The Derek Chauvin Trial — Day 14

Judge Peter Cahill on the bench during the trial of Derek Chauvin. (Credit Image: © Pool Video Via Court Tv via ZUMA Wire)

Editor’s Note: See our coverage of the first day of the trial here, the second day here, and the third day here, the fourth day here, the fifth day here, the sixth day here, the seventh day here, the eighth day here, the ninth day here, the tenth day here, the eleventh day here, the twelfth day here, and the thirteenth day here.

Court started without the jury present. Derek Chauvin told Judge Peter Cahill that after consulting with his lawyer, he decided to invoke his Fifth Amendment privilege and not testify. The judge read a statement for Mr. Chauvin about what he will say to the jury when he informs them of this decision, and Mr. Chauvin approved the statement:

Defendant’s right not to testify: The state must convince you by evidence beyond a reasonable doubt, that the defendant is guilty of the crime charged. The defendant has no obligation to prove innocence. The defendant has the right not to testify. This right is guaranteed by the federal and state constitutions. You should not draw any inference from the fact that the defendant had not testified in this case.

Prosecutor Jerry Blackwell told the judge that his team had “newly discovered evidence” about George Floyd’s blood gas levels and the state wanted to present a rebuttal to the carbon monoxide poisoning theory that was presented in court yesterday by the defense’s witness, Dr. David Fowler. Mr. Blackwell said the evidence was discovered last night by Dr. Andrew Baker, Hennepin County’s chief medical examiner, who conducted the autopsy on George Floyd. It had to do with the range of carboxyhemoglobin (carbon monoxide attached to a hemoglobin) in Floyd’s blood, a topic none of the prosecution’s expert witnesses had brought up.

No one requested carbon dioxide readings at the hospital on the day George Floyd died, because they did not think it was important. However, Dr. Baker told the prosecution that there was something in the computer records at the hospital that would show a test result that was now relevant. Mr. Chauvin’s lawyer, Eric Nelson, told the judge that he got this information at 7:53 a.m. and he could not reach his witness, Dr. Fowler, who was on a plane. Mr. Nelson said the state has had these blood samples all along, and it had plenty of time to present this information. He said it was “incredibly prejudicial” to present this information now.

Dr. Fowler had not testified that carbon monoxide poisoning was George Floyd’s primary cause of death, but he listed it as a contributing factor and said that the city should have tested Mr. Floyd’s carbon monoxide levels.

The judge was not happy. He said that if data on Floyd’s carboxyhemoglobin levels had been presented earlier, Dr. Fowler would not have testified as he did. The judge also criticized the hospital: “I’m not claiming any bad faith on the state’s part, but it seems odd that Hennepin County Medical Center, when they’re asked to turn over all their records, that they don’t include records that maybe are just buried a little deeper. Their response to the subpoena was probably insufficient . . .  in the event this happens again, they will supply all of the information they have.”

He concluded:

Dr. Tobin will not be allowed to testify as to those lab results. . . . If he even hints that there are test results that the jury has not heard about, it’s going to be a mistrial. Pure and simple. This late disclosure is not the way we should be operating here . . . .  Dr. Tobin may testify as to carbon monoxide, if he sticks to the environmental factors, and as a pulmonologist. Looking at the videos, for example, and seeing Mr. Floyd’s location and not knowing whether the vehicle is even on or not . . . .That is fine. But nothing about these lab test results that were just disclosed, eight a.m. this morning, after the defense expert is done.

After the break, the jury came in and Dr. Tobin was sworn in for a second time. Mr. Blackwell asked the doctor if he heard yesterday’s testimony, and the doctor said that he had. The jury was shown a slide from yesterday’s PowerPoint presentation by Dr. Fowler, and their attention was directed at the sentence, “In 7 minutes, Mr. Floyd’s Carboxyhemoglobin could have increased by 10-18%.” Mr. Blackwell asked the doctor if he agreed with the statement.

Dr. Tobin explained that carboxyhemoglobin is when carbon monoxide combines with hemoglobin in blood. “When the carbon monoxide binds to the hemoglobin, it displaces the oxygen off the hemoglobin. You need the oxygen on the hemoglobin.” He added that he did not believe Dr. Fowler’s statement had been reliable.  Mr. Blackwell asked him why, and Dr. Tobin said, “I base it on the arterial blood gas that was obtained when Mr. Floyd was in Hennepin County.”

There was an immediate objection and sidebar. This could have been enough for a mistrial. Dr. Tobin said exactly what the judge said he shouldn’t. But the judge did not declare a mistrial. Dr. Tobin told the jury that Floyd had a needle stuck in his wrist and blood gas was measured. This measurement included how much of Floyd’s hemoglobin was saturated with oxygen. Floyd’s hemoglobin was 98 percent oxygen-saturated, which means there could have only been 2 percent carboxyhemoglobin, which would be in the normal range.

Dr. Tobin was excused and both sides rested. The judge released the jurors for the weekend, reminding them to avoid all media. He told them closing arguments would be on Monday and that since they would be sequestered for deliberations they should pack suitcases. The judge said that they should plan for a long time, but hope for a short time. They could take one day to deliberate, or a week. He told them that they would have laptops in the deliberation room, so they could review any of the exhibits. Then Judge Cahill adjourned for a three-day weekend.

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