Chauvin Trial Day 11 Wrap-Up: Trial Expected to End Testimony This Week

by Andrew Branca

Today the prosecution presented three of its final witnesses, as the state closes in on the end of its case in chief.
 
I’ll get to those witnesses in a moment but I don’t want to bury the lede, so here it is:
 
At the end of court today Judge Cahill informed the jury that they should expect testimony to end this week, and that they should arrive Monday ready for deliberations to begin-which means, bring an overnight bag, because once deliberations begin, sequestration of the jury begins.
 
Indeed, testimony may end prior to Friday—the judge informed the jury that the only reason he’s not going to plan on closing arguments happening on Friday is right after closing they need to be sequestered, and he doesn’t want to have to send the jury into sequestration for the weekend.
 
The obvious implication given that the state hasn’t yet quite concluded its case in chief? That the defense case in chief is expected to be no more than three days in duration.
 
That’s in contrast to roughly 11 days of the state’s case in chief.
 
So, we’re almost at the end of this rodeo, folks. I expect daily content on this trial from Law of Self Defense through the end of this week, then Monday we’ll start our traditional VERDICT WATCH! and of course we’ll share the final verdict—or mistrial—news with all of you as soon as we get it ourselves.
 
With that out of the way, let’s jump into today’s witnesses.
 
If the headline to today’s post didn’t give it away, two of today’s witnesses were among the most annoying seen in this trial, and indeed among the most annoying I’ve ever seen anywhere.  Those were Dr. Jonathan Rich, a Cardiologist out of Chicago, and Professor Seth Stoughton, a Law Professor and purported use-of-force policy & standards expert out of North Carolina, I believe.
 
Now, let me state up front that “most annoying” is my own subjective perception of these two, and perhaps reasonable people—including the jury—would disagree with my assessment. That’s why we include the video of their testimony, so you can make your own call on such matters.
 
STATE WITNESS DR. JONATHAN RICH, CARDIOLOGIST
 
Dr. Rich’s testimony as a cardiologist struck me as entirely cumulative of previous testimony heard earlier in this trial—and if you don’t understand the term cumulative as a legal term of art, read our mid-day post today to get a solid grasp of that.
 
The general idea is that at some point the essentially identical testimony from numerous sources tends to have a biasing effect on the jury, and thus is generally discouraged by the courts. They prefer you get your best witness on whatever the issue or fact recounting is, use them, and move one. Don’t use a half-dozen (or, in this trial, more!) witnesses to effectively provide mere variations on the same testimony.
 
We really didn’t learn anything from the state’s paid expert witness Rich that we hadn’t heard from the other state’s paid expert witnesses—as far as the state’s paid expert witnesses are concerned, the sole cause of the death of George Floyd was the subdual neck restraint and positional asphyxia to which he was subjected by the officers involved in his arrest.
 
I mean, we get it.
 
The only real difference was that Rich presented his view of the same conclusion using the wide-eyed manner and the tone of voice of an adult reading a “I’ve got two Daddy’s” sexual orientation guidance manual to elementary school children would use.
 
Again, that’s arguably (unquestionably) subjective on my part. Maybe as far as the jury was concerned, he completely knocked their socks off. He certainly had the CV of a world-class cardiologist moving up in the world.
 
Indeed, I had the definite impression that Dr. Rich’s next “move up” was to enter the world of trial expert witness testimony—once again, in Dr. Rich we have a state expert witness who has never before been an expert witness. First time out. In a case of this high profile.
 
And he did it for free, at least until he actually showed up to testify in court, at which point he’s getting paid $1,200 a day. For all his prior effort (an effort other state’s expert witnesses have indicated exceeded 100 hours of work) it was free.
 
Again, in the context of Dr. Rich, he said what the state needed him to say:
 
George Floyd died from cardiopulmonary arrest caused by low oxygen levels, those were induced by the prone restraint and positional asphyxiation that he was subjected to.
 
