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2021-

2021-04-13 f
THE FLOYD FOLLIES

Chauvin Trial Day 11 Wrap-Up + Chauvin Trial Day 12 Wrap-Up
will be posted tomorrow

Chauvin Trial Day 11 Update – 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.

The specific arguments I have in mind centered around the state’s upcoming use-of-force expert Professor Seth Stoughton. He’s long been scheduled to testify that based on national standards—not Minneapolis Police Department standards—that in his opinion Chauvin’s use of force was unreasonable. This testimony was being allowed even though there is no evidence that Chauvin has ever been made aware of standards other than those imposed by Minneapolis Police Department.

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 week’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 featured 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. (read more)

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