Derek Chauvin trial: The murder of George Floyd

[LM K]

Dr. Tobin recalled as rebuttal witness.

[fierceredpanda]

Dr. Tobin recalled as rebuttal witness.

The hits are the hits for a reason. Lots of very seasoned lawyers, here and elsewhere, praised Tobin's performance during the State's case-in-chief as authoritative and relatable. Good move by the prosecution to recall him as a rebuttal witness. Bonus points if they make a point of how much more thorough his review of the evidence was than Fowler's.

[sugar magnolia]

Tobin back on the stand for about 5 questions on rebuttal about carbon monoxide levels and hypo... narrowing.
The prosecution had 4 points they wanted to rebut, the judge allowed 3 and the prosecution only touched on 2. Now in recess for 20 minutes.

The judge severely limited the prosecution rebuttal on the carbon monoxide, even though Baker called them last night and said he'd found actual test results that they didn't think existed, showing the actual CM level in his blood.

Tobin said "arterial blood gas" in response to the first question and the defense immediately jumped in with a sidebar. The judge had threatened a mistrial if the witness got anywhere close to the newly discovered results, not even allowing any mention that they existed.

Jean Casarez is a moron and seems to get worse by the day. She commented on (reading from her own notes) the adrenaline blood gases and wondered out loud if even the RN on the jury had any idea what that technical jargon was. If you've ever watched E.R. or House or any other medical show, you probably know what the ABG is, and Tobin ran down a list of the other things included. Also, the ABG results have already been entered into evidence. That's where they got the O2 saturation number from.

Lots of guessing about a mistrial at this point.

[sugar magnolia]

Dr. Tobin recalled as rebuttal witness.

The hits are the hits for a reason. Lots of very seasoned lawyers, here and elsewhere, praised Tobin's performance during the State's case-in-chief as authoritative and relatable. Good move by the prosecution to recall him as a rebuttal witness. Bonus points if they make a point of how much more thorough his review of the evidence was than Fowler's.

One of the questions was specifically about Fowler not being able to find any reference studies on the hypo... thing. Tobin said there were at least a dozen he was aware of and possibly as many as 20. He didn't go into the studies themselves, but invited the jurors to squeeze their own throats and they would see why nobody would need to research that particular claim.

He also pointed out that if the O2 saturation was 98% then the CM could not be more than 2%. Maybe Fowler can't add either.

[sugar magnolia]

A couple of questions from Nelson for Tobin.
Prosecution rests. Jury returns Monday for closing arguments.

[fierceredpanda]

If there's a witness hall-of-fame, Tobin should go into it.

Both sides just rested, and the evidence is now closed. Jury is sequestered for deliberations. Closing statements on Monday. I'm guessing the jury instructions conference is going to be a doozy.

[sugar magnolia]

If there's a witness hall-of-fame, Tobin should go into it.

Both sides just rested, and the evidence is now closed. Jury is sequestered for deliberations. Closing statements on Monday. I'm guessing the jury instructions conference is going to be a doozy.

I thought it was interesting that the Judge read out the jury instructions about a defendant testifying or not and had Chauvin approve it for the record. Do they always do that?

[fierceredpanda]

If there's a witness hall-of-fame, Tobin should go into it.

Both sides just rested, and the evidence is now closed. Jury is sequestered for deliberations. Closing statements on Monday. I'm guessing the jury instructions conference is going to be a doozy.

I thought it was interesting that the Judge read out the jury instructions about a defendant testifying or not and had Chauvin approve it for the record. Do they always do that?

That's discussed outside the presence of the panel, but yes. Every state has a pattern jury instruction for a defendant choosing not to testify. The defendant obviously has the right to testify or not, and he also has the right to have the jury instructed on that point if he wishes, or not if he does not. That can be a bone of contention amongst defense lawyers. Some lawyers think the instruction draws too much attention to the fact that the defendant didn't testify, once again raising the specter of the jury thinking along the lines of "What does this person have to hide? If I were on trial for my life and I were innocent, I'd want to testify." Others think it's helpful to reinforce the point in the jurors' minds that the defendant has an absolute right not to testify and that they are forbidden from inferring guilt from the defendant's silence.