Of course, we’re once again dealing with a physician making detailed clinical findings based on other people’s reports, and smartphone, body camera, and surveillance video, without ever having actually seen or examined the patient in any way.
 
Further, like all the previous similarly minded physicians who similarly lacked direct examination of Floyd, Rich very much presented the appearance of someone who’d watched the most awful looking part of the Floyd bystander video, drawn an immediate conclusion, and then identified an opportunity for professional advancement by working his way backwards from that conclusion to a speculative medical rationale consistent with where they once again wanted to end up.
 
I won’t spend much time on his direct testimony, as the quote above basically captures it.
 
Like some earlier state expert witnesses, Rich claimed to be able to identify on video the precise moment that Floyd went into cardiopulmonary event, right there on the street in front of Cup Foods—in contrast to other state expert witnesses, for example Dr. Baker the only physician in all of this who actually laid hands on Floyd’s body for post-mortem examination, and who testified that he believed Floyd was alive when put into the ambulance and didn’t die until he reached the hospital.
 
If that sounds to you like the state’s expert witnesses fostering reasonable doubt around Floyd’s manner of death, welcome to the club.
 
Dr. Rich also had some views of cardiovascular physiology and function that struck me as rather odd. Granted, I’m no cardiologist. Still—very odd.
 
For example, George Floyd’s enlarged heart, technically cardiomegalopathy driven by hypertension of the sort that ultimately leads to congestive heart failure and death, was not the sign of compromised physiology, but actually a strength—literally.  You see, that was just Floyd’s heart getting stronger, just like if you go to the gym and lift weights.
 
In other words, cardiomegalopathy is not a glitch, it’s a feature!
 
I kid you not.
 
Rich also participated eagerly in the prosecution’s preferred means of medical deception of the jury, which is to conflate narrowly defined medical terms of art with much broader commonplace terms for physical ailments, and then deny the presence of the narrow term to suggest denial of the broader common term.
 
Example: Did Floyd have a “heart attack”? Why, no, there was no sign of ischemic occlusion in the coronary arteries.
 
Of course, that doesn’t mean that Floyd didn’t die as a result of his heart failing because it received an insufficient supply of oxygen due to causes largely independent of Chauvin’s knee, such as 90% occlusion of coronary arteries, fentanyl overdose, methamphetamine use, a lifetime of drug abuse generally, pathological hypertension, COVID, the decision to fight four officers in an effort to avoid lawful arrest.
 
It merely means that the precise manner of Floyd’s heart stopping was not an abruptly formed clot resulting from the rupture of atherosclerotic plaques in his coronary arteries—and Dr. Rich was happy to detail to us that no such plaque rupture was reported to have occurred.
 
For anyone who doesn’t understand the distinction, however—and who on the jury would?—the conflation works. It sounds as if the annoying and patronizing doctor said that Floyd’s health couldn’t have pooped the bed for reasons other than Chauvin’s knee, which was, of course, the state’s goal in calling Rich to the witness stand.
 
Dr. Rich also had remarkably succinct and definite notions on whether anything other than Chauvin’s knee could have killed Floyd. Fentanyl overdose. Nope. Meth? Nope. Why not? Floyd’s a drug user, probably had tolerance.
 
Any mention of Floyd being “clean” for a considerable period of time, until a couple of weeks prior to his death, as recounted in testimony by his co-addict lady friend, suggesting a much reduced tolerance relative to a chronic user? Nope.
 
Dr. Rich also happily participated in another common rhetorical sleight of hand used repeatedly by the prosecution on the issue of whether Floyd could have overdosed.  The state asks Rich if Floyd’s death had the typical appearance of someone suffering solely from a fentanyl overdose—the sleepiness, for example, and difficulty speaking clearly or responding properly to others?
 
Nope, answers, Dr. Rich, I saw nothing like that in all the videos I watched.
 
