I’m no trial law expert, but it seems to me that certain proceedings in the Chauvin trial have been highly unusual. They would be strong grounds for appeal – in a sane world, that is. I don’t think that’s the world America is living in right now.

For details on the issue of late-in-the-game evidence-dumping, here’s Andrew Branca yesterday:

Ideally, by the time a trial actually starts both sides will have long since received the other’s disclosure items, early enough to have time to consider and research them before the trial begins.

That has not been the process in this trial, particularly with respect of state disclosures to the defense.

When this trial began, the state had already delivered to the defense 41 disclosures consisting of 45,118 Bates stamped items.

If that sound like a lot, that’s because it is.

But the disclosures of the state did not stop there, as one would normally expect. Indeed, not even close.

Since the start of the trial—in other words, while the sole defense attorney Nelson has been occupied the entirety of every day in trial on this case—the state has continued to deliver disclosures to the defense, each containing a great many Bates stamped items.

Indeed, since the start of the trial the state has made 12 additional disclosures to the defense, consisting of 5,154 additional Bates stamped items.

Yes, that’s 5,154.

Yesterday was the 12th day of this trial. That works out to the defense having to review newly delivered Bates stamped items at an average of 430 per day.

That’s 430 newly delivered Bates items per day.

That, folks, is not normal.

The defense raised this issue yesterday afternoon in the context of anticipated cross-examination of defense experts by the state today.

Much of the most recently delivered discovery consists of materials that could be, certainly will be, used in an attempt to impeach those defense experts.

Given the delivery of this discovery so late in the course of the trial, and the volume of the material, the defense is asking the court to order the prosecution to disclose in some detail exactly which of those newly disclosed exhibits it actually intends to use to impeach.

The judge asked the prosecution to do so, to the extent they reasonably could, which strikes me as completely ineffectual solution to this real problem for the defense.

I expect the real reason the defense raised this issue on the record was, well, to establish it as an issue on the record for purposes of appeal.

Some people have theorized that the judge wants a conviction in order to prevent or at least minimize rioting, and then wants a reversal ruling later on appeal. I don’t think so. First of all, most judges don’t want to make errors of that magnitude, if only for the sake of their own egos. Secondly, I would think that, if a reversible error were to be declared for Chauvin after a conviction, there certainly would be riots anyway. Actually, I think there will be riots whatever happens, short of a murder conviction, and perhaps even then.

Then today the judge allowed another highly unusual move. Branca hasn’t written his wrap-up, in which he almost certainly will analyze it. But we have “shipwreckedcrew” at RedState, whose post today is entitled, “BREAKING: Prosecutorial Error With State’s Last Witness Creates Grounds for Possible Mistrial in Chauvin Trial.” Here’s an excerpt [my emphasis]:

[After the defense rested its case] The prosecution advised the Court that it would have one rebuttal witness. A rebuttal witness can be called to present testimony in response to evidence heard for the first time during the defense case. As is very common, the rebuttal testimony would come from one expert witness who previously testified, Dr. Martin Tobin, and the testimony would be in response to testimony given by a defense expert.

But the surprising part of the prosecution’s announcement was that it intended to have Dr. Tobin testify about newly discovered evidence — a Hennepin County Medical Examiner report on the level of carbon monoxide (CO) in the blood gas testing of arterial blood drawn from Floyd at the hospital.

The standard panel of blood gas readings sent at the request of the ER physicians would not normally have included this test result. The machine that tests the blood does measure the CO content, and it is reflected in the master report that is produced by the machine, but that reading is not normally sent to the ER where the patient is being treated. The Medical Examiner didn’t ask for that particular test reading because he didn’t deem it relevant upon examination. So the test reading was reflected in the hospital records all along, but it had never been noted by anyone until the Medical Examiner, Dr. Baker, went back to the records after hearing some of the earlier expert testimony in the case.

Even though the report has been in existence since the night of Floyd’s death, the prosecution claimed it first received it yesterday by Dr. Baker. The report’s findings would have supported earlier testimony by Dr. Tobin and undermined the testimony of the defense expert, Dr. Fowler.

The bigger problem for the defense what that Dr. Fowler has already left Minneapolis and was on a plane returning to his home — meaning the defense would be unable to call Dr. Fowler back to the witness stand after Dr. Tobin in order to have Dr. Fowler review the same testing reports and incorporate them into this previously testified opinion…

…Had the reports been timely produced to the defense as required, Dr. Fowler would have had the test reports to review at the time he formed his opinions and prepared his testimony.

