Floyd’s cause of death as a legal matter
In all trials but especially in an emotionally-charged trial such as that of Derek Chauvin, it’s hard to say how a jury will think and what it will decide. That’s true even if you’re aware of the law and the evidence, because although juries are told to consider both instead of going with emotion, the reality is that it takes a rare person to do that.
In order for the Chauvin jury to acquit on all counts, it would take twelve people putting aside their preconceptions and purposely-stirred-up emotions. Although that’s theoretically possible, it seems it’s highly unlikely. A hung jury – a split decision – is, however, a distinct possibility. In that event, Chauvin can be tried again, and I think the need to convict him for political reasons is so great that a retrial would indeed occur.
Yesterday “shipwreckedcrew” at RedState, a lawyer whose opinions have seemed mostly well-grounded to me in the past, explains some legal issues in Chauvin’s trial that I think are often neglected or misunderstood. In the following excerpt, shipwreckedcrew is discussing the testimony of Dr. Tobin, a medical expert who advanced a theory of Floyd’s death that doesn’t include the “knee on neck” but does include the actions of the police:
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…
This was the testimony that I believe caused Andrew C. McCarthy to write this yesterday [original emphasis]:
In the criminal law, a defendant is deemed to have caused a person’s death if his actions were a substantial factor in bringing it about. For a jury to convict, there is no requirement that it find the defendant’s actions were the exclusive cause of death….
Whether Derek Chauvin had the intent to apply excessive force on George Floyd, to the point of criminal assault, remains a very live disputed issue. It is no longer plausible, however, to claim that police restraint did not cause Floyd’s death. In the legal sense of causation, it surely did.
Intent is required in Chauvin’s case for a conviction on the two murder charges, but not for the manslaughter charge.
I read McCarthy’s piece several times to see if I was missing something, because whether or not I’ve agreed with McCarthy in the past (often yes, sometimes no), he has usually seemed to me to be writing with great clarity. Here, I don’t see that same degree of clarity, and one of the things I perceive him as neglecting is the concept of reasonable doubt. From what I’ve read elsewhere, Dr. Tobin’s testimony was based on a theory that could be challenged in a lot of ways, and I certainly have reasonable doubt that he’s correct about whether the police’s actions had a substantial contribution to Floyd’s death. We’ll see whether the defense brings in witnesses to contradict Tobin, but at this point the question is certainly not in the nature of you might call “settled beyond a reasonable doubt.” Am I missing something?
And then there’s also the following addition from “shipwreckedcrew” yesterday:
While the media has legal commentators have focused on Dr. Tobin’s testimony and how it points the finger of blame at Chauvin — and the other three officers as well — one aspect of this issue…has received little if any attention. 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”. In other words, shooting and killing a suspect is not “wrongful” when the suspect poses a threat of great bodily injury to the officer. 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.
That seems highly relevant to me.
There’s also another issue I want to highlight here, which is standards for police behavior, as expressed by a prosecution expert witness yesterday:
Interestingly, Stoughton [the prosecution witness] 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.
That seems inherently wrong. A police officer is not omniscient nor can he or she be expected to be. The officer is trained in the tactics of the local police department.
More:
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.
This is absurd on its face. Even I know that handcuffed people can do a lot of damage. I guess you can find an expert who will say anything, literally anything.
And what’s more:
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.
The prosecution is apparently going to rest its case today. The judge has indicated – to my surprise and to the surprise of many people – that the defense will be presenting its case for about three days. That seems very short to me. I have no idea what that signifies, but it should be interesting.
I have zero interest in the proceedings of this trial. The conclusion is foregone, much like the OJ trial. Either way, as you said, Minneapolis and other cities will burn; the D’s will encourage such “peaceful protests” in the hope of adding more chaos to the system. The summer of 2020 v2.0. Their strategy of fomenting racial war is so obvious. And to think how the races were a mere 15 years ago until Obummer came on the scene.
I don’t know if it’s a foregone conclusion. Barnes of Frei and Barnes is of the view that the prosecution has presented the sort of case that works with juries even though it’s invalid and deceitful, because they provide first emotion and then appeals to authority. The authority gives the jury the license to do what it wants emotionally. Barnes indicates that in his experience, about 15% of juries empaneled are not manipulable in this way. He didn’t offer (unless I missed it) a view on what % of jurors are manipulable. Preventing a grave injustice requires two people on that jury who are capable of inductive reasoning (and of spotting a fraud) to stand their ground.
