were 3 to 4 feet away and not impacted. Of course, Schleicher will attempt to disprove that with a single still frame.

    So now he’s destroying Tobin’s credibility and testimony. No wonder Blackwell is objecting.

    StandardMurse in reply to NOTIMPORTANT. | April 14, 2021 at 1:15 pm

    He mentioned how in the studies reactions to different CO concentrations were noted. GF was specifically susceptible based on his pre-existing conditions.

    Observer in reply to NOTIMPORTANT. | April 14, 2021 at 1:45 pm

    Chauvin and the other cops didn’t have severe coronary artery disease and hadn’t just swallowed a bunch of speedballs, like Floyd had. The doc explained that the same amount of carbon monoxide will affect different people differently. Floyd was much more vulnerable than the cops, even from a relatively small amount of CO.

Chauvin has been writing continually, it appears. Might he have been offered a book deal?

    PGiddy in reply to BillD. | April 14, 2021 at 3:18 pm

    That’s a great point I hadn’t thought of. He’s going to need the royalties to move his family far away if he’s acquitted.

To my semi-trained mind, this witness seems to be doing very well for the defense. Better than Brodd, certainly.
We’ll see how cross goes, but the strength of this testimony seems to be sufficient to raise reasonable doubt.

Would have been nice to discount the manner of restraint.

    lurker9876 in reply to BillD. | April 14, 2021 at 1:48 pm

    Agreed but the restraint started from the time GF was put in handcuffs to the time he was put in the ambulance. Fowler discredited the use of knee use with or without weights entirely. He and his team of experts from NAME based on the CDC guidelines, other studies such as Kroll, Demaio/Meilo (sp), concluded “undetermined”. Which could also mean that GF could die due to his co-morbitities and drug abuse.

      BillD in reply to lurker9876. | April 14, 2021 at 2:32 pm

      I just wish that he had specifically said that the prone position played no part. Pull it together for those jury members unable (or uninterested) to do so.

So now the prosecution gets to have more prosecutorial witnesses.

    thad_the_man in reply to Chewbacca. | April 14, 2021 at 3:07 pm

    They always get to put on a rebuttal case after the defense, but it is limited to addressing testimony of defense witnesses.

Hmmm, so now the state is upset about disclosure?

    lurker9876 in reply to CalmMantis. | April 14, 2021 at 1:43 pm

    So they were complaining about Fowler’s comments about a few state witnesses, such as Tobin? Was that the unnamed witness?

Fowler testimony at end of direct – interesting conclusion on final determination as to cause of death – “indeterminable – too many factors to be able to reach conclusion”

That may carry more weight that the a conclusion that death was definitely caused by “x” or caused by “y”

    Joe-dallas in reply to Joe-dallas. | April 14, 2021 at 1:40 pm

    Probably more believable than the State’s cardiologists and pathologists that claimed that drugs had zero effect on the cause death. That position would normally be considered absurd .

      Whiskey Sam in reply to Joe-dallas. | April 14, 2021 at 2:12 pm

      I don’t know if any of what we’re seeing will matter to this jury. But if I were in the jury box, the state’s paid witnesseses saying that the combination of fentanyl, meth, blocked arteries, pulmonary edema, and resisting bore no role in his death would be a huge red flag to their credibility. But then, I know real experts don’t make statements like that. Only hacks do.

      Will the jury notice is another question entirely.

        LAalldayLady in reply to Whiskey Sam. | April 14, 2021 at 5:00 pm

        Just saying, all those factors are not on trial; Chauvin is. This is why weight of knee pressure IS important, also pointing out no bruising on neck or back. Doubt must be specific to Chauvin’s actions.

          thetaqjr in reply to LAalldayLady. | April 14, 2021 at 7:27 pm

          Seems to me the defendant would not be on trial at all without the factors that placed him before the court.

          Seems to me it would be difficult to judge Chauvin without making a judgement on those factors.

          I could be wrong.

It strikes me that Fowler’s humility—acknowledging so many complications and contributions—strikes the perfect note.