Setting aside the testimony the jury may never hear about Floyd’s passengers in his SUV being unable to awaken him to the point that they called others to come pick them up from the intersection of Chicago and 38^th, the question entirely ignores the broader context of Floyd’s actual circumstances.
 
What’s a fentanyl overdose look like when, for example, it’s combined with meth, a powerful stimulant? When it’s combined with acute ingestion followed immediately by a 10-minute physical confrontation with four police officers?  I expect that begins to look a lot more like what we observed Floyd experiencing.
 
Rich also informed the jury that “I counted the minutes that Floyd was pulseless without CPR,” as part of the state’s argument that delayed care by Chauvin and the other officers is what killed Floyd.
 
In fact, the period of time from which the officers determine they can’t find a pulse to the arrival of the paramedics the officers know to be en route per code 3 lights and sirens is about 90 seconds, not minutes.
 
None of that matters, however, because the good Dr. Rich informs the jury that had Floyd not been subject to the neck compression and subdual restraint to which he’d been subject for 9 minutes and 29 seconds, he’d still be alive today.
 
In follow up the state asked if it was true that nobody, not a healthy person on the face of the Earth, could have survived that 9 minutes and 29 seconds of neck compression and subdual restraint. Defense counsel Nelson objected, Judge Cahill sustained the objection, the state asked the question a second time in slightly modified form, objection again, sustained again.
 
The bottom line from Dr. Rich’s testimony was that nothing else about Floyd could possibly have killed him, but for the conduct of the officers.  90% occlusion of coronary arteries? Nope. Fentanyl overdose. Nope. Pathological hypertension? Nope.
 
Other people die of those things? Yes.
 
But not Floyd? Nope.
 
Could Floyd have had a heart attack? Nope, no chest pain.
 
Left unasked by Nelson, however—might 11 ng/ml of the powerful pain reliever fentanyl have allowed for a painless heart attack without chest pain?  Alternatively, might the pain-inducing effects of the pills Floyd have taken—remember, essentially identical pills had sent him to the ER previously in similar excruciating pain—have simply masked the chest pain of a heart attack?
 
Here again Dr. Rich made a remarkable characterization of heart disease for a cardiologist.  Remember when having a pathologically enlarged heart was a feature, not a glitch?
 
Well, apparently having 90% occluded coronary arteries was also a feature, and not a glitch. Because when the coronary arteries got sufficiently occluded, the heart would begin to grow collateral blood vessels to make up for the constricted blood flow of the primary coronary arteries.
 
Indeed, it’s actually less risky to have a higher degree of coronary artery blockage that fostered collateral blood vessel formation than it is to have a lower degree of coronary artery blockage! Who knew?
 
As wide-eyed and dramatic as Dr. Rich was on direct by the state, he was tremulous and shaking on cross-examination—not unusual for someone serving as an expert witness in a prominent trial for the first time ever.
 
Nelson also spent some time with Dr. Rich discussing Floyd’s paraganglioma, which has the theoretical capability to dump a massive bolus of adrenaline into the body and cause a cardiac arrest.  This never seemed to go anywhere really, and I’m undecided about whether Nelson is doing just enough to establish some foundation for a medical expert witness he plans to bring into court for the defense case in chief.
 
As his last question, Nelson asked if it were possible after the lungs stopped for respiration to continue.  This seemed an odd question, and highly unlikely physiologically, but it turns out that’s why I’m a small-town lawyer and not a doctor.
 
According to Dr. Rich it is, indeed, possible for there to be a few extra breaths after the drivers of respiration have given up the ghost, although he wasn’t certain of the mechanism behind that physiological effect.  (It would later turn out one reason this question was important was that it appears the officers believed Floyd to still be breathing after the point where some state witness claimed they’d identified his death from their observation of videos.)
 
There was a brief re-direct and re-cross of Rich, but nothing much of substance.
 
Here are the videos of the Rich testimony.
 
