Legal Insurrection: the Chauvin trial
Just reminding you that Andrew Branca is reporting in-depth at Legal Insurrection on the Chauvin trial. His first two posts from yesterday are this and this.
I believe the plan is for him to write at least one post every day the trial is in session. It’s probably the most accurate and thorough reportage you’ll get on the subject.
Here’s an excerpt:
The defense narrative of innocence in this case is obviously that what killed Floyd was not Chauvin’s knee but rather the three-fold fatal dose of fentanyl found in Floyd’s body upon medical examination. The belief is that when he realized he was about to be arrested for attempting to pass a bad $20 bill, Floyd ingested meth and fentanyl drugs he had on his person in order to prevent their discovery by the arresting officers. The dose ingested, unfortunately for Floyd, for Chauvin, for all of Minneapolis, and for the United States generally, was more than sufficient to prove fatal.
Almost exactly a year prior to the day Floyd died with a fatal dose of fentanyl in his body he was also the subject of a lawful arrest and also apparently ingested illicit drugs to avoid their discovery by the arresting officers. In that case Floyd received hospital care and did not die as a result of the drug ingestion.
Naturally, with a nearly identical drug ingestion event having occurred with Floyd merely a year prior to his death, the defense would like to get evidence of that prior event in front of the jury. Their prior efforts to get that event admitted into evidence, however, had not gotten traction because the judge perceived the evidence as more prejudicial than probative.
In law, introducing evidence of a prior action in order to establish a pattern of behavior is quite limited:
The defense argued this afternoon that the evidence of the 2019 ingestion event ought to be admitted as proof of a modus operandi, or “method of operation,” in effect that “this is what Floyd does when confronted by police.”
Modus operandi is an exception allowing for the admission of prior bad act evidence when the prior bad acts appear to be a consistent pattern or practice of behavior. So, someone charged with second-story burglary might not have a prior drunk driving conviction admitted as evidence at their trial for second-story burglary, but if they have prior convictions for second-story burglary in their record those convictions might well be admissible as a pattern or practice of behavior in their trial for the newest charge of second-story burglary…
In making this argument before Judge Cashill this afternoon, however, defense counsel met a cool reception…
And if the evidence of the prior dug ingestion event had little probative value, in the context of other available evidence of Floyd’s drug toxicity, it begins to look a lot like it’s being submitted largely to show a propensity for bad conduct—which is not a proper basis for the admission of evidence.
So, there’s a general rule of evidence, termed 404(b), that generally excludes prior bad acts or character evidence that’s offered as proof of unrelated currently charged misconduct, stating:
404(b). Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. …
As those ellipses suggest, however, there are a number of exceptions to this exclusion of admissibility—like the modus operandi exception we discussed above.
… It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
If memory serves me, I believe this is because – as I learned long long ago in a great course in law school on jurisprudence – in our legal system the basic general premise is that we judge the act, not the character of the person. The latter ordinarily comes into play in the sentencing phase, however.
I confess to not be following the news much, but how in the hell has the trial of Chauvin or any of the accused ex-cops NOT been moved to a different jurisdiction? How in the world can anyone expect to seat a fair and impartial jury in Minneapolis after the violence last year?
Mike
I looked up the question of how quickly a fentanyl overdose happens. It’s fast, apparently, so the idea that he swallowed the drugs when the police were called on the counterfeit currency call is possible. But it’s not necessary; the autopsy shows a fatal overdose. Unless the prosecution is going to try to prove that the police forced the stuff into Floyd, his behavior from the previous year doesn’t matter.
as I learned long long ago in a great course in law school on jurisprudence – in our legal system the basic general premise is that we judge the act, not the character of the person.
George Floyd is unable to defend his character at trial, or explain that the defense is mistaken about how he typically interacted with police… I remember how disgusted I was with the Menendez brothers putting their parents on trial. I think Judge Cahill has the right inclination here.
It’s not his character, it was his pattern of behavior in prior similar circumstances.
om:
Yes, as the excerpt says, that’s the modus operandi exception. It can’t be used just as evidence of character, but can sometimes be use as evidence of modus operandi if that is relevant. In this case it’s not clear its probative value is strong enough to qualify.
Kate:
It could matter if for some reason it is necessary to indicate a reason why he would have taken such a large dose as to prove fatal.
If Mr Floyd rapidly hid some drugs because the cops were on the way, it might add context to his statement on the transcript to which Neo provided a link early last summer, that he was hoopin’
Neo, I don’t know why they’d have to provide a reason for Floyd to have taken the overdose. He clearly did, as the toxicology tests showed. If someone else gave it to him, and he died, then that’s a different criminal case.
This makes no sense to me. I would think that “evidence of a prior action” might be prohibited to protect the DEFENDANT, but not as evidence of his innocence. Of course Floyd is on trial here in a sense, since his guilt would be the main evidence of innocence for the defendant, where the defendant should be given the benefit of the doubt.