A lot of this is strategic. If one of the themes I've been hammering since voir dire is the presumption of innocence and reminding the jurors of their duty to infer nothing from my client's silence, I will advise my client that the instruction can be helpful because it reinforces that point by putting something I've said in the judge's mouth. Other trials, where that hasn't been emphasized as much, we might not want to have that instruction read. Of course the client has the final word, but good clients listen to their lawyers on things like this.

The other thing is making a record for appeal. It has to be entirely clear that the defendant knowingly, intelligently, and voluntarily waived his right to testify in his own defense, did so with the advice of counsel, and said so in open court. Failure to make such a record could result in an appellate court shipping the case back for a new trial very swiftly.

[sugar magnolia]

If there's a witness hall-of-fame, Tobin should go into it.

Both sides just rested, and the evidence is now closed. Jury is sequestered for deliberations. Closing statements on Monday. I'm guessing the jury instructions conference is going to be a doozy.

I thought it was interesting that the Judge read out the jury instructions about a defendant testifying or not and had Chauvin approve it for the record. Do they always do that?

That's discussed outside the presence of the panel, but yes. Every state has a pattern jury instruction for a defendant choosing not to testify. The defendant obviously has the right to testify or not, and he also has the right to have the jury instructed on that point if he wishes, or not if he does not. That can be a bone of contention amongst defense lawyers. Some lawyers think the instruction draws too much attention to the fact that the defendant didn't testify, once again raising the specter of the jury thinking along the lines of "What does this person have to hide? If I were on trial for my life and I were innocent, I'd want to testify." Others think it's helpful to reinforce the point in the jurors' minds that the defendant has an absolute right not to testify and that they are forbidden from inferring guilt from the defendant's silence.

A lot of this is strategic. If one of the themes I've been hammering since voir dire is the presumption of innocence and reminding the jurors of their duty to infer nothing from my client's silence, I will advise my client that the instruction can be helpful because it reinforces that point by putting something I've said in the judge's mouth. Other trials, where that hasn't been emphasized as much, we might not want to have that instruction read. Of course the client has the final word, but good clients listen to their lawyers on things like this.

The other thing is making a record for appeal. It has to be entirely clear that the defendant knowingly, intelligently, and voluntarily waived his right to testify in his own defense, did so with the advice of counsel, and said so in open court. Failure to make such a record could result in an appellate court shipping the case back for a new trial very swiftly.

Makes sense, and it was made very clear by one of the commentators why Nelson was the one quizzing Chauvin about his decision not to testify and affirming that they had discussed it before Chauvin made his decision. Then the judge took over and made sure he hadn't received any promises or threats before going into the part about the jury instruction.

[Slim Cognito]

....

Tobin said "arterial blood gas" in response to the first question and the defense immediately jumped in with a sidebar. The judge had threatened a mistrial if the witness got anywhere close to the newly discovered results, not even allowing any mention that they existed.

....
Lots of guessing about a mistrial at this point.

Forgive my ignorance but a lot of this goes waaaaay over my head. Are we in danger of the judge declaring a mistrial?

[sugar magnolia]

....

Tobin said "arterial blood gas" in response to the first question and the defense immediately jumped in with a sidebar. The judge had threatened a mistrial if the witness got anywhere close to the newly discovered results, not even allowing any mention that they existed.

....
Lots of guessing about a mistrial at this point.

Forgive my ignorance but a lot of this goes waaaaay over my head. Are we in danger of the judge declaring a mistrial?

No. Both sides have rested and the jury will return Monday for closing arguments and then be sequestered for deliberation.

[W. Kevin Vicklund]

....

Tobin said "arterial blood gas" in response to the first question and the defense immediately jumped in with a sidebar. The judge had threatened a mistrial if the witness got anywhere close to the newly discovered results, not even allowing any mention that they existed.

....
Lots of guessing about a mistrial at this point.

Forgive my ignorance but a lot of this goes waaaaay over my head. Are we in danger of the judge declaring a mistrial?

The danger appears to be past, but allow me to explain what was going on. Generally, you have to introduce the evidence you plan on presenting before the trial, during discovery. This allows the opposing side to develop a strategy to counter the evidence, such as a rebuttal witness, or for the judge to rule whether the evidence is admissible. It's very difficult to add evidence after the trial starts (usually it's because new evidence comes to light that wasn't available before).

