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.
Today, the 13th of this trial, the defense presents the second day of its case in chief to the jury, in its effort to create a reasonable doubt in the minds of the jurors as to the criminal charges for which Chauvin is being tried. As always, we’ll be LIVE streaming and LIVE blogging the court proceedings below.
At the end of court yesterday, after the jury had been excused for the day, the lawyers and judge did some legal housekeeping on some of the exhibits—the non-testimonial evidence in court such as videos, photographs, graphs, training manuals, and reports—which was, as one might expect, rather boring to watch.
A couple of points were made during those discussions that I thought worth sharing with all of you, however, before today’s proceedings start.
Court to Heart Motion for Judgment of Acquittal This Morning
The first item of interest is that at 8:45am CT this morning the court will be hearing motions (requests from the parties) in this case, and one of those will be a motion of acquittal submitted by the defense.
As some background, when a prosecution rests its case in chief there is a theoretical possibility that even if everything the state said was accepted as true by the jury, that a rational guilty verdict would still be impossible.
One such scenario would be where a charged crime has, say, four distinct elements, each and every one of which must be proven beyond a reasonable doubt—but the state completely forgot to present evidence on one of those required elements. Meaning, there is literally zero evidence in court on that element.
Well, the only purpose of the jury is to be the “finder of fact,” to evaluate evidence. If there is literally no evidence on an element of the charge, then there is nothing for the jury to consider. And in that case, there is no rational basis on which the jury could conclude that element of the charge was proven beyond a reasonable doubt.
And if that’s the case, as a strictly technical legal matter, no jury could find that the criminal charge as a whole was proven beyond a reasonable doubt.
In such a case, it would be appropriate for a trial judge to grant a motion for acquittal submitted by the defense, and end the trial right there with a judge-ordered “not guilty” verdict for the defendant, taking the matter entirely out of the hands of the jury.
We’ll hear that motion for acquittal from the defense in the Chauvin trial this morning.
And Judge Cahill will almost certainly deny that motion, because the prosecution in this case did not commit the blunder that would be required for the granting of such a motion to be appropriate.
We may not like the evidence the state has put forward on the elements of the criminal charges in this case, we may think that evidence weak or self-contradictory or paid for or lies or whatever—but there is evidence to consider, and so long as that’s the case deciding the weight and credibility of that evidence falls within the province of the jury, and they will not be denied the opportunity to carry out their “finder of fact” role in this trial.
Also to be considered if only for practical purposes, of course, is whether any judge presiding over this case would be willing to take the political consequences of having taken the decision from the jury and handing an acquittal to a person that much of the body politic in his jurisdiction believes to be a RACISTPOLICEMURDERER!
That said, there are multiple charges in this case, and it is theoretically possible that the judge could grant a judgment of acquittal on some of those charges and not others. That might diminish some of that political pressure without entirely taking the case out of the hands of the jury.
Personally, I don’t expect that to happen either.
I will also note that the timing of the hearing of this motion is rather odd.
Normally a motion for a judgment of acquittal is heard immediately after the state has rested its case in chief, and before the defense has begun to present its own case in chief. That didn’t happen here. Obviously, the defense began to present its case in chief yesterday, and the motion is only being heard this morning.
Also normally, if the defense doesn’t submit a motion for acquittal before it starts to present its own case in chief, then the window to do so is considered to have closed—the motion will be denied by the court not on consideration of its merits, but simply because the motion is no longer timely. The defense is deemed to have missed the deadline.
In yesterday’s closing meeting with the parties, however, Judge Cahill made clear that he had instructed the defense to dive right into its case in chief in order to make most efficient use of the time of the jury.
At the same time, he’d also given his word that the defense would have the opportunity to have their motion for acquittal heard outside the hearing of the jury later in the proceedings, and without having to be concerned that the motion would be deemed not timely.
And that’s where we are on that matter this morning.
Over 5,000 Discovery Items Dumped On Defense DURING Trial
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.
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.
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.
OK, folks, that’s it for early morning content, now I’ll turn to the day’s LIVE streaming of court proceedings, as well as our LIVE blogging throughout the day, which you can follow at Legal Insurrection.
Here’s the LIVE streaming of today’s proceedings here:
And here’s our LIVE blogging of today’s proceedings:
Course Special: Lawful Defense Against Rioters, Looters, and Arsonists
Before I go, in view of the ongoing riots raging presently in Minneapolis, and likely to explode across the nation when this case arrives at a verdict (or mistrial), I’ve also taken the liberty of putting together a special opportunity to access our best-selling course, “Lawful Defense Against Rioters, Looters, and Arsonists,” available in both online streamed and DVD formats. You can learn more about that course, by clicking here.
And thanks, as always, to both Legal Insurrection and CCW Safe for the support that makes my coverage of this case possible.
–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 force class 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.
[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]
Rioting. I believe Blackstone said that even though rioting was a misdemeanor offense, rioting presented such an imminent threat to life, limb, and property that anyone was justified in using deadly force to disperse a riot once the rioters actually began using physical force against persons or property, even if the rioters had not been officially read the riot act and ordered to disperse. I can’t help but think that most any riot we have seen in America could have been dispersed immediately with less than one 25 round box of 00 buckshot, and probably with less than one 25 round box of BB’s.
Does the blanket 5th right with hall open the door to an appeal by Chauvin if convicted ie: unable to provide an adequate defense without possible other suspect? No even compelling testimony, just ” I exercise my 5th amendment right” a half dozen times in front of the jury?
I know that a Defendant can “sue” his lawyer on appeal (“sue” is probably the wrong word here, but I can’t think of the correct word right now) for not providing an adequate defense (although I think it’s currently harder to do than it ought to be), and normally I’d expect such a suit be brought because the lawyer in question was just plain incompetent … but this trial is causing me to wonder if a Defendant can “sue” his lawyer for not providing an adequate defense merely because the lawyer was unable to handle the deluge that the Prosecution dumped on them, and the Defense simply didn’t have the resources to handle such a deluge.
To the degree that the blame of the fizzling of Brodd’s use of force expert testimony rests on Nelson, I wonder if it’s a sign that Nelson has been pushed beyond his limits as a human being in dealing with what has been dumped on him by the Prosecution, and permitted by the judge.
The defense might be well served by calling a legal historian to give evidence on the use of prone restraint and pressing as a historical use of nondeadly force by the common law courts. Prone restraint on a stone floor and pressing was used by the courts to compel a defendant to enter a plea in a felony case. The court did not have jurisdiction to punish a felony unless the defendant subjected himself to the jurisdiction of the court by entering a plea of guilty or not guilty. To compel a defendant to enter a plea the approved procedure under the common law was prone restraint and pressing. Pressing was not a form of execution, the intent was not to kill the defendant, but to use nondeadly force to compel the defendant to enter a plea so the court would have jurisdiction to punish defendant if he was found guilty of a felony offense.
It appears that the pressing started with a four hundred pound iron weight on the defendant’s chest and that if the defendant did not enter a plea within the first 24 hours of pressing, stones were added to the iron weight everyday thereafter until the the defendant either entered a plea, or died from crushing or from the foul water (I assume sewer water) that he was given to drink during the course of the pressing. Some defendants lived for days and there is record of the weight going as high as 700 pounds. This kind of blows a hole in Dr. Tobin’s theory that prone restraint is eminently dangerous, or that pressing with a weight of less than 400 pounds is eminently or imminently dangerous.
Of course the defense also needs to present a credible use of force expert to present evidence that prone full body restraint is the lowest level of force that officers have at their disposal to restrain and protect a suspect who is having a violent fit. Without it their only options would be to beat, tase, or shoot the suspect.