Derek Chauvin

A Lawyer Weighs in on the Derek Chauvin Murder Trial; Here’s What the Media Is Not Reporting

Photo Credit: Image by Arek Socha from Pixabay

If you read only the mainstream media’s coverage of the Derek Chauvin murder trial, you might think that the former police officer is on the verge of being convicted of second degree murder or at the very least, third degree murder.

After the prosecution’s star witness, Dr. Martin Tobin, “a pulmonologist who specializes in the mechanics of breathing,” testified last Thursday, The New York Times reported: “Expert Witness Pinpoints Floyd’s Final Breath and Dismisses Talk of Overdose: A pulmonologist told jurors that Derek Chauvin pressed 86.9 pounds onto the neck of George Floyd, who tried to push himself off the pavement with his fingertips.”

Asked what he believed was George Floyd’s cause of death, Dr. Tobin replied, “You’re seeing here fatal injury to the brain from a lack of oxygen.”

Dr. Tobin explained that it was difficult for Floyd to breathe with his rib cage flattened against the pavement, his hands cuffed behind his back and the “placement of Mr. Chauvin’s knees on his neck and back.”

The Times wrote that Dr. Tobin’s “testimony may help prosecutors overcome the fact that the official autopsy report did not use the word ‘asphyxia,'”

RedState’s Shipwreckedcrew, a lawyer, weighed in. He wrote that “during his [Dr. Tobin’s] testimony, he clearly stated that the positioning of Chavin’s knee had little or no effect on Floyd in connection with the mechanism which caused his death.” (Shipwreckedcrew’s take differs from that of the Times’ writer.)

His analysis follows:

They knew from the autopsy report leaked in the summer of 2020 that Floyd’s airway showed no signs and damage and his breathing was never impaired in that respect. They knew he had not suffered a loss of blood flow to the brain from Chauvin’s knee — rudimentary understanding of a carotid artery chokehold includes knowing that both arteries need to be constricted at the same time to induce someone to pass out and that such a result happens in a matter of seconds, not minutes as was the case on that street in Minneapolis.

As Dr. Tobin explained, Floyd died as a result of the position of his body on a hard surface, the fact he was handcuffed behind his back, and because the four officers at various points in time were using their body weight to pin him to the ground in order to keep him from moving. The combination of these factors caused a decrease in the ability of Floyd’s lungs to expand and contract to take in oxygen. The reduced intake of oxygen into his lungs led to a gradual reduction in brain activity over the few minutes he was kept in that position — as Dr. Tobin explained, brain function consumes 20% of all the oxygen taken in via the lungs. As Floyd’s oxygen intake decreased his brain function declined –including the brain’s signals through the nervous system to Floyd’s respiratory system to breathe. This problem grew gradually worse until he simply stopped breathing altogether. This respiratory arrest led to a heart attack which killed him while he was on the street.

Then he turns to the legal questions. Chauvin is facing three charges: Second degree murder, Third degree murder and Second degree manslaughter.

Shipwreckedcrew writes that Dr. Tobin’s testimony takes the pressure from Chauvin’s knee out of the story. (But again, there’s a conflict between his opinion and that of the Times’ writer.)

However, “the law provides that even if Chauvin’s conduct was a ‘substantial contributing factor’ in Floyd’s death, Chauvin is still not guilty of any crime unless the prosecution ALSO PROVES that Chauvin’s conduct was “wrongful”. For example, if an officer shoots someone he believes is trying to kill him, that is not “wrongful” conduct. “The same rationale holds true if Chauvin’s actions towards Floyd were not “wrongful” — a standard which is based on the “totality of circumstances” and based on what a “reasonable officer” in the same situation would have done.”

I posted a video last week that showed Floyd becoming quite agitated/hysterical when he was placed inside the police car. And, if you recall, he repeated “I can’t breathe” several times. He then asked to be put on the ground.