The state’s witnesses claimed to know precisely the weight put on specific parts of Floyd’s anatomy, and asserted it was impossible that he would have died absent those pressures.

The jury knows that all experts are paid—and Fowler came off as fundamentally more honest by not pretending to know the precise contributions. His testimony, even though he somewhat disagreed with the precise cause, actually jibes best with the MN ME’s findings.

Exceedingly credible and perfect for reasonable doubt.

Let’s see how he holds up under cross…

    Observer in reply to ekpyros. | April 14, 2021 at 1:50 pm

    I thought he had a good point about the hypoxia theory. If you’ve ever seen anybody suffering from it, they become incoherent. But Floyd was coherent up until the point where he stopped talking, which suggests he wasn’t experiencing hypoxia. Curious to see how Tobin will respond to this.

    thetaqjr in reply to ekpyros. | April 14, 2021 at 7:37 pm

    I thought he was crisp, marking his replies with bright young energy and authority.

    But if the substance of his testimony didn’t wane over the morning hours, his demeanor waned. He began to look old.

    He began to look old and tired, his posture was less erect, he hesitated in responding, maybe appeared confused by some questions. Some responses were on a delay, and his face didn’t convey “The Thinker’s” intense level of concentration.

I find the autopsy findings and discrediting of Tobin by the bulk of studies reasonable doubt that the cause of death was Chauvin’s knee on the neck and the heart and toxicology results point in a different direction. This doctor is closer to Baker I think?

state complaining about unfair tactics
cry me a river some 50k page worth

That was exactly the type of witness the defense needed. Calm, level-headed and professional. Too bad Brodd didn’t deliver the same.

Dr. Fowler tied all the medical pieces together into a package that clearly raised doubt to the prosecution’s narrative. The CO part was brilliant because the side recovery position would not have moved GF’s head/face much, so he would have still had CO exposure.

have white folks got the message yet ?

don’t be a cop in the inner cities unless you like doing the polka in a minefield

I think the CO line of testimony helps show how incomplete the investigation done by the state was. They didn’t test the blood for CO levels, they did not take the pills out of suv floyd was driving, they did not take the pills out of the squad car during the initial searches. The medical expert had no idea how much the gear that Chauvin was wearing weighed.
you can add in the slow response time by the ems squad and the fire truck, having to move floyd to a more secure spot to start cpr and the amount of time it took the fire truck to locate the ems squad
Add in the fact that Hall won’t testify has to be exploited to the jury in some manner.
Hill’s testimony was devasting, she testified tha floyd was passed out behind the wheel, look at floyd’s face as he was had the pills in is mouth when the police had a weapon pulled on him, the adrenal glad had to pumping out at full blast at that point, going form nearly comatose to shocked into full alert in just a few seconds.

Focusing so much on the very unlikely case of car exhaust having an effect is not going to help the defence
It is a major stretch that Floyd died of car exhaust seriously how many people die every year standing next to a running car ?
This will only confuse the jurors when you should be driving home the point that Floyd died of a drug overdose.
The only real evidence they have is the drugs in his system everything else just speculation

Dr. David Fowler responses to the frivolous lawsuit that has activist media and social justice warrior twitter all in a lather. I would not be surprised if the State attempted to use this lawsuit to smear Fowler.

Dr. David Fowler Motion to Dismiss

https://www.edocr.com/v/lxqjae5y/dnpiercy/dr-david-fowler-motion-to-dismiss

Dr. David Fowler Motion for Summary Judgment

https://www.edocr.com/v/gklz6zrq/dnpiercy/dr-david-fowler-motion-for-summary-judgment

So after the state introduces materials several times on the day of testimony, they have the gall to bitch about the defense doing the same????

StandardMurse | April 14, 2021 at 2:35 pm

Blackwell’s opening questioning should have been asked to each one of his experts.

Nelson.. wake up..

Would that Blackwell applied his qualifications for an expert witness to the state’s witnesses.

StandardMurse | April 14, 2021 at 2:36 pm

This whole state cross is going to be a reach.

