Judge in Chauvin case warns of mistrial over prosecution’s slightest ‘hint’ of ‘newly discovered’ lab evidence

The magistrate overseeing the trial of former Minneapolis police officer Derek Chauvin starkly warned prosecutors on Thursday that he would declare a mistrial if they tried to introduce “newly discovered evidence” in their closing arguments.

Judge Peter Cahill issued his warning after he rejected a request by prosecutors to enter new evidence in the murder trial of Chauvin, who stands accused of killing black suspect George Floyd in May 2020.

The information reportedly relates to carbon monoxide levels in Floyd’s blood during his arrest, The Hill reported. The judge said a mistrial would result if those results were brought up by a rebuttal witness in front of the jury.

In his ruling, Cahill said bringing up the information late would not be fair to the defense, adding that prosecutors previously had a chance to provide the data to the court since they were aware that the defense witness, Dr. David Fowler, Maryland’s former chief medical examiner, was going to mention carbon monoxide levels during his testimony. Allowing it now, Cahill reasoned, would prejudice the defense before jurors.


(Video: The Hill)

“It’s untimely to give the notice and it prejudiced the defense by the late disclosure, even if it’s not due to bad faith but the late disclosure has prejudiced the defense, it’s not going to be allowed,” Cahill told prosecutors.

Earlier, Cahill refused to grant the defense’s motion to acquit Chauvin after his lawyers argued that the prosecution had not proven their case.

One prosecutor, Jerry Blackwell, argued before the court that the state had only just received blood gas data from Andrew Baker, the Hennepin County medical examiner who did the autopsy on Floyd. The blood gas was drawn to determine carbon monoxide content in Floyd’s body on the day he was arrested.

Blackwell told the court the evidence had been discovered only after Fowler speculated during testimony that Floyd may have been exposed to dangerous levels of carbon monoxide as he was being pinned to the ground by Chauvin near a police vehicle.

Fowler testified that he did not know whether Floyd’s blood was even tested for carbon monoxide levels. But he noted that carbon monoxide poisoning could have been a contributing factor to Floyd’s death during his testimony earlier this week.

Blackwell questioned Fowler, who was the only defense witness to take the stand on Wednesday, over his statements during cross-examination.

“You agree as an expert witness that you shouldn’t jump to conclusions? That is, you should reach fair conclusions based upon a careful considered analysis?” Blackwell asked, to which Fowler agreed.

“Do you agree that you shouldn’t come at this in a way that’s biased? You agree with that, don’t you? You shouldn’t cherry-pick facts? You shouldn’t try to confuse the jury?” Blackwell continued.

In arguing to include the last-minute carbon monoxide measurement, Blackwell said that Baker had discovered the results after they were performed last year on Floyd. He also said that the state had subpoenaed all records from the autopsy, but had not gotten any information related to blood gases.

“Dr. Baker heard the testimony, had not himself ever requested this, nor had the ER physicians. They explained that when somebody is brought in, and blood gases are taken, there’s a panel of them that are taken, the ones that get generated and the records would be the ones that the ER physicians actually request,” Blackwell said. “Nobody requested carbon monoxide readings, because they didn’t see how that was relevant.”

Later, Cahill asked Blackwell, “Did Dr. Baker spontaneously call you to tell you that there might be something deep within the computer records that was not disclosed or did you seek him out?”

“We did not seek him out and ask anything. He had heard the testimony and thought that this record might exist because he was aware that there’s a panel of the tests that are run by the machine,” Blackwell replied.

After ruling against introducing the new evidence, Cahill warned of a mistrial if the information was mentioned if prosecutors’ rebuttal witness, Martin Tobin, mentioned the evidence when he was scheduled to take the stand later in the day.

“The defense gave notice that this was going to be an issue and specifically talked about testing the sample,” Cahill said.

“Even if it’s just because Dr. Baker called the state and said, ‘We, we can actually find this at 8 o’clock this morning, when the defense expert is done testifying, has left the state,” he added, referring to Fowler.

“If he even hints that there are test results 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,” Cahill added.

He did note, however, that the witness could reference the “environmental factors” as related to carbon monoxide.

“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, which the state brought out in cross-examination,” he said.

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Jon Dougherty

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