In this case, the prosecution failed to enter evidence of George Floyd's carbon monoxide levels. The defense expert witnessed opined that Floyd may have died from carbon monoxide poisoning. The prosecution then found that CO blood levels were included in a report, but the judge refused to let them enter that report into evidence. As a result, the prosecution's rebuttal witness was barred from presenting the evidence from the report, but he was permitted to use the reports that were submitted. So when the rebuttal witness started talking about "arterial blood gasses," the defense jumped on that, thinking the witness was trying to introduce the forbidden evidence. The sidebar discussion is where the prosecution told the judge (where the jury couldn't overhear) that the evidence being relied on was not from the newly discovered evidence, but rather from already submitted evidence. The expert witness was allowed to proceed, and said that based on the oxygen saturation, there couldn't have been enough carbon monoxide saturation to cause CO poisoning. If the rebuttal witness had brought in the evidence from the newly discovered report, it had the potential of causing the defense to fail, and so would have been sufficiently prejudicial that it would be grounds for a mistrial.

[sterngard friegen]

W. Kevin Vicklund is generally correct.

While the CO hemoglobin level tests were not timely provided to the defense (supposedly just discovered to have been done), what was tested and is reflected on a report previously supplied to the defense (and, I believe, already in evidence) concerns measurements of oxygen saturation in the decedent's blood. It was 98% which means the George Floyd couldn't have 10-15% CO in his blood as yesterday's clown expert testified.

That is what Dr. Tobin testified to and despite the defense objection, it was clearly permitted based on the judge's ruling less than 20 minutes earlier. The talking heads on CNN weren't paying attention and couldn't adequately explain it.

There was never a danger of a mistrial based on Dr. Tobin's testimony, but defense counsel had to try. And it allowed the talking heads to blather on about yet something else that they missed.

Decide for yourself how competent the lawyer commentators are when they couldn't figure out what was going on.

[W. Kevin Vicklund]

W. Kevin Vicklund is generally correct.

While the CO hemoglobin level tests were not timely provided to the defense (supposedly just discovered to have been done), what was tested and is reflected on a report previously supplied to the defense (and, I believe, already in evidence) concerns measurements of oxygen saturation in the decedent's blood. It was 98% which means the George Floyd couldn't have 10-15% CO in his blood as yesterday's clown expert testified.

That is what Dr. Tobin testified to and despite the defense objection, it was clearly permitted based on the judge's ruling less than 20 minutes earlier. The talking heads on CNN weren't paying attention and couldn't adequately explain it.

There was never a danger of a mistrial based on Dr. Tobin's testimony, but defense counsel had to try. And it allowed the talking heads to blather on about yet something else that they missed.

Decide for yourself how competent the lawyer commentators are when they couldn't figure out what was going on.

Thanks, stern. Not bad for a layman going purely on what was reported on this thread, eh?

[LM K]

A couple of questions from Nelson for Tobin.
Prosecution rests. Jury returns Monday for closing arguments.

So the defense did question Tobin this morning? I missed the live stream and I'm wondering if the video I watched didn't include the defense questions.

[Slim Cognito]

Cute-thank-you-meme-bunny-300x193.jpg (14.26 KiB) Viewed 2694 times

Thanks all!

[LM K]

I watched some of Fowler's testimony yesterday but found him difficult to follow. Imo, the defense questioning of Fowler was purposefully shaped to be confusing just enough to create doubt. I noticed the prosecution saying several times "just to clarify for the jury" or something like "as not to confuse the jury".

I read that the jury wasn't taking many notes during Fowler's testimony, unlike their constant notetaking during Tobin's testimony. One juror fell asleep during Fowler's testimony.

I'm debating whether or not to watch all of Fowler's testimony.

[sugar magnolia]

W. Kevin Vicklund is generally correct.

While the CO hemoglobin level tests were not timely provided to the defense (supposedly just discovered to have been done), what was tested and is reflected on a report previously supplied to the defense (and, I believe, already in evidence) concerns measurements of oxygen saturation in the decedent's blood. It was 98% which means the George Floyd couldn't have 10-15% CO in his blood as yesterday's clown expert testified.

That is what Dr. Tobin testified to and despite the defense objection, it was clearly permitted based on the judge's ruling less than 20 minutes earlier. The talking heads on CNN weren't paying attention and couldn't adequately explain it.