“Blackwell: Shouldn’t cherry pick facts, confuse the jury.”

Jesus… is the jury keeping a straight face hearing the prosecution ask that question.

Blackwell is being argumentative af, this is gonna rub jurors off the wrong way

    Whiskey Sam in reply to oogabooga. | April 14, 2021 at 3:42 pm

    I have a feeling that with this jury pool, it rubs them the right way. Don’t forget that while we’re all fascinated by the facts of this case and simply want the jury to make the best decision consistent with those facts, the MAJORITY of observers made up their mind @ May 29 last year. They don’t care. Just follow the way they treat the case on social media.

StandardMurse | April 14, 2021 at 2:38 pm

They addressed the issues with the equipment when they stated the studies went up to 220lbs

I don’t understand why the defense brought up CO poisoning. It seems like a red herring to me.

StandardMurse | April 14, 2021 at 2:39 pm

Blackwell about crapped himself when the witness described the technical aspects of the car.

Ok Fowler, be better than Brodd.

StandardMurse | April 14, 2021 at 2:41 pm

How do you know the car was on?

He wasn’t supposed to have an answer to that. Blackwell is reaching, this is a good witness.

Everyone knows cops leave their car running. I’d be willing to bet they are trained to do so. God knows they have training material for everything else. Nelson, find it.

Nitpicking on CO. Not impressive.

How is this allowed in cross?

StandardMurse | April 14, 2021 at 2:45 pm

GF just stumbled a little bit while standing there. Wonder if anyone else caught that in the video.

Here we go again with those exhibits – trying to break Fowler.

Quick question for the attorneys or other knowledgeable folk in here:

From what I have observed the State seems to take a marked almost hostile approach to questioning these witnesses. I noticed it yesterday and now today. Is there a chance this would have an adverse impact on the jury? Like the jury may find the State almost unlikable. I think this was notable with the female attorney yesterday who got visibly annoyed when the witness, who appeared to be hard of hearing, asked her to repeat her questions. Maybe this is standard I just think I would find the State not very “likeable.”

That might not really matter.

What the hell is Blackwell commenting on “not to confuse the jury”? Sounds like he’s scared and desperate.

StandardMurse | April 14, 2021 at 2:53 pm

Cahill didn’t like that head shake, state is showing their ass.

Not a fan of Blackwell’s tactics, hopefully Cahill will reign him in.

AFB, are sidebars less formal than everything else we’ve seen? Where the judge might admonish council a little less formally “Get your shit together, I’ve had enough” or such.. Obviously that would be extreme, but you get the idea.

As fallacious as Blackwell is most of the time, you got appreciate his pugnacious style. I can’t help but think that the jury may also appreciate it. Confidence counts for something with a jury, no? I wish Nelson would emulate the confident style now and then, at strategic moments. They jury needs cues, especially when they are getting tired and bored.

StandardMurse | April 14, 2021 at 2:58 pm

Definitely a different demeanor from Blackwell after the sidebar.

    LongTimeReader in reply to StandardMurse. | April 14, 2021 at 3:19 pm

    I have a visceral dislike of him. I am pleased when he gets shaken a bit. In my informal accounting, he seems to have the lead on sustained objections.

      Midfiaudiophile in reply to LongTimeReader. | April 14, 2021 at 4:44 pm

      Funny how that works (and it shows a possible hazard of only having one lawyer doing all examination). I’m neutral on Blackwell and Schleicher, intensely dislike Eldridge and Frank.

StandardMurse | April 14, 2021 at 3:00 pm

Here comes the opportune snapshot of knee on neck.

If I were a juror, I would be irritated at the constant assumption of my mental clarity of the subjects being discussed.

Having a 140 lb. weight on Floyd’s back must have been trivial for someone who (I understand) was, in his youth, a football player. I expect he’d had a LOT more weight on his back in the course of playing football.

    Smooth23 in reply to Jay Guevara. | April 14, 2021 at 3:06 pm

    I think Mama referred to him currently being a football player, and he was employed as a security guard at the salvation army.. so certainly a small man on his back shouldn’t have any effect.