Rich Direct Questioning
 

 
Rich Cross-Examination
 

 
Rich Re-Direct
 

 
Rich Re-Cross
 

 
STATE WITNESS PHILONISE FLOYD
 
The next state’s witness was Floyd’s brother, Philonise Floyd.  I won’t spend much time on this testimony, because the brother has no first-hand knowledge about the events surrounding Floyd’s death, he isn’t positioned to offer an expert opinion, and so he can’t offer testimony that would be relevant to the legal merits of the prosecution or defense in this case.
 
So why have him testify at all? Well, most states would not allow such testimony at this point in a trial, precisely because it doesn’t go to the legal merits of the case.
 
It’s an odd feature of Minnesota law, however, that they allow what they call ‘spark of life’ evidence in the prosecution’s case in chief. This is basically testimony about how wonderful the deceased person was, how much his family loved him, and so forth.
 
In most states such testimony is permitted, but only in the sentencing phase of the trial. In other words, after guilt has been determined the court can take such testimony into account for purposes of sentencing. Normally, however, such testimony is deemed not relevant to determining guilt or non-guilt in the first place.
 
Before I embed the “spark of life” testimony below, I do want to make clear that I’m addressing it only lightly because of its lack of relevance to the merits of the case, and not due to a lack of merit itself. Whatever one might think of George Floyd, and he certainly appeared to have a well-checkered history, I’ve no doubt his family loved him, and miss him terribly. And that’s as real as anything ever is.
 
That said, here’s that testimony—it’s solely direct questioning the defense widely declined to conduct cross.
 
Floyd Direct Testimony
 

 
STATE WITNESS SETH STOUGHTON
 
The last state witness of the day, and amongst the two most annoying of the trial, was Professor Seth Stoughton. He’s a law professor who had briefly (< 5 years) served as a police officer in Florida, and is now into the use-of-force expert witness game. And, at least in this case, the game pays well—he testified that he’s been paid about $25,000 for his expertise by state prosecutors, for just over 100-hours worth of work on this case.  (In my professional opinion, that beats doing the work for free, as some other state witnesses have done.)
 
I’m told by others who have looked online that Stoughton appears to be among the more rabid defund the police, reform the RACISTPOLICEMURDERERS activists out there. I make it a practice, however, to limit my trial commentary and analysis to what I actually see in court, and nothing much like that appeared in court (with one modest exception), so I’ll leave the reader to their own efforts in developing an internet-based understanding of Professor Stoughton.
 
As has now grown familiar, Stoughton was there to say the magic words for the prosecutors in this trial, and he didn’t fail to deliver the goods.
 
He purports to apply a four-step analytical framework to police use-of-force events to determine if the use-of-force in question was consistent with what would be expected of a reasonable police officer acting consistent with national generally accepted police standards.
 
Interestingly, Stoughton examines this question with zero inquiry into the standards, practices and policies of the actual department of the officer in question. That officer may have followed his own department’s policies to the letter, but if he didn’t meet the national generally accepted police standards as defined by Stoughton, his use of force was unreasonable and worthy of criminal conviction, and perhaps life in prison.
 
The four-step analytical framework consists of the following components.

Step 1. Look at the relevant facts and circumstances as they would have been viewed by a reasonable officer on the scene.
 
Step 2. Consider the degree of threat offered by the suspect.
 
Step 3. Consider the foreseeable effects of the force used by the officer.
 
Step 4. Apply generally acceptable national police standards to determine ultimate reasonableness.

In my modest opinion this is not a wildly unreasonable analytical framework for evaluating the reasonableness of an officer’s use-of-force, with the obvious caveat of GIGO.
 
That is, just as with any algorithm, if you put Garbage In, you get Garbage Out.
 
And that is, of course, precisely what Professor Stoughton did in this case to arrive at the conclusion the prosecution sought.
 