The judge ruled that Tobin could not “testify about the CO test results, or…criticize Dr. Fowler’s testimony based on information in those reports.” But the judge allowed the prosecution to question Dr. Tobin “in response to other topics addressed by Dr. Fowler in his testimony on behalf of Chauvin.”

This is what the prosecution had in mind, had the judge allowed them to question Tobin they way they wanted to:

Dr. Fowler’s report back in February noted a lack of testing on the part of the hospital regarding blood CO, giving the prosecution at least 60 days notice that he would testify on that issue. Had the test results been provided prior to the trial, Dr. Fowler’s testimony would have been different. Dr. Tobin’s intended testimony was that such testing had been done, and CO was ruled out as a contributing cause by the blood gas results — undermining Dr. Fowler in an unfair and prejudicial manner since the prosecution had the evidence all along but did not provide it.

Here’s the most important part – not that the rest wasn’t important:

Judge Cahill warned the prosecution that even if Dr. Tobin’s testimony “hints at” the existence of the testing results the prosecution would be at serious risk of having a mistrial declared.

And then, just as you might imagine, the prosecution asked Tobin questions that meant that in his answer he discussed details of the testing results, in order to discredit the defense witness’s testimony. This resulted in a defense objection, various sidebar conferences with the judge, and the judge allowing the testimony – testimony which seems to be unequivocally in violation of his own warning about a mistrial.

And then the court adjourned for the day. The judge did not declare a mistrial.

I have to say that assumptions I might have made a few years ago about how this might go are not the assumptions I make now. Just to take one example, recall Judge Sullivan in the Flynn trial. For most readers of this blog, or others who followed that trial elsewhere, I don’t have to explain what a travesty that was, and how it violated previous legal standards in terms of the judge’s rulings that were prejudicial to the defendant. In the end, it was only a presidential pardon that helped Flynn, not the legal system that had failed him.

Chauvin has been demonized even more than Flynn, and I doubt the legal system in Minnesota will be eager to declare the need for a new trial if he is convicted. As for SCOTUS – well, SCOTUS will either have been packed with liberals by that time, or perhaps will have been sufficiently intimidated by threats of packing, to have become basically worthless.

ADDENDUM:

I see that Andrew Branca has now weighed in at Legal Insurrection. Here are some of the details, which deals further with the question of whether the evidence about blood levels was actually “new”:

Normally, of course, the state would have been expected to make such arguments in Dr. Tobin’s original testimony, and their failure to do so would not be a good reason to suddenly allow Tobin to re-testify now.

An exception to that normal prohibition on re-testimony, however, can be made if the defense itself had “ambushed” the prosecution with scientific arguments for which they had not provided the state with notice.

Prosecutor Blackwell argued that Fowler’s reference to CO concentrations as high as 18% had never previously been disclosed to the state, and so qualified as just such an “ambush” that justified Tobin’s re-call to the witness stand.

The defense countered that Fowler had explicitly referenced CO as a possible contributor to Floyd’s death in his expert report shared with the state weeks before trial began and had even recommend that the state test the blood for CO concentration.

It was only the state, not the defense, that had possession of the blood. As a result, the state was on notice with respect to the CO issue, and if they failed to address that issue in a timely manner, that was on them.

Judge Cahill agreed with the defense with respect to this “newly discovered” blood gas level data, and informed the state that if Tobin so much as hinted at this new data, the Judge would order a mistrial had occurred.

That said, Cahill said he would allow Tobin to speak to the CO concentration issue if he only referenced data that had long been available to both parties. That opened the door to the prosecution having Tobin reference Floyd’s oxygen (rather than carbon monoxide) levels, and use the O level to infer possible CO level.

This is possible because O and CO both compete for the same binding location on hemoglobin, and only one of them can bind any particular hemoglobin protein. So, a protein bound by O cannot also be available to be bound by CO, and the reverse.

Because the parties were aware that blood gas measurements had indicated that Floyd’s blood had O levels of 98%, it could be inferred that his CO levels could be no greater than the remaining 2%, which was well within normal.

There’s quite a bit more at the link, and it’s rather complicated and hard to summarize, so I suggest you go there.

But here’s Branca’s conclusion:

Frankly, in my professional opinion, a mistrial in this case would be entirely warranted, if not from this particular incident in isolation, then from the accumulated harms done to the defense by the state’s untimely dropping of thousands of exhibits on the defense even as the trial proper was taking place, averaging nearly 500 new exhibits each day of the trial.

Indeed. However, to declare a mistrial for that, it seems to me that the judge would have to criticize himself, because he was the one who had allowed it to happen in the first place.