IMHO the jurors have got to know that any one of them who votes to acquit will be doxxed and literally have the baying mob at their door with fire brands. Chauvin is toast and so are his colleagues. Also we now have another lamb to be sacrificed on the alter of BLM – the female officer in Brooklyn Park who accidentally shot and killed Daunte Wright. Oh, and also more settlement money for attorney Crump.
Justice for Ashli Babbitt!
Yes, this is all just going through the motions. If he were found not guilty of all charges that would be one of the most shocking verdicts in US history not because of any legal reasons but because of the larger societal pressures on the jury. I suppose I could see them only convicting him of the manslaughter charge but even that seems unlikely.
Why anybody in their right mind would want to be a cop right now amazes me.
There seems little chance even of a hung jury, and it is likely that looting and rioting will be widespread no matter the verdict. Among the most distressing aspects of this “show trial” (hardly more admirable than the Soviet variety) are the fear of the jurors over their possible “doxxing” should they vote “incorrectly” and the unwillingness of some conservative legal minds (such as Andrew McCarthy and Gregg Jarrett of Fox, both highly intelligent) to understand the weakness of the prosecution’s case. It appears as though the courage necessary to take a public and unpopular stand on this case, from a rational assessment of the evidence, is in very short supply.
Expert witness: “They should have let the unruly perp resisting arrest ride in the front seat of the police car.”
You’d have to be a true blue progressive not to roll your eyes at this bit of testimony.
My perception of the American legal system, and the Law Enforcement personnel who support it, is (admittedly) mostly formed by TV programs. I have learned a lot by reading this blog and Legal Insurrection.
All that said, I don’t have a good feeling that this trial will reach a conclusion that is not strongly influenced by biased media supporting a cancel culture that I barely recognize as my own country any longer.
Trying to be unbiased, it seems to me Chauvin should be acquitted. The very high possibility that the city will burn and the holdout juror(s) will be doxxed probably mean this won’t happen, although I have no reason to believe the city will NOT burn no matter what outcome is reached. Or that a few jurors will not be doxxed.
Was our system always like this and I just didn’t know it? Or is this a recent development. If both Neo and Legal Insurrection can conclude that the prosecution did not make its case but Chauvin will likely not be acquitted, I am deeply troubled. Is this really who we are as a nation?
‘ride in the front seat of the police car’
Why not let him drive the police car?
If you read the recap, the “expert witness” also had this gem:
“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.”
Even the most woke TV crime drama wouldn’t show the cops letting perps who at first violently resisted arrest ride in the front seat or take them at their word that they wouldn’t get violent again.
Now you know why lawyers refer to paid witmesses as whores.
Andy McCarthy is totally off-base. The defense will certainly present an expert who will have the opposite opinion. The jury decides which expert is most credible.
Last Friday the NE Supreme Court affirmed the largest judgment in the state of Nebraska. The trial judge – acting like a jury and as the finder of fact – found one expert more credible than the other. And he had very good reasons for doing so. End of story. End of case. Affirmed.
shipwreckedcrew makes an excellent point.
I also note the the Brooklyn Center cops didn’t put Mr. Wright on the ground. He then escaped their grasp and got back into his car where he was shot.
I’d bet that the cops aren’t putting people on the ground because of this floyd case.
Ray:
In this case, pro bono whores.
Most of the prosecution’s witnesses so far were actually offering their services for free (although I don’t think Tobin was one of these). Whores, but unpaid ones who were only paid for their time in court (and not a whole lot) rather than the usual hefty fee for all their preparation.
neo,
Yes, Barnes mentioned that and that was actually a bad thing because these ‘experts’ are so zealous they will do it for free.
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.
Police: Texas deputy shot by handcuffed suspectOne deputy was hit in the forearm while another narrowly escaped injury when the bullet grazed his pant leg
McCarthy does seem like he’s jumping the gun in order to say something quotable.
Wouldn’t be the first time.
Art Deco:
Why two people? Why not one?
I realize that withstanding the psychological pressure to conform with the majority is harder when alone, but it is still possible although much less likely.
Artfldgr:
Indeed. That sort of scenario has occurred quite a few times with handcuffed people.
I’m going to assume that Chauvin’s defense will be presenting some expert witnesses who mention something like that.
A few factors that motivate relative brevity of the defense presentation that started today of which I could conceive are, first, the fact that Nelson working the testimony by himself means he doesn’t have the luxury of standing at that podium all day every day for another week-and-a-half like the state does; second, that Nelson probably figures he doesn’t need to take so much time to poke the necessary holes in the prosecution’s arguments – just make the reasonable-doubt case, but make it firmly, in a sense bringing together many of the threads that he was able to throw into the mix during his various cross-examinations and adding just enough to make them into a solid piece of yarn (besides, if he were to carry on for as long as the state has done, the jurors’ eyes would just glaze over and that would not serve his client’s cause); and third, thinking back to how many of the state’s witnesses were redundant, so many of them making essentially the same points over and over – the various bystanders with their various videos, these curious “experts” with their cookie-cutter statements which so many of them were so eager to provide free of charge! – Nelson just needs one of each category, in principle, not four or five as the state seemed to require in its zeal to make the rubble bounce.
