Andrew Branca, Ben Crump, Brooklyn Center, Derek Chauvin, Dr. David Fowler, Dr. Martin Tobin, exculpatory evidence, George Floyd, Hennepin County, Judge Cahill, Kim Potter, Minneapolis, mistrial, Prosecutor Jerry Blackwell, racist prosecution
The trial of Derek Chauvin is in its final stage. Before we get into the details of the final two days of testimony, we need to visit an article by Andrew Branca, which explains one of the most egregious and unethical tactics of the prosecution in this, another racist, political, backwards persecution:
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.
As I’ll explain later in this article, this is not an accident or oversight.
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.
It’s the kind of thing a competent judge should never allow. It’s the kind of thing that can, and should, provoke a mistrial and sanctions against the prosecutors. But this is a backward, racist trial…
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.
Me too. On to more direct coverage of Day 13:
Day 13: Dr. David Fowler was an effective witness for the Defense:
As one should expect from a retained expert witness, Dr. Fowler was prepared to say the magic words that the defense needed said, in the context of having formed an opinion, to a reasonable degree of professional certainty, as to the cause and manner of George Floyd’s death.
And that opinion is:
George Floyd had a sudden cardiac arrythmia due to atherosclerotic and hypertensive heart disease, during his restraint by the police.
Contributory conditions that led to this fatal outcome included Floyd’s existing heart disease (substantial coronary artery occlusion, and pathological hypertension resulting in an enlarged heart), fentanyl and methamphetamine toxicity, an existing paraganglioma, and another factor mentioned for the first time today, exposure to carbon monoxide from the exhaust of squad car 320.
What’s a paraganglioma, and why does that matter in this case? The Mayo Clinic explains:
Paragangliomas are rare tumors. They can occur at any age, but they’re most often diagnosed in adults between 30 and 50. Most paragangliomas have no known cause, but some are caused by gene mutations that are passed from parents to children.
Paraganglioma cells commonly secrete hormones known as catecholamines or adrenaline, which is the fight-or-flight hormone. This can cause episodes of high blood pressure, a rapid heartbeat, sweating, headache and tremors.
The real take home message in all of this was that Fowler agreed that low oxygen played an important role in Floyd’s death—but it was the manner in which that low oxygen state was achieved that made the difference in this case.
More specifically, the state was essentially arguing that it was the subdual restraint by the officers upon Floyd that induced positional asphyxia, a low oxygen state, and a consequent fatal arrhythmia in Floyd’s heart.
Fowler’s view, however, was that it was not a profound low oxygen state induced by the police via subdual restraint and positional asphyxia that caused Floyd’s heart to stop, but rather that it was Floyd’s exceptionally fragile physiological condition—a condition unknowable to the arresting officers—that made his heart exceptionally vulnerable to even the modest shortfall in oxygen caused by Floyd’s decision to fight arrest, resulting in the cardiac arrest.
According to the defense narrative it was, in effect, Floyd’s own physiological fragility that killed him when he chose to subject himself to the justified use of force by police officers compelling his compliance with lawful arrest, including his forcible 10-minute struggle with multiple police officers and subsequent restraint.
This fragile physiological condition was the result, again, of Floyd’s severe coronary artery occlusion, his pathological hypertension resulting in an enlarged heart, his life-long abuse of fentanyl and methamphetamine, not to mention smoking both marijuana and cigarettes, his paraganglioma tumor, and even his acute exposure to carbon monoxide while being restrained by police.
What’s more likely: Floyd was killed by a 140 pound officer putting far less pressure than his total body weight on Floyd’s shoulder and upper back for about 9 minutes, or Floyd’s fatal dose of drugs, his multiple, deadly medical conditions, his tumor, and other dangerous physical issues, many of which could have killed him at any moment? Floyd was a walking suicide attempt, and a violent felon, a path not conducive to longevity even absent all of Floyd’s medical problems.
Here I’ll just note that Nelson had Fowler explain why Floyd could have died of a cardiac arrest even in the absence of apparent damage to heart cell; how a sudden arrhythmia would have resulted in a low oxygen condition; how Floyd’s enlarged heart induced by his pathological hypertension would have made him particularly vulnerable to even a modest drop-off of oxygen and other resources; how Floyd’s profound coronary artery occlusion made him even more vulnerable in this manner; how Floyd’s heart disease primed him for a fatal arrhythmia; and perhaps an abrupt release of adrenaline from Floyd’s paraganglioma found in his lower abdomen.