Finding Chauvin guilty is going to come down to a question of whether the specific acts that impaired Floyd’s breathing were “unreasonable” and thereby “wrongful” under a totality of the circumstances. Based on Dr. Tobin’s testimony, that is going to focus on three main issues — 1) that Floyd was on a hard surface in a face-down position, 2) that Floyd was handcuffed behind his back, and 3) that Chauvin and the other officers used their body weight at different times to keep Floyd pinned down to the ground while they waited for EMS to arrive.

To convict Chauvin of “second degree” murder, the jury will be instructed that they must find that “Chauvin intended to kill Floyd”, in that he acted “with the purpose of causing death and believed the act would cause that result.”

There is simply no evidence presented anywhere in the prosecution’s case that would support such a finding, and I would not be surprised if the Judge dismissed this count when the prosecution rests its case.

To convict Chauvin of “third degree” murder, the jury will be instructed that they must find that Chauvin’s “intentional act was imminently dangerous to human beings and was performed without regard for human life.”

Killing George Floyd was not Chauvin’s intention. The officers wanted him to remain in the car until the EMS arrived. When that didn’t work out, they subdued him on the ground, as per his request, and waited for EMS to arrive.

It was the other three factors that led to Floyd’s inability to breath — being handcuffed in a prone position with Chauvin using body weight to keep him from moving. How will the prosecution argue to the jury that it was “imminently dangerous” and “without regard for human life” when those three tactics are taught to officers as part of their training?  Was there a bad outcome in this particular episode — no question.  But an atypical bad outcome in this episode is NOT evidence that the actions of Chauvin were “imminently dangerous” or done “without regard for human life.”  I would not be surprised if the Judge dismissed this count as well based on the trial evidence.

That leaves the state with the manslaughter charge — a killing of another person by way of a culpably negligent act. To convict Chauvin of manslaughter, the jury will be instructed that they must find that Chauvin’s conduct created an unreasonable risk and that he took a chance of causing death or great bodily harm to Floyd.  Chauvin’s conduct must have been intentional, and he may not have intended harm to Floyd, but an ordinary and reasonably prudent officer in the same circumstances would have recognized the strong probability of causing harm to Floyd from the conduct.

Shipwrecked discussed that the media coverage has focused on the direct examination of the prosecution’s witnesses which, he says, is usually well-rehearsed. There are usually no surprises. He explains that “the prosecutor and the expert have carefully gone over the expert’s opinions, and the questions and answers are carefully scripted out so the jury hears exactly what the prosecutor wants the jury to hear.”

It is under cross-examination where “the medical experts” tend to fall down and hurt the prosecution’s case. According to Shipwreckedcrew, Chauvin’s attorney Eric Nelson did an excellent job.

He obtained admissions from all of them that there were circumstances present during the process of Floyd’s arrest and detention that altered the conclusion about what a “reasonable officer” would be expected to do in Chauvin’s position.

But an expert’s opinions are only as good as their ability to withstand scrutiny under cross-examination.  Every “use of force” expert called by the prosecution took multiple hits when the “unfriendly” questions began.

Here is an example of one of those “admissions” from a recent post. Last week, Nelson compared video recorded by a bystander from the sidewalk with footage taken from the bodycam of one of the officers. The bystander’s video made it appear as if Chauvin’s knee was pressing against Floyd’s neck. In the officer’s bodycam footage, taken from a different angle, Chauvin’s knee appeared to be placed on Floyd’s shoulder blade.

During the cross-examination of Minneapolis Police Chief Medaria Arradondo, Nelson played the two videos. Nelson said, “From the perspective of Miss Frazier’s camera, it appears that Officer Chauvin’s knee is on the neck of Mr. Floyd.”

Arradondo replied, “Yes.”

Nelson asked, “Would you agree that from the perspective of Officer Keung’s body camera, it appears that Officer Chauvin’s knee was more on Floyd’s shoulder blade?”

Arradondo replied, “Yes.”

“I have no further questions,” said Nelson.


Note: Shipwreckedcrew recommended the analysis of Attorney Andrew Branco. He’s on Twitter under @LawSelfDefense, and posts daily blogs about the trial at Legal Insurrection.

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