Screen capture from video evidence submitted in Chavin's trial. The state's own MMA "expert" Williams is visible at the scene wearing a Northside Boxing Club sweatshirt, shouting threats of imminent violence
Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd. I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.
As we enter the 11th full day of trial in this case, the state is rapidly approaching the end of its presentation for its case in chief. We are, therefore, nearing a major inflection point for this trial.
For those who may be unfamiliar with the criminal trial process, after opening statements by both sides, the state takes the first turn in presenting the jury with its case in chief, meaning its entire comprehensive argument to meet its burden to remove all reasonable doubt on the criminal charges brought against Chauvin.
These charges include second-degree murder (really, felony murder), third-degree murder (really, reckless homicide), manslaughter, and third-degree felony assault (the predicate for the felony murder charge). A more detailed overview of these criminal charges is discussed in our previous commentary and analysis, here: Chauvin Pre-Trial Day 1: 3d Degree Murder Throws Wrench Into Jury Selection Process.
After the state has finished presenting all the witnesses and evidence that they believe prove the crimes charged beyond a reasonable doubt, they rest their case, and it becomes the turn of the defense to present witnesses and evidence that they believe create a reasonable doubt.
The key is that the point at which the state rests its case is normally the high point of the prosecution's narrative of guilt, the point at which reasonable doubt has been eliminated to the greatest degree likely to be achieved at any point in the trial. From here on the narrative presented to the jury is primarily the narrative of the defense, which is the narrative that drives an increase, not decrease, in reasonable doubt — and reasonable doubt is the key to acquittal.
So, if this is the highpoint of the state's narrative of guilt, and by extension the point at which reasonable doubt should have been eliminated to the greatest degree in the entirety of the trial, has the state really met that burden? Has reasonable doubt been effectively eliminated? Has the state met the threshold required for conviction? Because if they haven't done it before the defense even has its turn on the field of legal combat, they're not likely to achieve it moving forward.
In our coverage of the state's case in chief so far I've seen plenty of state's witnesses provide testimony and evidence that could readily support a jury — or, at least, individual jurors — in forming a reasonable doubt on these criminal charges, and on at least two fronts.
Keep in mind, the state really has to prove two different claims to arrive at criminal misconduct on the part of Chauvin in the death of Floyd.
First, the state has to prove that Chauvin's conduct was a significant contributory cause of Floyd's death — that would be sufficient for the third-degree murder charge. Even the other charges do not require that Chauvin intentionally killed Floyd. Apparently not even the prosecution believes this was an act of intentional RACISTPOLICEMURDER!!! Or we would see an intentional killing charge in this case, and we do not.
But I see many in the media reporting as if that's all the state has to do, is prove beyond a reasonable doubt that Chauvin's conduct was a significant contributory cause of Floyd's death. If that were correct, a conviction would seem at the very least highly possible — after all, the truth is almost certainly that Floyd died not of any single cause but of multiple forces racing together to take his life — his profound heart disease, his dangerous hypertension, his deadly-levels of fentanyl complicated by methamphetamine, his decision to forcibly resist the efforts of four police officers to make his lawful arrest. But also, of course, that force used by police, including the subdual restraint.
Surely it's not hard to imagine that the subdual restraint was a significant contributory cause of Floyd's death — at least, it could have been, and a reasonable juror might conclude it was, and that it was proven so beyond a reasonable doubt.
Does that get us to a conviction?
No, because there's a second condition that must also be met in order for that conduct that may have made a significant contribution to Floyd's death to be a crime — the conduct itself must in some manner be legally wrongful. If the conduct was lawful, it cannot be the basis for criminal liability.
Some simple analogies should illustrate this point.
If you're driving your car down the street in a safe and lawful manner, and a pedestrian unexpectedly steps in front of your vehicle and is struck and killed, you certainly made a significant contribution to that pedestrian's death, but you haven't committed a crime because your conduct in driving in a safe and lawful manner was not wrongful.
If a surgeon is desperately operating to save the life of a patient on his table, and the patient dies of a combination of their grave illness and the physiological stress of being opened up for surgery, certainly the opening up of the patient made a significant contribution to that patient's death, but the surgeon hasn't committed a crime because his conduct in performing surgery was not wrongful.
If an officer intentionally shoots and kills a suspect — so an intentional killing, which is more than Chauvin is charged with! — under circumstances that are legally justified, the officer has clearly made a significant contribution to that suspects death, but the officer has not committed a crime because his use of force was legally justified, and not wrongful.
By extension, even if Chauvin's use of force on Floyd made a significant contribution to Floyd's death, it's not a crime unless that use of force was not justified under the totality of the circumstances, and thus if the force was justified it is not wrongful and not the basis for criminal liability.
Conversely, the same is true if the state's rationale for guilt is undue delay in providing care, which is one of the several theories of guilt the state has been stirring in their narrative stew of guilt in this case. Even if the delay in care was a significant contributory fact in Floyd's death, it is not wrongful and not the basis of criminal liability if that delay in care was reasonable under the totality of the circumstances, including the circumstance of Floyd having been just minutes ago violently fighting four officers, the circumstance of the angry crowd shouting threats of imminent physical violence, the officers having no reason to know Floyd was in such fragile condition due to existing disease and fentanyl levels, and more.
