Derek Chauvin Murder Trial: Evidence Portion Now Complete — Defendant Invokes The Fifth; Judge Hints At Mistrial

By Maryam Henein

BREAKING: Derek Chauvin charged in the death of George Floyd, invokes the Fifth Amendment and will not testify at his murder trial.

Defendant Derek Chauvin said in court Thursday that he will not testify in his murder trial shortly before the defense and prosecution, stating they had each made their case, setting the stage for closing arguments and deliberations Monday.

“I will invoke my Fifth Amendment privilege,” he said via a cordless microphone, making his voice heard for the first time during the trial.

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Nelson told the court he has had many conversations about whether his client would testify, including as recently as Wednesday night. Chauvin said he understood that any decision to testify was his alone and neither the state nor the court can equate silence with guilt.

Nelson reminded Chauvin that “the state would have broad latitude” should it have had the opportunity to cross-examine him as a witness in his own defense.

Cahill then asked whether this was his decision, Chauvin said, “It is, your honor.”

Before concluding for the day, prosecutors called back Dr. Martin Tobin as a rebuttal witness to Wednesday’s defense testimony by Pathologist Dr. David Fowler, who said that carbon monoxide from a nearby police squad may have played a role in Floyd’s death.

Tobin said he disagreed with Fowler’s contention that Floyd’s blood could have contained anywhere from 10 to 18% of the poisonous gas.

During trial yesterday, it was determined that labs for carbon monoxide didn’t exist; however, because the autopsy results showed Floyd’s blood had an oxygen saturation level of 98%, “all there was for anything else was 2%.”

Tobin noted that humans normally have anywhere from 0 to 3% of carbon monoxide in their blood at any given moment.

Consider, however, if you’ve ever heard of anyone dying from hypoxia — as the prosecution claims — with a blood oxygen saturation of 98%?

Meanwhile, magically, the State, specifically Dr. Andrew Baker, found lab results that specifically measured the carbon monoxide in Floyd’s blood.

Nelson objected, saying the state knew months ago that Fowler would testify about carbon monoxide, and he called it “incredibly prejudicial to the defense” to present the test results after Fowler has already left the state.

Judge Cahill admonished the State’s late disclosure of lab results, stating that is “not how we should be operating.” All these reports were subpoenaed, so Judge Cahill said he was not sure how they were overlooked.

“It’s just serendipity that Dr. Baker calls the state and says, ‘Oh by the way, it does exist,'” Cahill said.

“It seems odd the county medical center, when asked to turn over all their records failed to include those lab reports that are just buried a little deeper.”

Cahill ruled that Tobin could testify about how carbon monoxide could have affected Floyd, but not mention the test results.

“If he even hints at test results the jury has not heard about, it’s gonna be a mistrial, pure and simple,” the judge said.

On Wednesday, Fowler, a retired forensic pathologist, testified that the 46-year-old Floyd died of cardiac arrest combined with drug use, and not a lack of oxygen as several prosecution witnesses contended in their testimony.

He also testified that the manner of death was “undetermined” due to a combination of factors — including police restraint and carbon monoxide poisoning from a nearby squad car — that could point in multiple directions. The Hennepin County Medical Examiner’s Office ruled last year that the manner of death was a homicide, an act caused by another person.

“Any of the sounds Mr. Floyd is making requires you to take air in … and out … ,” Fowler said of bystander and police body camera videos showing Floyd pleading to breathe as three officers restrained him for what turned out to be more than 9 minutes. “You cannot make a sound unless you’re … moving air and your mouth is open.”

Nelson has argued that Floyd likely died on May 25 of a drug overdose, including fentanyl that depresses the respiratory system, and pre-existing health problems, including heart disease and arteries that were clogged 75% and 90% in places.

Prosecutors have argued that Chauvin drained Floyd of oxygen when he knelt on his neck for more than nine minutes as Floyd lay handcuffed in a prone position.

Fowler countered the State by saying that if a lack of oxygen was the culprit in his death, it would have impacted the brain first, causing someone to become disoriented and speak incoherently, Fowler said.

“Mr. Floyd goes from making clear statements … and then there’s a period of about 45 seconds of silence but he’s still moving … and there’s a sudden relaxation” more consistent with cardiac arrest, he testified.

After talking over points with opposing lawyers, Cahill stated, “The evidence is now complete for this case.”

Addressing jurors’ anticipatory question on how long sequestered deliberations will last, he said, “If I were you, I would plan for long and hope for short. … Whether it’s an hour or a week, it’s entirely in your province.”

Jurors will have a computer and a monitor so they can go over audio and video evidence as they wish while in the deliberation room and not be required to return to the courtroom.

Chauvin is charged with second-degree unintentional murder, third-degree murder and second-degree manslaughter in the killing of Floyd last spring. Three other fired officers who assisted in Floyd’s arrest — J. Alexander Kueng, Thomas Lane and Tou Thao — are scheduled to be tried in August on charges of aiding and abetting murder and manslaughter.

You can read reports from past trial days at Maryam Henein’s article archive HERE.

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