Judge Warns of Mistrial in Chauvin Case If Witness Even ‘Hints’ at Newly Found Evidence

In a still image from video, Hennepin County District Judge Peter Cahill speaks with legal teams on the eleventh day of the trial of former Minneapolis police officer Derek Chauvin for second-degree murder, third-degree murder and second-degree manslaughter in the death of George Floyd in Minneapolis, Minn., on April 12, 2021. Pool via Reuters

The judge overseeing former Minneapolis police officer Derek Chauvin’s trial ruled Thursday against the inclusion of newly discovered test results.

Hennepin County Medical Examiner Andrew Baker delivered results for carbon monoxide testing on George Floyd’s body to prosecutors, prosecutor Jerry Blackwell told Hennepin County Judge Peter Cahill.

Blackwell said Baker located the results after watching David Fowler, a witness for the defense, speculated in court on Wednesday that carbon monoxide from a police vehicle’s exhaust may have contributed to or caused Floyd’s death on May 25, 2020.

Cahill asked whether prosecutors approached Baker or whether the medical examiner approached them. Blackwell said prosecutors did not ask Baker for the test results.

The prosecutor said the state subpoenaed all medical records before the trial but did not receive the results. Physicians did not request the readings because “they didn’t see how that was relevant,” he said.

Cahill noted that Fowler, in his report available before the trial, mentioned carbon monoxide, referring to it as a possible cause of death.

“That gave the state notice with sufficient time in February to either test the samples that are still there or to dig a little deeper. It’s just by serendipity that Dr. Baker calls the state and says, ‘oh, by the way, it does exist. It should be in there.’ It seems to me very odd,” the judge said. “I’m not claiming any bad faith on the state’s part. But it seems odd that Hennepin County Medical Center, when they’re asked to turn over all their records, that they don’t include records that maybe are just buried a little deeper.”

“The defense expert is done testifying, has left the state. It’s untimely to give the notice and it prejudices 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,” he added.

Dr. Martin Tobin, who the state planned to call to the stand this week, will not be allowed to testify about the results.

“If there’s anything he wished to add about carbon monoxide as far as environmental factors; but 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,” the judge said.

The prosecution asked whether Tobin could talk about results that were previously known, that show oxygen saturation levels.  “That would be permitted,” the judge responded.