And on top of all of this is the simple fact that Nelson must be fairly gassed by now. He’ll probably be running on fumes by the end of the week.
All of the foregoing assumes that Nelson’s timeframe hasn’t simply been dictated to him by the judge or some other functionary, which is also possible.
I think an acquittal is unlikely although the evidence would support that verdict. A hung jury is a possibility but Chauvin’s only chance of justice would be an appeals reversal. Even then the Jobama DOJ would do a Clinton and bring double jeopardy as was done with the Rodney King cops.
Mark Geragos has a podcast with Adam Carolla and he makes good points from the perspective of someone who would usually be representing someone against the police. He is also representing the restaurant ‘Tinhorn Flats’ against the insane totalitarian city of Burbank.
Podcast is called ‘Reasonable Doubt’ and it’s pretty good.
Griffin:
Do you have a link?
yes, this is from a couple days ago but their last several podcasts have been about this and Tinhorn Flats mostly.
https://www.youtube.com/watch?v=3nW0XuaTgk4
Ray:
In this case, pro bono whores.
Don’t forget the after-the-verdict book deals and moneys wrung out of media companies.
I rarely agree with McCarthy. He tends to find ways to side with the prosecution and/or the left’s street mob too much for me to trust his objectivity and honesty, IMHO.
It will Always be the fault of “The Man”. If the Po-Po weren’t enforcing the law about poor Gerorgie passing “funny money”, then Saint Floyd would not have been “forced” to hide the drug evidence by swallowing it. See?! If “The Man” would just allow the “folks” to rob, steal, and get high, then there would not have been this problem. It takes intelligence to respond to a “situation” and, obviously, dey ain’t got nun. It is all very clear.
I am still going with the arresting officers keeping Saint Floyd on his side to prevent aspiration of vomit which was likely to result from whatever substance(s) the suspect took, inspite of Floyd’s denials. Respiratory distress is usually survivable. Aspiration pneumonia is often fatal.
“If “The Man” would just allow the “folks” to rob, steal, and get high, then there would not have been this problem.” Mike-SMO
That’s exactly what has started to happen. Cops are not going to arrest [black] people when the risk of imprisonment is so high. Criminals will react accordingly.
For a look into what will be the new ‘norm’ see: “The Enduring Terror of Violent Crime Victimhood”
https://greenwald.substack.com/p/the-enduring-terror-of-violent-crime
National Use-of-Force Expert Testifies Officer Chauvin DID NOT Use Deadly Force on George Floyd
https://www.thegatewaypundit.com/2021/04/oh-boy-chauvin-trial-update-national-use-force-expert-testifies-officer-chauvin-not-use-deadly-force-george-floyd/
Pesky details.
” the defense will be presenting its case for about three days. That seems very short to me. I have no idea what that signifies, but it should be interesting.” – Neo
He plans to take that long?
I would expect him to make this statement at the beginning of his time, and sit down.
Mr. Nelson: “Your Honor, I have subpoenaed 60 people and all have indicated they will plead the 5th to every question out of fear for their lives and the safety of their families. The defense moves for a judgement of mistrial.”
McCarthy displays certitude because he’s clinging to his initial conclusions which, like most of the rest of the planet’s, were drawn on incomplete evidence. He, like so many even on the Right, was eager to display his virtue, rather than the circumspection expected of a lawyer and rational person. And now he might be realizing his error, hoping for a jury to save his ass.
His piss poor takes seem to be increasing in frequency.
This lawyer is dismissing perfectly reasonable alternative explanations without having heard the defense make its case. After the last few years, I think I can safely relegate McCarthy to the bloated ranks of the unserious.
gmmay70:
I think McCarthy came to support Trump only slowly and reluctantly, and was never comfortable with it. Later, he was thrown by January 6th, and reacted by thinking Trump should be impeached (see this). But before that, on May 30, 2020, not long after Floyd’s death, McCarthy wrote:
I remember reading that at the time and being shocked that McCarthy, who surely knows the law, would use the word “murder” at that point in that way, as though it was a fact that Floyd’s death was a murder (and not just that Chauvin had been charged with murder). He should have known better, but I think he was reacting emotionally with horror. I thought it very uncharacteristic of McCarthy, and it was a sign that something was going on with him.
