Chauvin Trial Day 11 – State’s Desperate Moves Reveal Vulnerabilities In Prosecution of Chauvin

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 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 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.

Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial can access the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including PandoraiHeartSpotifyApple PodcastGoogle Podcastsimple RSS feed, and more.

And thanks, as always, to both Legal Insurrection and CCW Safe for the support that makes my coverage of this case possible.

Until next time, stay safe!


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 in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service.  If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here:  Law of Self Defense Membership Trial.

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


3 thoughts on “Chauvin Trial Day 11 – State’s Desperate Moves Reveal Vulnerabilities In Prosecution of Chauvin”

  1. Evidence? A Minneapolis jury doesn’t need evidence. They have CNN. And today’s headline? “Cardiologist: Floyd’s death ‘was absolutely preventable.'”

    Full disclosure, I have zero faith in the criminal justice system as a whole, and in particular in a dark blue city like Minneapolis. The jurors understand – maybe I should say “believe” – that a not-guilty verdict in this trial will see Black Lives Matter burn down the rest of the city and probably the suburbs. That’s all the evidence they need. Unfortunately.

  2. Chauvin cannot be found guilty of any of the 3 crimes charged unless the jury finds he “caused the death” of George Floyd. Chauvin can be found guilty of the lesser included offenses of third degree assault or fifth degree assault if his use of force is found to be unreasonable in the circumstances meaning that Chauvin did not cause the death of George Floyd even though his use of force was unreasonable.

    I don’t know what Minnesota law is on instructing the jury on lesser included offenses, but third degree assault, fifth degree assault, and unreasonable use of force all have to be proven beyond a reasonable doubt to convict for second degree murder, and that normally makes those offenses “lesser included offenses.”

    On the issue of reasonable use of force, there is no way for me to come to an opinion on that issue until the defense presents evidence that Chauvin believed the use of force was necessary and what his reasons were for believing it was necessary.

    There is no evidence of it yet, but I expect one of the reasons the officers maintained the restraint until they loaded Floyd on the gurney was for crow control, they might have been afraid that if they got up and allowed the crowd to see that Floyd was dead that all hell would break lose. Better to pretend that he was alive and going to the hospital.

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