[Legal Insurrection] The big surprise of the day, however, was the state’s sudden claim that they had discovered "new evidence" that justified re-calling state expert witness Dr. Martin Tobin, pulmonologist, to the witness stand to rebut some of yesterday’s testimony by defense expert Dr. David Fowler, a forensic pathologist.
The "new evidence" was purportedly just-discovered data on Floyd’s blood oxygen levels when at the Hennepin County Medical Center.
The state wished to have Dr. Tobin testify about that data to rebut suggestions by Dr. Fowler that given the proximity of Floyd’s face to the exhaust of squad car 320, it was possible that Floyd’s carbon monoxide blood concentration could have been as high as 18%—a level Fowler testified was sufficient to be dangerous to Floyd, and a contributing cause to Floyd’s death, given Floyd’s fragile physiology.
Judge Cahill agreed with the defense with respect to this "newly discovered" blood gas level data, and informed the state that if Tobin so much as hinted at this new data, the Judge would order a mistrial had occurred.
That direct questioning on rebuttal was conducted by Prosecutor Blackwell and took only about 8 minutes. Excitement, of the legal type, occurred about four minutes into direct when Tobin appeared to reference the blood gas data that Cahill had cautioned would result in a mistrial.
Nelson immediately objected, and the court went into a couple of minutes of sidebar, during which I’m sure the defense was asking for a mistrial.
Frankly, in my professional opinion, a mistrial in this case would be entirely warranted, if not from this particular incident in isolation, then from the accumulated harms done to the defense by the state’s untimely dropping of thousands of exhibits on the defense even as the trial proper was taking place, averaging nearly 500 new exhibits each day of the trial.
At the end of that sidebar, however, Blackwell returned to continue his direct of Tobin, so no mistrial, and presumably he was cautioned to avoid mention of the prohibited blood gas data.
Witness Creates Grounds for Possible Mistrial in Chauvin Trial:
Earlier today, the defense rested in the murder trial of former Minneapolis Police Officer Derek Chauvin, charged in connection with the in-custody death of George Floyd.
Chauvin waived his right to testify on his own behalf, asserting his Fifth Amendment right to remain silent during the course of the trial. That was not a surprising development.
But what came next was quite surprising, and potentially a critical moment in the case for the prosecution.
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