Timothy Birdnow

So the prosecution in the Chauvin trial almost got the whole thing thrown out as a mistrial the other day. Seems that they wanted to spring a little October Surprise on the Defense.

Apparently they had an expert witness - Dr. Martin Tobin - who supposedly contacted them after the Defense presented expert testimony about possible carbon monoxide poisoning of Floyd. Said witness claimed to have had a report from the Hennepin County Medical Examiner showing no major increased levels of CO in Floyd's system. The judge ruled this was inadmissible, although he allowed the expert to testify. He gave strict instructions to not mention this report which the Defense had clearly not been given.

Prosecutors are not allowed surprises.

Dr. Tobin mentioned it on the witness stand anyway.

Judge Peter Cahill held a sidebar conference with the lead Prosecutor, who argued the comment did not prejudice the jury in that the statement didn't convey enough information. The witness said he didn't believe Floyd suffered carbon monoxide poisoning because of a report. The Judge, who should have declared a mistrial at this point, let the case proceed.

This gives Chauvin grounds for an appeal if he's convicted.

This tells me a few things. For one, it suggests the Prosecution is not confident in their case, that they had to spring a surprise witness on the Defense. I don't for a moment believe they didn't know about this report and that it was brought to their attention at the last moment by Dr. Tobin.

Given the thoroughness with which the Prosecution has gone after Chauvin, this doesn't seem likely they would have overlooked this - especially since they knew the Defense would bring up CO poisoning.

I think these people are willing to do whatever it takes to win this.

Second off, I wonder if the Prosecution didn't fall into a trap here. Frankly, carbon monoxide poisoning might help Chauvin beat the murder rap but it actually hurts him with the Manslaughter charge. It could be argued he was careless with Floyd's life by holding him down next to a car tail pipe. But by arguing so vociferously against this possibility the Prosecution makes getting a conviction for Manslaughter less likely. This actually helps the case made by the Defense. Murder is a much harder charge to make stick, especially in this circumstance where you cannot prove intent to kill Floyd.

Remember, the Defense need but seed reasonable doubt. As the Prosecution has quibbled over every detail of the Defense's case, reasonable doubt would loom larger, in my opinion. The folks on Court TV didn't agree; one of the analysts said this will mean the jury will go to a gut feeling and ignore the evidence. Perhaps. But if they follow their instructions they will have to take the Defense case seriously, and that left plenty of room for reasonable doubt.

It makes me wonder; was all this overkill by the Prosecution intended to convict Chauvin or to push away the jurors and get a non-conviction? Maybe I have a conspiratorial bent here, but I have believed all along that there are people in Minnesota government (most notably Attorney General Keith Ellison) who want rioting and chaos. It may be they overplayed their hand purposely to get an acquittal and thus rioting, and to in turn get lots of donations in the future and gin up anger which will translate into votes.

Maybe.

And maybe it is what it appears, a rather desperate attempt on the part of prosecutors to win a very visible case. And maybe they are just going at this way too hard. And maybe they never had a solid case to begin with and so had to send in an army of "expert witnesses" to drown out the facts of the case. Bear in mind an expert witness is still giving an opinion, not stating fact.

This next week should be very interesting.

BTW Chauvin's decision to not testify was the smart move. He had nothing to gain from it. The Prosecution would try to twist him into a pretzel, and he would be in danger of making misstatements. IF he was acquitted but was caught in an error they may well have gone after him for perjury. Getting on the stand quite perilous for him. And all he could do was act remorseful and say he feared letting Floyd up (which he had every reason to be fearful as Floyd was much larger than Chauvin and had been resisting arrest, and there was a hostile crowd around putting pressure on Chauvin.)

Posted by: Timothy Birdnow at 10:16 AM | Comments (3) | Add Comment
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