If the defendant is on trial for rape, then maybe evidence of previous rapes would be prohibited. But if his accuser had a history of fake rape claims, this should certainly be admitted in his defense.
}}} In this case it’s not clear its probative value is strong enough to qualify.
HOW is it “not clearly strong enough?” Not seeing that in the LEAST manner.
If he did it, it would explain how and why he got into the situation he was in, entirely of his own accord — even more so than the general fact of an OD itself…
And NEARLY completely, if not completely, exonerate the officer. Which seems to me the real reason, not the “evidentiary rules”, for why they want to exclude it.
The man had a clear propensity for doing something that likely is exactly what killed him, not the actions of the officer. That’s the FACTS, not the spin.
No matter what happens, Minneapolis is going to burn.
Apparently, one prospective juror told the judge that he did not want to serve because of fear of rioters attacking his home and his family.
I can’t say that he is wrong or that I blame him. This trial should have been granted a change of venue. To where? No idea…
OBloodyHell:
Probative in terms of the issue in the case, which is Chauvin’s guilt or innocence. What caused Floyd’s death is the issue, not why he took the drug. When he took the drug might be an issue, but since he had a lethal dose in his blood when he died, the issue of when he took the drug may be irrelevant. How Chauvin’s knee on the neck contributed to that death, or whether it did, is certainly an issue, but Floyd’s behavior a year earlier has no relevance to that.
From the Branca article I already linked in the above post:
I fail to understand how this is not 100% relevant. It explains how the overdose might have happened at that exact time.
I can follow the judge’s line of reasoning – why does it matter how or exactly when he took the drugs, if we’re not contesting the fact that the drugs were in his system? But you know what? Everyone who NEEDS this case to prove their point that ACAB and the police are hunting down black guys in the streets and to justify the rioting, is going to contest every bit of evidence that George Floyd’s death wasn’t the fault of the police. They’re going to pretend that the autopsy report is a cover-up somehow. The prior incident does a lot to boost the argument that Floyd took the drugs right before the encounter with police.
I think there are so many arguments here.
Knowledge – knew to ingest the drugs so police wouldn’t find them
Absence of mistake or accident – intentionally ingested the drugs to avoid arrest for drug possession
Motive – why take the drugs at that moment? because he had them on his person and he knew the police were coming and wanted to get rid of them.
and then the M.O. argument.
I would even first try to argue it isn’t character evidence, we’re not offering it as a bad act to show this was a bad dude because he used drugs or avoided arrest; it’s just relevant plain and simple. I agree with the defense attorney that it puts together a piece of the puzzle. It’s a missing link in the story of Floyd’s death.
Besides, it’s kind of twisted because these rules are not there to assist the prosecution in the first place.
BTW, I’m still open to proof that Chauvin is guilty anyway because his actions hastened Floyd’s death.
If you look at the transcript he didn’t ingest the drugs. He denied that he was high and later said he was hooping. That is street slang for stuffing the drugs up his rectum. As far as I know the only drug you are supposed to take that way is PREPARATION H.
Ray:
His denial isn’t especially important. Obviously, he ingested drugs at some point that day.
As others here have pointed out, all that matters is the factors that led to Floyd’s death. Floyd died of a self-administered drug overdose. The coroner’s report stated that the pressure Chauvin applied to Floyd’s neck did not result in an identifiable injury to Floyd’s neck.
That’s it, case closed.
Anything more is a kangeroo court with the verdict already rendered. The judge’s ‘coolness’ and the refusal to move the trial to an out of state location are red flags. And yes, no matter what, the rest of Minneapolis is going to burn.
This will send the most chilling of messages to cops, arrest a black man or woman for anything and you’re literally placing your life at risk.
Violent crime is way up in all major democrat controlled cities and it’s going to get worse because this trial’s verdict will send the message that black criminals now have a free get out of jail card.
I hold the ‘activist’ left directly responsible for the coming victims.
“I hold the ‘activist’ left directly responsible for the coming victims.”
Thanks like blaming the unruly child instead of the neglectful parents.
Mike
@shadow:I fail to understand how this is not 100% relevant.
Because George Floyd is not on trial and can’t present a defense even if he were.
…contest every bit of evidence that George Floyd’s death wasn’t the fault of the police. They’re going to pretend that the autopsy report is a cover-up somehow.
None of this is relevant to the criminal trial. The judge and jury have one and only one job, to decide if Chauvin is guilty of what he is charged with and what his punishment should be if so.
There is no volume of evidence that can convince large numbers of Americans that OJ Simpson or Lee Harvey Oswald were guilty either. Educating willful idiots is not what courts are here to do.
it’s kind of twisted because these rules are not there to assist the prosecution in the first place.
That doesn’t give the defense a license to say whatever they want.
And the prosecution and judge have to stay within the bounds of the law. If you have been following Robert Barnes’s commentary on judicial and prosecution practices in the last year or even paying attention to Judge Ahab you might not be do sure about what the defense should and can do. And of course there are the actions of Ellison of Minnesota to foul the pool.