There was never a danger of a mistrial based on Dr. Tobin's testimony, but defense counsel had to try. And it allowed the talking heads to blather on about yet something else that they missed.

Decide for yourself how competent the lawyer commentators are when they couldn't figure out what was going on.

Any respiratory complaint in the ER will mean an immediate ABG, probably multiple draws if they continue working on a live patient for a period of time. There are 5 or 6 (respiratory therapy school was 35 years ago) standard values you get from an ABG. O2 saturation, pH, and some other stuff. Those are the standard results reported when you run it through the ABG machine that spits out the results within minutes. The prosecutor's explanation of why they didn't know about the additional results was sort of confusing but perhaps they did a second test or sent it off to lab for additional tests or something. I never did understand how they just missed it on the first go 'round of testimony even though the ABG results were admitted and discussed.

At least they weren't blathering about the "adrenaline blood gases" like that idiot Jean Casarez did this morning. She's also the one who got it so, so wrong about the testimony about obesity playing a role in positional asphyxia the other day too.

[keith]

Question from the peanut gallery.

I'm wondering if there was anyone else near the exhaust pipe for 9 and a half minutes besides Floyd, and if they suffered any apparant injury from that exposure?

[LM K]

Fowler's body language during cross is fascinating. He isn't angry or hostile but he appears frustrated and tired. He doesn't like having his assessment challenged.

I'm happy to expand if anyone wants me to.

I'm going all Ms Shrinky Lady right now.

Fowler did only a PubMed search for finding research studies for his research. There are much better search tools for any scientific field. My nursing students don't rely solely on PubMed. This is inexcusable.

Yes! Please. And you could comment on that face resting on the hand with index finger extended while furrowing his brow, too, and why it takes him a full minute at times to reply with a simple yes or no.

I was so hoping Blackwell would ask him why, if fentanyl slowed his breathing, but Fowler testified he expected his breathing to be 33, he still stood by his opinion that he was on drugs. Blackwell got him to say he expected to see an increase in respiration, but didn't follow up on it.

I'm sorry I haven't answered this sooner. I haven't seen all of Fowler's testimony yet, so I'll comment on what I did see.

Disclaimer: I'm not a clinical psychologist and certainly not a body language expert. I also have migraine hangover brain, so please forgive me if this is scattered. My IQ decreases by 75% during and soon after migraines.

Fowler did get more and more tired as the day went on. That's completely understandable. This could influence my interpretation of his body language to some degree. I do try to keep fatigue in mind when reading Fowler's demeanor throughout the day.

Fowler was very engaged and animated during direct examination, esp when he was explaining medical processes. Fowler was much less animated and engaged during cross. He was very frustrated about being challenged and hated having to contradict his previous testimony.

On direct, Fowler tended to look up or forwards while thinking through an answer. He looked down during cross and his body was tense. Fowler was very frustrated and anxious when having to answer questions during cross. This difference in eye gaze while thinking is important. When looking up, Fowler was comfortable as he took a pause. When looking down, he was tense, anxious, and appeared exasperated.

This is highly significant, imo. I remember telling my mister to look at Fowler's body language when I saw Fowler's differences in looking patterns.

Some body language "experts" (I won't go into my quotations here because it's a tangent) will read a lot into someone looking up vs looking down. I'm looking at changes in body expression rather than x= this and y= that. I look at consistency and lack of consistency.

During direct, Fowler would make sustained eye contact with jurors. Imo, testimony is more effective when witnesses turn towards and look at the jury. During cross-examination, Fowler turned towards the jury much less often. Imo, he had to remind himself to turn to address the jury. Fowler was much less engaged with the jury during cross.

I noticed that Fowler slumped during cross and leaned on his chair arms. Sugar makes a great observation about Fowler using his hand and index finger to rest his head. To me, that indicates that Fowler is intensely trying to remember what he said on direct so he wouldn't contradict himself. He may have been quite tired at that time, and we should take that into consideration. Fowler resented being asked to contradict himself and his distain for being so intensely questioned by the prosecution was evident.

The long pauses before answering weren't surprising for me. As I said, there were many times during cross in which Fowler was trying to maintain consistent testimony but could not. We all take pauses when trying to put together complicated information. That's just how our emotional, memory, and cognitive processes work together.