All of this fragile physiology was further primed for catastrophic failure by various environmental factors, including Floyd’s fentanyl toxicity, which reduced respiration and thus desperately needed oxygen; Floyd’s methamphetamine use, which increased the heart’s demand for resources even as it reduced his body’s ability to deliver those resources, as well as fostering failure of Floyd’s biological ‘pacemaker’ that prevents fatal arrhythmia; the adrenaline released by the ‘fight or flight’ response triggered by Floyd’s decision to physically resist arrest; and perhaps even acute exposure to carbon monoxide being exhausted from squad car 320, whose exhaust pipe was only about a foot or so from Floyd’s face, which would have bound up a substantial portion of Floyd’s hemoglobin and further reduced his oxygen-carrying capacity.
Nelson also had Fowler address the lack of any indication of physical injury, not even bruising much less broken bones or cervical damage, to Floyd’s neck and back, when in Fowler’s lengthy experience in working with such cases signs of injury were common. Nelson also took the same approach to the state’s arguments that it was pressure on Floyd’s hypopharynx that caused his death—Fowler had never seen that occur and found no reference in the literature to it having ever occurred, as a result of external pressure (as opposed to some ingested obstruction, such as a chunk of food, or an internal tumor).
Nelson also had Fowler speak authoritatively with respect to a number of studies of positional asphyxia that substantially undermined the state narrative that this was a clearly deadly restraint procedure that any reasonable officer should have known created a lethal danger to a suspect.
Indeed, the studies indicated that even lengthy periods of subdual prone restraint while subject to weights of as much as 225 pounds showed little tendency to induce hypoxia in otherwise healthy subjects.
If the jury listened, that had to matter.
Day 14: The action in the courtroom today was mostly of the lawlerly type, certainly not the sort of thing one would see on a TV courtroom drama. Derek Chauvin invoked his 5th Amendment right not to testify, with the obligatory admonition from the judge the jury was not to draw any conclusions as to guilt from that invocation. Some will, of course, anyway, particularly the stealth jurors anyone with an IQ greater than that of fruit knows must be on this particular jury.
Following that there was much legal wrangling about recalling Dr. Martin Tobin, who as readers may recall was something of an ass during his appearance during the Prosecution’s case in chief. The Prosecution wanted to rebut defense expert Dr. David Fowler’s testimony about the possibility of CO2 in George Floyd’s blood from the police cruiser’s exhaust contributing to his death. At least in part because Fowler was no longer available, that argument didn’t go well for the prosecution, and Tobin was eventually allowed to argue around the margins about that, nearly provoking a mistrial. For Andrew Branca’s exposition on that, take the day 14 link. Here’s an excerpt touching on that, and on what could be a very significant issue should Chauvin be convicted and an appeal be filed, as it surely would be:
That direct questioning on rebuttal was conducted by Prosecutor Blackwell and took only about 8 minutes. Excitement, of the legal type, occurred about four minutes into direct when Tobin appeared to reference the blood gas data that Cahill had cautioned would result in a mistrial.
Nelson immediately objected, and the court went into a couple of minutes of sidebar, during which I’m sure the defense was asking for a mistrial.
Frankly, in my professional opinion, a mistrial in this case would be entirely warranted, if not from this particular incident in isolation, then from the accumulated harms done to the defense by the state’s untimely dropping of thousands of exhibits on the defense even as the trial proper was taking place, averaging nearly 500 new exhibits each day of the trial.
Remember, gentle readers, one of the obvious indicators of a racist, political prosecution, a backward case, is when the prosecution slow rolls, or entirely withholds exculpatory evidence, evidence they are lawfully and ethically obligated to provide to the defense in a timely manner. In a properly run trial, any evidence not provided to the Defense prior to the beginning of the trial is normally not allowed. In this particular case, there is less than no excuse for this. The Prosecution has 12-15 lawyers, many from high-powered law firms, working the case, the better to stack up virtue signaling, social justice, woke street cred. No doubt they also had the help of innumerable other associates at those firms, paralegals, etc. to do research and paperwork. They have no excuse for slow rolling discovery. Clearly, they were using this tactic to overwhelm Nelson, the single attorney defending Chauvin. In so doing, they were intentionally trying to deprive Chauvin of an effective defense.