This began with Step 1, where he considers the facts and circumstances as would have been viewed by a reasonable officer on the scene.  Remarkably enough, the facts and circumstances most consistent with Floyd being the victim of RACISTPOLICEMURDER were prominent in Stoughton’s inputs to his algorithm.
 
Conversely, when asked by the defense on cross-examination about facts and circumstances that are incontrovertibly in evidence from other state’s testimony, Stoughton’s memory proved substantially defective and in need of constant refreshing, and the patronizing tone he’d adopted through direct questioning turned on cross-examination into stuttering, ums, uhs, can you repeat the question, and I don’t understand what you’re asking me.
 
Again, the prosecution returned to old tricks from prior state’s witnesses, even where those old tricks hadn’t worked out for them the first time.  You’ll recall that one prior state witness was presented with three bullet points from the MPD policy manual addressing justified use of force, and that these were presented as the entirety of the use-of-force justification analysis.
 
To refresh your recollection, those bullets were essentially:

1. The severity of the crime at issue.
2. Whether the suspect posed an immediate threat.
3. Whether the suspect was actively resisting.

On cross-examination of that prior witness, Nelson had quickly gotten them to concede that while these were indeed three factors to consider in use-of-force decisions, they were representative of the relevant factors to consider, not the entirety of those factors.
 
Maybe the state thought Nelson would forget how he’d gutted this deception the first time it had come up in this trial?
 
Well, he hadn’t forgotten, and quickly had Stoughton making the same concession on the witness stand today on cross.
 
Stoughton also played fast and loose with the concepts of “risk” and “threat.” Specifically, a threat was an active use of force by a suspect, and only that active use of force by the suspect could justify an active use of force by the officer.
 
A mere prospect of force, however likely it might be based on actual experience and facts, was merely a risk of force, not a threat of force, and a mere risk of force could not justify any degree of force by the officer.
 
This is, of course, inane on its face, and to make it appear not obviously absurd even Stoughton had to make concessions that gutted the core principle he’d just espoused.
 
For example, what about passive resisters, people who laid across a street in protest? They are not threatening anybody with imminent harm, so were police prohibited from using any degree of force upon them, even the mere force necessary to carry them from the street.
 
No, that was OK, said Stoughton, because those people were “threatening force” in some amorphous manner that didn’t actually involve a physical use of force against anyone.
 
In particular, Stoughton said, once a suspect is handcuffed, he no longer represents any degree of threat to anybody, and therefore the police should be using no force against him whatever. I guess that means once the suspect is cuffed the police are just supposed to ask him to meet them at the police station at his convenience, maybe call him an Uber?
 
Indeed, Stoughton at one point took all this to truly ridiculous lengths by suggesting that instead of trying to fight Floyd into the back seat of the squad car in attempting his lawful arrest, once he’d made them aware of his anxiety and claustrophobia the officers instead should have offered to allow Floyd to ride in the front seat of the squad car—presumably one of the two officers would take the back seat, behind the barrier, while Floyd rode up front with his partner.
 
In the real world, of course, the police consider not only active threats against themselves or others, but also the reasonably foreseeable prospects for continued or renewed threats.  A compliant driver pulled over for speeding is rarely subject to any force by the police officer involved—and I would know, I have more than my fair share of speeding tickets (I blame the motorcycle!).
 
Once a suspect has been physically non-compliant or even violent with an officer, however, a reasonable officer will position himself to be prepared for continuing or renewed non-compliance or violence.  It would be profoundly unreasonable to require officers to treat a just-violent suspect now offering to be compliant the same way they treat a suspect who has been compliant throughout the interaction.
 
But not according to Professor Stoughton.
 
As poorly thought out as his analytical approach to police use-of-force might be, however, Professor Stoughton had no doubt whatever about the conclusion it brought him to.
 
What killed Floyd according to Professor Stoughton? Can you guess?
 
Sure enough: neck compression and positional asphyxia induced by subdual restraint.
 