It was obvious to me that Fowler was very comfortable during direct exam because he didn't have to reflect much as he testified. Fowler he made his evaluation and could discuss it easily during direct. He had a strong idea of what would be asked and could answer comfortably. He didn't have to problem solve often during direct. Fowler had to do significant problem solving under cross because he couldn't anticipate where the prosecution was going. There's nothing unusual about this.

Fowler allowed his frustration to impede his cognitive speed of processing. During cross, he took long pauses because he was trying to juggle many cognitive processes; remembering his previous testimony, remembering medical information that he likely hadn't prepared to be asked about, and regulating his frustration.

There was one point during cross during which Fowler crossed his arms and then quickly uncrossed them. He understood that crossing his arms could indicate a desire to separate himself from the prosecution's questions and possibly the jury. He caught himself.

Typically I put less weight into arm crossing than many psychologists do. I have chronic pain, and crossing my arms can help me control my pain during conversations. But I understand how arm crossing can interfere with the perception of engagement in a situation. Sometimes I'll point this out so folks don't misread why I'm crossing my arms. Because of my personal experience, I make sure to evaluate the vocal tone and facial expressions of the person with crossed arms to see if they're entire demeanor demonstrates a desire to put up barriers in discussion.

That said Fowler's arm crossing was an exhibit of frustration. He wanted to be done with cross and his arm crossing made that evident.

Good scientists aren't resentful when they're challenged. Science requires accuracy. Accuracy requires challenges by others.

Yes, being challenged can be uncomfortable but good scientists can handle that frustration and continue the challenges of the debate respectfully and without resentment.

Fowler didn't handle being challenged well. The prosecution's witnesses handled challenges quite well.

[LM K]

Question from the peanut gallery.

I'm wondering if there was anyone else near the exhaust pipe for 9 and a half minutes besides Floyd, and if they suffered any apparant injury from that exposure?

It's why Chauvin kept his knee on Floyd's neck for 2.5 minutes after Floyd's death. The carbon dioxide made thinking fuzzy for Chauvin do he couldn't make reasonable decisions!

[sugar magnolia]

Thanks LM K! Good catch on the up or down gaze too. I completely forgot to look at that. We had an in-service on conducting interrogations one time and they had a whole section on up- down- left- and right- gazes, along with squinting and other facial expressions. I took the class because I had to take something that month and it looked interesting. It was boring as shit. Several years later, I had to testify in an in-custody death case and they filmed the deposition. Watching it later it was incredibly obvious to me from seeing my facial expressions that I looked up and usually to the left when I was trying to remember a specific detail. I became a believer after seeing that.

[sterngard friegen]

Who put Floyd next to the exhaust pipes of a running car? (And since it was a hybrid was it really running? Water condensation from the tailpipe is not an indication it's running on its gasoline engine.)

[slq]

Who put Floyd next to the exhaust pipes of a running car? (And since it was a hybrid was it really running? Water condensation from the tailpipe is not an indication it's running on its gasoline engine.)

Exactly. Knowingly putting someone on the pavement right by the exhaust of a running car for 9 and a half minutes is just as bad as putting your knee on their neck for 9 and a half minutes. Except that didn't happen or everyone there (Chauvin) would have been inhaling exhaust.

[Flatpoint High]

Then, there is this odd story: https://www.startribune.com/disappearan ... 600046854/

But back in January, authorities were scratching their heads after a Taser issued to the ex-Minneapolis police was recovered during a traffic stop in the south Metro suburb of Burnsville — more than seven months after Chauvin was fired for his role in the death of George Floyd.

The specifics of how and when the device was taken have not been disclosed publicly. Neither was the identity of the person found with the stolen device or the circumstances that led to his or her being arrested.

"At this point we are unsure when this Taser was taken, or where it was located when it was taken," Minneapolis police Cmdr. Travis Glampe wrote in a report several days after its recovery. He wrote that after determining that the Taser was one of theirs, the department's Taser training coordinating officer confirmed that the device belonged to Chauvin. The head of the department's Internal Affairs then contacted BCA agent James Reyerson, who oversaw the agency's investigation of Floyd's death, to arrange the device's retrieval.