So, that's what the state needs to have achieved by the point that they end their case in chief, even if we just limit ourselves to the 3rd degree murder charge in this case, and disregard the more serious charges — they need to have proven beyond a reasonable doubt that Chauvin's actual conduct was a significant contributory cause of Floyd's death AND that Chauvin's conduct was not reasonable under the totality of the circumstances, given the facts known to Chauvin and the time and in the context of his training and experience.
And the state needs to have eliminated any reasonable doubt, on both those points, in a sufficiently robust manner that it can withstand the next two weeks of defense case in chief driving every single day with every single witness to crack open that window of reasonable doubt.
As of today, has the state achieved that threshold, on both those key issues? If not, will they within the next 24 hours or so before they rest their case in chief?
Color me skeptical.
In any case, be sure to stay with us today as we continue our LIVE blogging of the court's proceedings in real time, and of course for our end-of-day wrap-up analysis and commentary this evening.
* * * * * * * *
Andrew continues his analysis of Day 11's events as the Chavin trial nears its end:
State's Desperate Moves Reveal Vulnerabilities In Prosecution of Chauvin
Prosecutor Schlieter: "Authorized use of force a complete defense to all charges."
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.
This is not our end-of-day wrap-up post, folks, that's still to come later this evening, but there were some interesting arguments made in court before the jury was brought in that I thought worth sharing with you because they appear to indicate that the prosecution is beginning to panic about some profound weaknesses in this case.
Professor Seth Stoughton testifies at Derek Chauvin trial
Defense Counsel Nelson filed a motion that asked Judge Cahill to exclude Stoughton's testimony entirely, on the grounds that it is cumulative in nature. That is, in court one is allowed to bring in a witness to argue a legal or factual point in court, but not an unlimited number of witnesses on the same point — to do so risks creating a fundamental unfairness in the proceedings. So one witness on a given point, OK, two are OK, three or four being to feel sketchy on this issue, seven or eight start to feel over the top.
This has always been a concern of the defense, because the state had a witness list of some 400 people — no, I'm not kidding — most of whose testimony would necessarily be duplicative and cumulative.
Although Nelson raised these concerns with Judge Cahill early on, Stoughton was still permitted to be on the schedule as a use-of-force expert for the state.
Now, however, Nelson is arguing that this allowance should be reversed by the court, because of the manner in which the state has had so many prior witnesses already testify on these use-of-force policy issues.
For example, we've heard testimony on these issues from Police Chief Arradondo, from the Inspector in charge of training, from the Lieutenant in charge of training, from Lieutenant Zimmerman who was responding Lieutenant, from Sergeant Ploeger who was the responding sergeant, to the next Sergeant who took over at shift change — and now we're going to have yet another speaker on the same issues.
The prosecution managed to convince the judge that Stoughton ought to be allowed, despite the cumulative nature of his testimony, because he comes at it from a different perspective than the other witnesses. They were police officers, discussing mostly MPD policies (although a couple did discuss the national case of Graham v. Connor in this context). In contrast, Stoughton was an academic who would bring a purely national standards perspective.
The manner in which Prosecutor Schleiter framed this argument to Judge Cahill to continue to allow Stoughton's testimony, however, strongly highlights a key reality in this trial that I raised in this morning's blog post.
This morning I pointed out that it's not enough to convict Chauvin on the merits of this case even if his restraint of Floyd was a contributing factor to Floyd's death. It is also necessary that his use of force upon Floyd was wrongful, meaning not justified, meaning unreasonable under the totality of the circumstances.
In his argument to the judge today, Prosecutor Schleiter explicitly affirmed this challenge for the state, stating:
"The authorized use of force is a complete defense to all of the charges in this case. It is primary, front and center."In other words, the last weeks's worth of medical testimony is entirely inadequate to convict Chauvin of any crime, no matter the extent to which it may have contributed to Floyd's death, if that use of force was that of a reasonable officer under the totality of the circumstances.
And those circumstances include officers' concerns about excited delirium, awareness that paramedics were arriving imminently, the fact that it had taken four officers to subdue the 6' 6" 230-pound Floyd as he forcibly fought arrest, and the presence of the hostile crowd shouting threats of imminent physical violence sufficiently believable that even the arriving paramedics chose to do a "load and scoot" rather than attempt to save Floyd's life on scene, and where members of the crowd were being held back by others from advancing on the officers — including the state's own MMA "expert" Williams who is visible at the scene wearing a Northside Boxing Club sweatshirt, shouting threats of imminent violence, and with a rather deranged expression on his face (as visible in our lead picture).
If the state can't overcome that challenge, and do so beyond any reasonable doubt, they cannot gain a conviction on the legal merits of this case.
And that prospect is scaring the heck out of them.
Also of huge concern to the state is the interpretation of Floyd's in custody statement that (the defense argues) "I ate too much drugs." The state argues Floyd actually said, "I don't take no drugs."
Suddenly, just this past Friday evening, the state prosecutors dumped at Nelson's office a just-created report by Stoughton that purports to provide some in-depth analysis of Floyd's speech, including exhibits with slowed down video, subtitles and so forth.