As Branca observes, I’m sure Nelson asked for a mistrial on this account—probably more than once–as well he should. It’s a dirty tactic used by corrupt prosecutors who know they don’t have a case, and it should cause a mistrial. Yes, a conviction might be overturned on appeal, but that’s a huge amount of time, money and stress, particularly on Chauvin, that could have been avoided. There is no way, however, Judge Cahill, or virtually any Minnesota Judge, would do anything but send this case to the jury, knowing that alone would result in billions of dollars of damage the political establishment would do nothing to try to prevent or stop, to say nothing of “peaceful protestors” showing up at his house, burning it down, while murdering him and his family.
Who in Minnesota doesn’t know Kim Potter’s home, the home her family had to abandon, is surrounded by fencing and police officers, and were it not, it would be burned to the ground? Who doesn’t know in Minnesota, the rule of law is, if not dead, severely wounded?
Cahill sent the jury home, telling them not to watch TV or read news stories. Riiiight. Will they be blindfolded as they are police escorted past “peaceful protestors” out of the barricaded and fenced courthouse complex, a complex guarded by police, National Guard troops and armored vehicles? Will they cover their ears and chant “la, la, la, I can’t hear you!” to avoid hearing “protestor’s” racist and threatening chants? Will they turn their eyes away from miles of racist and threatening graffiti and destroyed, boarded up businesses? Will they refuse to speak with family and friends concerned about their welfare and the fate of their city? Consider this from PJ Media:
The Hennepin County Government Center is surrounded by elaborate fencing and other security measures. To get inside, people must have preapproved access. Everyone who enters has to pass through two sets of metal detectors, similar to those at airport security checkpoints.
To reach the courtroom where the trial is taking place, jurors use a separate, private route, which takes them straight to the court. All public entrances to the building are closed, except for one pedestrian entrance at a gated checkpoint.
Anyone entering that facility has to run the gauntlet of at least two metal detectors, and is subject to search. Local lawyers have been told to prepare for “emergency evacuation”:
This will be much on the minds of the jury as they begin deliberations, likely on Monday (04-19-21), particularly considering the continuing “peaceful protests” in Brooklyn Center that have, as always, peacefully spilled over into Minneapolis and around the nation, as Antifa has been identified arriving in Brooklyn Center to take center stage away from local looters and arsonists. And of course, race baiting lawyer, Ben Crump, is an ever-present reminder of what actual racism looks like:
Monday, there will be closing arguments. The prosecution will go first, followed by the defense. Because the prosecution has the burden of proof, they’ll get to rebut the defense argument.
Expect to see the hallmark indicators of a backwards trial: The prosecutor or prosecutors will mischaracterize evidence, even lie about it. They will resort to inflaming emotion rather than dispassionately producing evidence, and as lenient as Judge Cahill has been, will almost certainly throw race into their witch’s brew. There is a reason they have, in large part, relied on Mr. Blackwell, who is black, to handle much of their case. Expect him to have a major role on Monday. The defense, on the other hand, will stick to the law and the evidence, explaining carefully where and why the prosecution has failed to prove the elements of the crime, why they must have reasonable doubt, and why they must acquit Chauvin. He will not mischaracterize evidence and will not lie.
The wiser members of the jury, people actually open to honoring their oaths to decide the case on the evidence and the law, will see this difference. If so, will it be enough?
Will Chauvin be convicted? Based on what I’ve seen of this trial, he should not be. There is more, much more, than reasonable doubt. The Prosecution generally did poorly because their case was poor—it should never have been brought. But we must consider the political/racist dynamics that brought it. We must consider the certainty there are stealth jurors. And even for jurors who intend to do justice, we must consider they know beyond any doubt an acquittal will surely send arsonists and murderers to their homes, and if they come, the Police will not be allowed to do anything to stop them, nor in the miraculous event they get arrested after the damage is done, will they be prosecuted or convicted. Surely they know there will be “peaceful protests” no matter what verdict they render, but won’t they go for the lesser evil, the potentially lesser destruction?
Realistically, the best Derek Chauvin can hope for is a hung jury, which could ultimately be to his benefit. The prosecution would surely demand another trial, but their evidence is never going to get any better, while the defense can learn from its mistakes, find better experts, and present an even more compelling case.
We could be pleasantly surprised; this could be a case of actual rather than social justice. Stay tuned.