“Anything more is a kangeroo court with the verdict already rendered. The judge’s ‘coolness’ and the refusal to move the trial to an out of state location are red flags. And yes, no matter what, the rest of Minneapolis is going to burn.”
Agree. I still think Chauvin is toast. “Justice” is just another word for nothing left to lose” (to paraphrase an old song)
The drug overdose, like many drug overdoses, is different from one individual to the next. This has been a key question in my mind the whole time. Yes, we know a fatal overdose of fentanyl can consist of as little as 3 ng/mL, and that Floyd had a reading of 11 ng/mL. But what is the window? What is the highest documented survivable level?? I’ve read, as much as 113 ng/mL but cannot verify that.
The venue not being changed is a travesty of justice, which is in keeping with the societal themes from Floyd’s death onward. It’s a lawful lynching we’re here for, folks.
“in our legal system the basic general premise is that we judge the act, not the character of the person” – Neo
But we’ve thrown that out in the last few years, haven’t we?
Seems to me I’ve seen several judicial decisions along those lines.
OrangeManBad is now a legal principle.
}}} but Floyd’s behavior a year earlier has no relevance to that.
I disagree in terms of it being an additional consideration as to why he was OD’ing, which is particularly relevant to how the situation came about.
If I’m doing 120mph down the street, it’s pretty relevant regardless of whether or not the person who hit me and killed me executed an illegal turn in front of me.
That person may have looked and behaved with normal expectations, and wound up very much a victim of my own illegal activity, which vastly contributed to what happened.
The idea that the context of a crime isn’t relevant to the crime is just a crock. ALL the context of a crime is relevant to the nature of the crime, not just the immediate components of it.
Not claiming that’s “The Law”. More observing how, in so many ways, “The Law” has stopped being interested in Justice and is more concerned with mindless procedure.
Chauvin had no reason to assume that the idiot had JUST taken an overdose minutes before he was trying to restrain him. That’s not a rational expectation for anyone, including a police officer, because… well, it’s just a fucking stupid thing to do.
}}} No matter what happens, Minneapolis is going to burn.
No, if they throw Chauvin to the wolves, it probably won’t burn. But it will be an absolute travesty of actual justice. And I, personally, object to allowing fear of the mob response to define jury outcomes.
Anything less than Chauvin’s exoneration is a de facto lynching.
Andrew McCarthy disgraced himself by indicating manslaughter is the appropriate verdict.
Reading OhBloodyHell’s comment above,
I’m reminded of something mothers say:
Don’t go to stupid places.
Don’t go at stupid times.
Don’t go with stupid people.
Don’t do stupid things.
“Andrew McCarthy disgraced himself” …. again, it’s SOP for him anymore.
OBloodyHell:
I don’t think you understand what I mean by “relevant.” I mean it in the legal sense. Of course it’s relevant in human terms or story terms. But not necessarily legally relevant, as I’ve already explained.
Our legal system traditionally has very good reason to not drag in extraneous facts and to limit judgment to the actual situation at hand.
This trial is looking like a disaster in the making. Demonstrators in the streets, potential jurors who saw the video and have made up their minds, along with those afraid to serve because of the mob. A judge that seems to lean in the prosecutor’s direction and a media that wants a scalp.
If ever there was a time for a leader to stand up, it’s now. The Mayor or the Governor should be making it clear that they will brook no violence and no threats against the judge, jurors, or Chauvin. And then back it up. I doubt we will see any such leadership. It will be a travesty, choreographed by the threat of mob violence. The promise of equal justice is now a cruel joke. Mob violence triumphs.
from the NLM:
Opiods can depress breathing depth and rate, blunt respiratory responsiveness to CO2 and hypoxia, increase upper airway resistance and reduce pulmonary compliance.
The proximate cause theory can be tried here:
1. If, but for Chauvin’s knee on Floyd’s neck for several minutes, the death would not have occurred.
2. Given Floyd’s physiologic condition, a knee on his neck for several minutes would predict his death.
I think the proximate cause algorithm fails with sentence #1.
“No, if they throw Chauvin to the wolves, it probably won’t burn.”
I disagree. A conviction will provide further confirmation, in their minds, that this is a racist city with racist police and deserves to be looted and burned.
I hope I’m wrong, but I think the city is going to burn no matter what the verdict.
No matter what happens, Minneapolis is going to burn.
I heard today that there was dissatisfaction with the racial and gender makeup of the jury and maybe that would be enough to trigger pyrotechnics that extend into downtown and the suburbs. I think the mob is just looking for an excuse.
“in our legal system the basic general premise is that we judge the act, not the character of the person” – Neo
What’s getting lost here is that this trial is about judging Derek Chauvin, not George Floyd.
“What’s getting lost here is that this trial is about judging Derek Chauvin, not George Floyd.” – Roy
Good point.
But, in cases like this, they become inextricably mixed, as in the popular-trial, as opposed to the court-trial, of Zimmerman vs Martin.