Chauvin's decision to invoke his Fifth Amendment right against self-incrimination seemed to be the subject of debate between him and his attorney, Eric Nelson of Halberg Criminal Defense. During a colloquy on the subject, Nelson said they'd had "several discussions" about the benefits of testifying versus remaining silent.
"During the course of my representation of you, it's fair to say we've had this conversation many times, correct?" Nelson asked Chauvin, who sat beside him at the defendant's table, holding a wireless microphone and agreeing with all the questions his lawyer asked. "[To say] we've gone back and forth on the matter would be an understatement, right?"
"Yes, it is," Chauvin said, smiling.
Nelson noted that the judge and jury could not make an inference of guilt if Chauvin didn't testify, and that if he did, he would open himself up to cross-examination by prosecutors, who would have "broad latitude to ask questions." He said that ultimately, the choice was up to Chauvin whether or not to take the stand.
And Chauvin had decided: "I will invoke my Fifth Amendment privilege today," he said.
Chauvin's decision to remain silent marked the end of his defense in a case that has made international news since last spring, when millions of people viewed a bystander's video of Floyd's arrest.
That footage showed Chauvin pinning down Floyd's neck for about nine minutes, as Floyd — who was suspected of using a counterfeit $20 bill — begged him to stop, said he couldn't breathe and eventually lost consciousness. The video of a Black man gasping for breath under the knee of a white police officer was viewed by millions and rekindled nationwide racial justice protests last summer.
Prosecutors allege that Chauvin used an unreasonable amount of force for too long and should have known he was killing Floyd.
The defense argued that Chauvin used a reasonable amount of force because Floyd was resisting arrest, claiming that Floyd didn't die because of Chauvin's actions but because of a host of other reasons, including chronic heart disease, drug addiction, a rare tumor that may have secreted adrenaline and carbon monoxide poisoning from the tailpipe of the police cruiser that was next to Floyd as he lay pinned to the street.
That last factor became a controversial topic on Thursday morning, thanks to last-minute evidence that the prosecution disclosed hours before the trial was set to resume.
On Wednesday, a defense medical expert, former Maryland medical examiner Dr. David Fowler, testified that in seven minutes, carbon monoxide poisoning from the squad car's tailpipe may have increased the level of carboxyhemoglobin in Floyd by 10-18%, contributing to his oxygen deprivation. But Fowler said he couldn't know for sure because Floyd's blood had never been tested for that particular compound.
Hennepin County Medical Examiner Andrew Baker, who performed Floyd's autopsy, was watching that testimony on Wednesday and called prosecutors that afternoon to tell them that such tests were run by emergency room doctors who tried to revive Floyd, according to Jerry Blackwell, founding partner of the Minneapolis law firm Blackwell Burke who is working pro bono for the prosecution. Those tests, which indicated a normal level of carboxyhemoglobin in Floyd's blood, were not previously disclosed, in spite of a subpoena for all of the Hennepin County Medical Center's records, Blackwell said.
Nelson noted that the defense had only learned of these test results on Thursday morning. At that point, Fowler had concluded his testimony and was on an airplane home.
"This is information that's been within the state's control. The state has had ample notice this is information that could have been part of Dr. Fowler's testimony. It is incredibly prejudicial to the defense at this point, now that Dr. Fowler has testified and left the state, to bring forth evidence," he said. "These new test results should not go in front of the jury. If they were to, I would be holding for a mistrial."
Judge Cahill sided with Nelson. He found no bad faith by prosecutors, but he nonetheless criticized the Hennepin County Medical Center for not responding appropriately to the subpoena. He added that he would have had no problem showing jurors the tests had they been disclosed earlier — though he noted that if they had, Fowler would have probably altered his testimony.
But he said the late disclosure prejudiced the defense, and prosecutors should have dug deeper sooner because they were given "sufficient notice" of Fowler's carbon monoxide testimony from the contents of his expert report.
Judge Cahill did allow prosecutors to call back as a rebuttal witness Dr. Martin Tobin, a pulmonologist and intensive care doctor who has studied the physiology of breathing for 46 years and testified for the prosecution earlier in the trial.
His testimony was mainly limited to explaining how he knew that the hypopharynx — a small airway in the throat — would have narrowed because of the way the officers had restrained Floyd. Fowler had testified the day before that he'd found no medical literature to support that assertion.
Tobin was also allowed to speak about carbon monoxide poisoning generally and speculate about Floyd's blood oxygen levels, which had previously been introduced at trial. But Judge Cahill warned that if the doctor "even hints there are test results the jury has not heard about, there is going to be a mistrial, plain and simple."
Tobin's limited testimony only lasted a few minutes. The new evidence of carboxyhemoglobin levels wasn't raised, though Tobin did use Floyd's blood oxygen level, which was recorded at 98%, to extrapolate that "the maximum amount of carbon monoxide would be 2%."
Closing arguments in the case are scheduled for Monday. The jury will then be sequestered for deliberations.
Minnesota is represented by Keith Ellison, Matthew Frank and Erin Eldridge of the Minnesota Attorney General's Office, Jerry Blackwell of Blackwell Burke PA and Steven Schleicher of Maslon LLP.
Chauvin is represented by Eric Nelson of Halberg Criminal Defense.
The case is State of Minnesota vs. Derek Chauvin, case number 27-CR-20-12646 in Hennepin County District Court.
--Editing by Steven Edelstone.
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