I was very surprised by a number of people in my life immediately using the word murder IRT the Floyd case, including conservative LEOs. All saw the video. I intentionally have never viewed it, and am not surprised to learn that the body cam view refutes the “knee on his neck” narrative.
Interesting that McCarthy was also played by the Jan 6th narrative. Even more interesting to me is that in light of the bad judgement he repeatedly shows, people bother to read him.
In my line of work, it has taken four adults to keep a determined 70 pound ten year old from bolting off a stretcher, which may be why it does not distress me to learn Floyd was kept prone while cuffed. A fellow his size, high on drugs, could cause great physical harm to himself and others.
Re- “free” testimony of Dr Tobin.
The good doctor has a thriving and lucrative practice testifying in medical malpractice cases. His “free” testimony here will greatly enhance his brand, allowing him to increase his hourly rate (and will also get him invited to the right dinner parties).
}}}}} 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.
}}} That seems inherently wrong. A police officer is not omniscient nor can he or she be expected to be. The officer is trained in the tactics of the local police department.
This might seem unfair, yes, but it likely has three factors in play:
1 — It actually IS the job of the police department to meet minimum training standards. The only question here is, “shouldn’t the trainers also be culpably responsible, if their standards were insufficient?”
2 — The “Mai Lai” notion. As an officer, whatever you are trained, you are expected to be able to make important rational decisions about your conduct. If Chauvin violated this in any way, it was because he failed to realize the guy wasn’t breathing… granted, the crowd was probably a major factor in distracting him from realizing this, but it is the BEST complaint about his behavior that day, and THE most effective place one might put blame on him.
3 — Consider back to the days of Jim Crow. If your training said to beat the f*** out of any black prisoner, would that be “ok”? Would there be any question you SHOULD realize this is wrong? Right. This is an offshoot of “2”, but, you are being given a tremendous power over other people — regardless of training, you should see if that training is insufficient, and seek to gain additional training. TBH, I think the requirements for shooting, and for shoot/don’t shoot decision making are woefully inadequate, esp. given the ease of doing so with modern tech — cops can and should be far more able to handle both distractions and other issues with a cold calculation that anyone in the (para) military should have.
While I have no doubt lots of cops play immersive games like GTA and Call of Duty, there is no reason not to have entire DEPARTMENTS of the police required to “play” various carefully designed games to help fine-tune their “use of force” mental preparation. There should be take-and-pass VR tests that are absolutely required in order to carry a gun on the streets under most circumstances.
We know this is possible and practical. Yet it is rarely the case. I gather some PDs only require an officer to shoot 500 rounds in practice in a year. They should be shooting that many shots on their yearly ACCURACY tests (yes: Cops should be in the to 5%ile for shooting accuracy among shooters). And most PDs probably don’t yet require them to pass VR “use of force” decision making tests… Instead, they’re spending money buying SWAT weapons and training… :-/
https://www.marketplace.org/2020/06/12/police-departments-1033-military-equipment-weapons/
Don’t get me wrong, I think, Chauvin should never have been brought to trial on anything more severe than a possible manslaughter grade of charge, and the officer’s choice on the other case was insanely bad “luck” — she fucked up, bad, and almost certainly should be treated much as any other person making that bad a choice involving negligent homicide, but it wasn’t “murder” by any means in either case.
Being a cop is a tough job, but many DEPARTMENTS should probably examine their financial priorities when it comes to: “Engagement Training or SWAT stuff… hhmmm… Hmmmm….” to make that job easier and to discourage fuckups.
Part of engagement training should include, for example, swapping an officer’s equipment around without them realizing, so they know the gun vs. taser by feel (and yeah, perhaps the two should feel SO different that it’s nearly impossible to mistake).. hell, they should probably be able to tell what equipment they have in their hands in the dark — in an emergency grab scenario.
OBloodyHell:
I don’t think the national standards Stoughton was talking about were some generally accepted minimal standards. I haven’t heard that anyone has said that Minneapolis police force training doesn’t meet minimal standards. Stoughton was applying some national “standards as defined by Stoughton.”
West Texas Intermediate Crude:
As I already wrote here, Tobin doesn’t seem to have been one of the experts volunteering his services for free.
I think he is probably correct, and I think the distinction you make, Art Deco, is the right one. There is probably always at least 1 one juror who isn’t manipulable in this manner, but then that juror has also to be immune to the “going along with the crowd” pressure of the other 11 jurors. This is helped by having at least one other juror in the same camp.