Who’d have guessed it.

 
Also like every other state witness testifying on these questions, it was very clear that Stoughton had started from the conclusion that Floyd’s death was the result of Chauvin’s use of force—after all, POLICERACISTMURDER!!—and then worked his way back from there to build out a rationale that would, shocking enough, bring him right back to where he started.
 
Indeed, whereas I’m largely speculating that other state’s witnesses followed this “build your rationale from the conclusion you want” approach, we actually have evidence consistent with that approach in the case of Professor Stoughton.
 
This came in the form of an op-ed that Stoughton wrote with two others (both co-authors on his latest book) in which they concluded that Floyd’s death was the result of Chauvin’s RACISTPOLICEMURDER!!! neck restraint and positional asphyxia.
 
How do we know about this Washington Post op-ed? Nelson was kind enough to ask Stoughton about it on cross-examination.
 
What’s notable about this conclusion was that the op-ed was written in a four-day period between the date of Floyd’s death and when it was published in the Washington Post, and before Stoughton had seen anything other than the bystander video—no medical reports, no autopsy report, no toxicology results, no hours of body cam footage or surveillance camera footage, no 40,000 pages of investigative reports and MPD policy and training materials.
 
Who needs all that when you already know what happened from the bystander video?
 
Incidentally, one of the most common and effective means of impeaching the credibility of a purported expert witness is to be able to demonstrate that they approached the question in issue not with an unbiased, impartial and open mind, but instead with having decided the question beforehand.
 
Which is exactly what Professor Stoughton did in this case.
 
The state was also eager to use Stoughton’s testimony to undercut the defense narrative that the hostile and threatening mob killed Floyd, or at least substantially contributed to Floyd’s death by complicating the ability of the officers and responding paramedics to do their jobs
 
Remember, the mob was perceived as sufficiently threatening by the paramedics that they elected to do a “load & scoot” rather than treat Floyd on site—one consequence of which was it took much longer than would otherwise have been the case for the backing fire department responders to meet up with the ambulance they didn’t know had moved three long blocks away.
 
To do this, Prosecutor Schleiter would show the witness and jury an image of the bystanders on the sidewalk, always as a still photo, typically early in the event when there were only four or five passively watching Floyd’s arrest.  Another photo a few minutes later, again showing only six or seven unobjectionable bystanders filming with their phones.
 
At no time did Schleiter show video of the angry, shouting mob hurling insults and threats of imminent physical violence, because of course not.
 
Did the apparently passive observers in the still photos qualify as something that should have distracted the officers from their attention owed to the suspect in their custody. Not if they are reasonable officers, answered Stoughton.
 
The prosecution also shared images of several selected points in the restraint of Floyd—these were generally not still photos, but close to it—little 10 second clips of different portions of the event, such that an entire context was difficult or impossible to draw.
 
Was Floyd a threat here? No. Here? No. Here? No.  And because a suspect being a threat, in the odd way threat was defined by Stoughton, was a required element of a finding of justified use-of-force, by Stoughton’s algorithm has applied to the selected facts and conclusions he favored, there was never a point after Floyd was on his knees after fighting himself out of the squad car that the officers had any privilege to use any further force against him whatever.
 
After all, Stoughton said—and I’m not making this up—Floyd even said “thank you” after fighting his way out of the squad car, so the officers knew that any resistance he’d ever intended to offer them was certainly over now.
 
The state spent 90 minutes on direct questioning of Stoughton, but it was all of the same tenor as described above, so I’ll leave my detailed commentary at that. Of course, I provided the video of his direct here for your viewing pleasure:
 
Stoughton Direct Questioning
 

 
On cross-examination by Nelson, we suddenly saw the patronizing Stoughton on direct suddenly turn forgetful, stupid, and apparently unable to comprehend simple and direct questions—where he wasn’t, that is, providing answers wildly beyond the scope of the question actually asked.

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