The sudden creation of this report and exhibits tells you exactly how much the "I ate too much drugs" interpretation of Floyd's words — by THEIR OWN WITNESSES — scared the prosecution.
There was more of interest in this argument over Stoughton, but time doesn't permit me to dig into all of it. In lieu of that level of detail from me in the moment, here's the video of the relevant argument, for your viewing pleasure.
Until next time, stay safe!
-Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca's legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike. He wrote the first edition of the Law of Self Defense in 1997, which you can now order in its current edition for just the price of shipping and handling by clicking here. To know YOUR state's use-of-force laws in an actionable way that will keep you safer physically and legally, take our state-specific advanced use of forceclass 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.
Reader Comments
RC
I believe Yupo is referring to their slippers and socks. Maybe George Floyd made the same mistake? Maybe Chauvin was the fashion police?
Terrible joke my apologies.
RC
As re this ( and stealing a line from Tony in Scarface ) RC
They are not uncommon. mileswmathis.com/gymnassar.pdf
If the trial is fake, the incident was fake. Why where the men who loaded Floyd into the ambulance dressed more like State troopers? They surely did not look like normal Minneapolis EMT's. The uniforms are brown, but are not the same, not to mention that they never rendered any medical assistance to Floyd, they just loaded him up as though they were from the coroner's office. That is not normal protocol for a man who has just lost a pulse.
Remember how Floyd and Chauvin both worked security at the same nightclub? And how the owner was not the actual owner? And how nobody recognized either of these men as the Floyd and Chauvin they worked with? The Floyd event didn't actually gain any attention until weeks after it happened , but once it got traction and people started investigating, the club burned down. There is definitely a story behind that nightclub.
And there's the guy who appears to be "Chauvin" who turned up at the Boston bombing, and at Sandy Hook. [Link]
Your point reminds me of something I learned from HA2, Codis Parzival, or another SOTTite (I forget which), where they went into details on his job working with his supposed killer, Chauvin, and the fact that he'd 'starred' in some porno flick where he played 'The Landlord'.* (Still gives me a smirk.) I hope that whoever provided that information will here again explicate.
RC
If you read all the other entries about this case from this particular blog, you'll see how what's seen on camera can only be interpreted one way when you let emotions cloud judgement. Based on the burden of proof for the prosecution, they're not going to get the outcome they want unless the jury is blind. They haven't proved that Chauvin did not have the legal authority to use the force he did given the totality of the circumstances, and if they can't prove that, they can't pin anything criminal on him at all.
This is not to say that Chauvin is a good person or isn't a corrupt cop. Rumor has it he hasn't paid taxes in several years for some reason. And surely his wife didn't file for divorce simply due to social pressure.
And the guy at the Boston bombing looks nothing like Chauvin. They share a haircut and it's evident they are not the same person even with shitty pictures.
There are many conspiracies, but not everything is a conspiracy.
RC
This is, however, one of those instances where other nations are probably stoking the anger of the public in clandestine ways. Or maybe it's all the CIA? But as I examine that angle, what would be the purpose of our own government fomenting massive civil unrest. It makes more sense if China or Iran help promote the idea that the evidence shows Chauvin is clearly guilty contrary to the facts of the case. The best way to destroy a nation is to get the nation's peoples to do it themselves.
Some conspiracy theories require a belief that our government is completely out of our hands now and that the MIC and the oligarchs of the world have total control. I don't know if I'm ready to give them that much credit. But they do have their claws in deep. On the other hand, the more I think about the rich trying to destroy the poor so there's more for them, the more I can't help think how easily that could backfire. Ultimately people will turn their pitchforks where they belong. And if you destroy the poor, who will do all the necessary work for the rich? It makes for good fiction, but less good reality.
On white supremacists. The news yesterday ran with "white lives matters" gatherings. I don't know how many outlets did, but it was based on a facebook event that ONLY 24 PEOPLE responded to. But it made headlines. And it reinforced the mass psychosis of the Left.
Finding who stands to gain something tangible from this is the hard question. And then there's "never attribute to evil what can be explained by stupidity." Based on the defense's cross of the prosecution's expert witnesses, it really does sound like the crowd is why Floyd ultimately could not be saved. Until yesterday I didn't know that he was alive until he reached the hospital where they were unable to keep him alive. I don't think the majority of the public knows that.
On the other hand, if things everywhere really are going to shit, why not stir the pot and accelerate it to get it over with. There are a lot of cities in the US that are bankrupt. A lot of poor people suffering. If you can keep the narrative focused on identity, it divides us into smaller infighting groups so we can't see that there is a class struggle, join together, and fix the disparity by creating a government that actually protects us from Ponzi bankers and brokerage firms manipulating our economy for their gain and leaving us with little. But for now, maybe getting the public to be more violent is the goal, to lead to a more authoritarian government where we are finally reduced to the human capital the Dominionist-materialists see us as?
Great find! (Of course, I ain't saying I agree and I actually wonder whether I'll ever look any further into all that than I already have, which is only the first few paragraphs.)
RC
RC