    StandardMurse in reply to Jay Guevara. | April 14, 2021 at 3:06 pm

    You are especially in great shape from “hoopin” all day.

    oogabooga in reply to Jay Guevara. | April 14, 2021 at 3:07 pm

    Facts, I played football in high school too. There were times where like over 5 people dogpiled me and I can assure you it was well over 140 pounds. I can assure you it was uncomfortable but I would not die of asphyxiation.

    And the force that Chauvin used was only 20 lbs, so this further discredits this whole thing.

      thad_the_man in reply to oogabooga. | April 14, 2021 at 3:13 pm

      And if it was a fumble I’m sure that felt additional pain when people were grabbing sensitive male organs to distract them from grabbing the ball.

Blackwell is trying to get Fowler to admit to positional asphyxia.

“Often without manifestations” is not the same as a majority of cases.

“Blackwell: Had discussions with Nelson about strangulation. Know nobody is contending that Floyd was manually strangled?”

REALLY??? Because this is one of a hundred other theories the prosecution was throwing at the wall earlier!!!!

Not all the offficers were on Floyd’s back; only Chauvin was, it seems to me. Another one was on his hips, and a third one on his legs.

Proposed -Nelson: Have any of the factors brought up by Mr Blackwell cause you to change your opinion concerning the cause of death?

No studies lasted 9 minutes 29 seconds??? Go get Steve Crowder’s YT!!

StandardMurse | April 14, 2021 at 3:24 pm

No, he didn’t calculate the EELV because no one can do that based on a video and Tobin spewed crap science. He should say he doesn’t understand how anyone could calculate EELV.

Blackwell: Tell me if I’m asking the wrong person, agree that pressure on soft side of neck also narrows hypopharynx?

—Go to a Jiu Jitsu gym…. it’s studied daily.

Seems like no one noticed that Baker directly stated he did not believe it was possible to evaluate such things like lung volume or oxygen levels post-mortem. He basically contradicted Tobin, though he’d presumably bow before the guys credentials.
You can apparently get away with anything if you’re the most credentialed person in the room. Nelson got Tobin to admit certain assumptions but probably wasn’t strong enough in calling out the BS. Nelson needed to show a little more moral outrage in his tone of voice; he’s literally fighting for a guy’s life/liberty, so he needs to act like it.

“As a physician, I would agree.”

Ah….nelson should ask him more about that comment.

For Nelson: If we concede this was an anoxic seizure, then he is already dead and no amount of medical help will save him?

I’m still baffled how any meaningful lung volume data can be determined via cell phone or body cam video.

Did Blackwell just throw shade on his wonderful accent?

Blackwell is throwing shade on this guy which is definitely hurting the prosecution, especially on his accent (how could you make fun of that? lol)

The state team is really reaching.

Didn’t Floyd say that he couldn’t breath before the attempt to place him in the squad car?

    Astrov in reply to BillD. | April 14, 2021 at 4:05 pm

    No. I think the first time was in the back of the squad. If you look on YouTube unedited bodycsm posted by Daily Mail it is at 7 mins 03 secs. “I can’t choke, I can’t breathe” IMO he had pills stuck in his windpipe and struggle dislodged them.

      BillyHW in reply to Astrov. | April 14, 2021 at 7:17 pm

      Did the autopsy even check his windpipe for a pill?

        whrbbt in reply to BillyHW. | April 14, 2021 at 8:54 pm

        That’s a really interesting question! I have no clue.
        I know from the couple of times I have had a pill stuck in my throat it made me cough and throw up.
        But the ‘I can’t breathe’, could well have meant his windpipe was partially blocked.

    Perplexed in reply to BillD. | April 14, 2021 at 5:18 pm

    Yes, I’m pretty sure he said it when he was leaning up against the building while sitting on the ground handcuffed over by his car.

    Also, how can someone who’d been sitting in a small mercedes suddenly have claustrophobia in a car that is the same size or bigger?


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