Written by Emanual Williams
During Tuesday’s proceedings in the Chauvin trial, Morries Hall, who was in the car with George Floyd moments before police arrived on the scene, filed a motion to quash (or void) a subpoena from the defense to make him take the witness stand. Hall’s attorney threatened to invoke his Fifth Amendment right against self-incrimination, saying that Hall’s alleged drug activity with George Floyd could leave him vulnerable to a third-degree murder charge in connection to the death of Mr. Floyd. His attorney stated that Mr. Hall could not be questioned without potentially incriminating himself. Judge Cahill ordered the defense to submit their questions for Hall in writing and has said he will decide on the issue following his review of this submission.
What does it mean for one of the key witnesses to invoke their Fifth Amendment right against self-incrimination? And how can he incriminate himself when Derek Chauvin is the one on trial?
The Fifth Amendment of the US Constitution guarantees that no person in a criminal case can be compelled to be a witness against themselves. A witness, like a defendant, may assert their Fifth Amendment right to prevent self-incrimination, which means that they may refuse to answer questions if they fear their testimony could implicate them in criminal activity. The criminal activity doesn’t need to pertain to the case at hand. Unlike criminal defendants, when a witness chooses to plead the Fifth, they are not able to avoid testifying altogether. Witnesses who are subpoenaed to testify must testify unless all of the questions are deemed to be self-incriminating. To be self-incriminating, a witness’s compelled answers must pose a substantial and real, and not merely a trifling or imaginary, hazard of criminal prosecution.
In this case, Hall’s connection with the drugs allegedly sold to Mr. Floyd and the discarding of an unknown object from Hall’s backpack could lead to him being charged with third-degree murder. Thus, he can refuse to answer any questions related to these topics by asserting his Fifth Amendment privilege. He could still, however, have to answer other questions about his observations and experiences on the day Mr. Floyd was killed. This is why Judge Cahill wants to review the defense’s proposed questions. If all or most of them would require Hall to incriminate himself, Judge Cahill may quash his subpoena and allow Hall not to testify. If any of the questions, however, would not elicit incriminating answers, Hall may still need to testify.
Sometimes when a witness has a Fifth Amendment privilege, the prosecutor will give them immunity from prosecution, which protects them from future charges based on the statements they make as a witness and allows them to safely testify. In this case, Hall has not been granted immunity, a point he and his attorney have raised as they seek to quash his subpoena to testify.
Whether Hall takes the witness stand or not could prove to be a big development in both the prosecution and defense’s trial plans. We can only wait to see if the written questions submitted by the defense will meet the standards of the Court.
by: Rashard Zanders
Will the video evidence be sufficient to win convictions against former Minneapolis police officer Derek Chauvin in the case of the State of MN vs Derek Chauvin for the death of George Floyd?
In the weeks leading up to the trial a noticeable tension has washed over the city of Minneapolis. Police Chief Arradondo and Mayor Jacob Frey have invited the ATF, FBI, MN state police and other agencies to patrol the city in general and the autonomous zone at 38th and Chicago Avenue on the south side where Chauvin knelt on George Floyd's neck for 8 minutes and 46 seconds in particular.
Confidence in the trial process took a serious hit during the jury selection process that many observers believe was racist (by disqualifying candidates of color whose lived experiences with police had been negative). Those exclusions have created a jury pool that could possibly acquit Derek Chauvin despite the viral video seen worldwide by millions of George Floyd's last moments.
According to the online dictionary merriam-webster.com, sophistry -- ‘subtly deceptive reasoning or argumentation’ -- has its roots in Greek philosophy, but it has long been roosted in the U.S. judicial system. Chauvin's defense is relying on a 'who're you going to believe, me or your lying eyes?' defense, coupled with the traditional racist tropes that underpin the American judicial system and dehumanize Black men ('George Floyd was a big Black guy!’) in the eyes of the court. The defense hopes to put the deceased Mr. Floyd on trial in the mind of at least one juror to try to achieve an acquittal based on 'reasonable doubt.'
Does the video provide enough evidence to convict Chauvin?
Here are two observations from attorneys from the Minneapolis-based Legal Rights Center, Josh Esmay, and Bridget Sabo respectively.
Esmay opined that ‘the state is going to rely very heavily on the video and that they likely feel that most of the key facts that the jury needs needs to convict are in the video; the duration of the use of force long after Floyd was unconscious, the position of Chauvin's body on Floyd's neck, Chauvin's demeanor, and the way he appears to cinch it down in response to bystander's pleas to let Floyd up because he couldn't breath. The state will also present medical evidence to establish that Chauvin's actions caused Floyd's death, but the video itself goes straight to the question of whether the force used by Chauvin was objectively reasonable, which will be a key issue.
'I expect that the defense is going to try and argue basically that the video doesn't show the whole picture. They will have police use of force experts that will probably testify that use of force was reasonable under the circumstances and consistent with their training, and they will argue that Floyd was intoxicated which muddies the cause of death – either negating Chauvin's actions as a cause entirely, or contributing enough to the cause of death that the jury can't find that element proven beyond a reasonable doubt.'
Sabo is a juvenile attorney and a restorative justice facilitator with the LRC. She agreed with Esmay's analysis and added 'it is my fervent hope that the video WILL be enough to convict Chauvin on all of the charges against him. The reality of our judicial system is that even when there is irrefutable proof of the commission of a crime, a defendant has a right to a trial.
'Often when there is evidence as clear as the video in this case, a defendant pleads guilty. Chauvin tried to do that, way back in June, when Freeman still had the case and Chauvin felt he would get some benefit from the plea. Luckily, in my opinion, that plea was pulled and Chauvin ended up not being able to take it.
'Chauvin could have straight pled to the charges against him (with no benefit from making a deal other than not putting the public through this trauma), but he hasn't. Since he didn't do that, here we are at a trial where, hopefully, it will be as obvious to the jury as it is to us just how guilty Chauvin is.'
Written by Mica Standing Soldier
During Monday’s opening statements in the murder trial of former MPD officer Derek Chauvin, the defense told the jury that George Floyd’s drug use was ultimately to blame for his death. “Put simply, Mr. Floyd could not breathe because he had ingested a lethal dose of fentanyl and, possibly, a speedball," said Defense attorney Eric Nelson.
According to the DEA’s website, “fentanyl is a synthetic opioid that is 80-100 times stronger than morphine.” One of the primary effects is respiratory depression. This effect is the Defense’s key component to their lethal dose argument, but it’s grossly misconstrued to the facts. The Defense’s proposition raised red flags for many health practitioners. Dr. Susan Hasti, a faculty physician at Hennepin County Medical Center, read Mr. Nelson’s troubling statement in the Star Tribune.
She explained that fentanyl depresses the part of the brain responsible for making a person breathe. Someone who takes a lethal dose of the opioid will become sleepy and lose the urge to bring more air back into their lungs. This is a vital distinction between losing the ability to breathe and losing the will to breathe.
The Defense claims Floyd lost his life because the fentanyl rendered him unable to breathe, but the video evidence proves otherwise. “In George Floyd’s case he was very much feeling the need to breathe. The drive to breathe was fully intact -- a person on an opioid doesn’t notice those things.” If George Floyd administered a lethal dose of fentanyl, he would not have struggled for his life as seen in the globally recognized video of his murder.
“Opioids depress the will to breathe, which is totally counter to what George Floyd was doing. Any doctor on the planet can give you that information.”
You can read Dr. Hasti’s full explanation here.
LRC staff include attorneys and advocates from a range of background and lived experiences.
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