Judge Peter Cahill, who is presiding over the George Floyd case, rejected a request by the prosecution on Thursday to enter newly discovered evidence and threatened to declare a mistrial if any prosecution rebuttal witness “even mentions” the existence of tests that show George Floyd had normal carbon monoxide level at the time of his death.
Prosecutor Jerry Blackwell told Judge Peter Cahill on Thursday morning that the state had just received blood gas evidence from Hennepin County medical examiner Andrew Baker, who performed Floyd’s autopsy, that contained readings for the carbon monoxide content in his blood on the day it was arrested.
The evidence, Blackwell said, was discovered after a former chief medical examiner called by the defense as an expert witness speculated in court that Floyd could have been exposed to carbon monoxide poisoning when he was pressed to the ground under Chauvin’s restraint near a squad car last May.
Though the witness, David Fowler, said he had no knowledge of whether Floyd’s blood had even been tested for carbon monoxide, he pointed to potential carbon monoxide poisoning when listing each of the factors he felt played a role in his death.
Blackwell grilled Fowler, the defense’s sole witness who took the stand on Wednesday, over the speculation during cross-examination later that day.
“You agree as an expert witness that you shouldn’t jump to conclusions? That is, you should reach fair conclusions based upon a careful considered analysis?” Blackwell asked. Fowler agreed.
“Do you agree that you shouldn’t come at this in a way that’s biased? You agree with that, don’t you? You shouldn’t cherry-pick facts? You shouldn’t try to confuse the jury?” Blackwell continued.
During comments to Cahill on early Thursday, Blackwell said Baker had discovered results from tests conducted when Floyd’s body was examined last year that had information related to his carbon monoxide content.
Blackwell said the state had previously subpoenaed all the medical records, but it did not receive records containing the evidence in question.
Cahill ultimately determined that the evidence would not be allowed to be presented to the jury as the defense geared up to rest its case in the trial, which entered its fourteenth day on Thursday. Cahill warned of a mistrial if the state’s rebuttal witness, Martin Tobin, discussed the evidence when he was expected to take the stand later.
“The defense gave notice that this was going to be an issue and specifically talked about testing the sample,” Cahill said.
“Even if it’s just because Dr. Baker called the state and said, ‘We, we can actually find this at eight o’clock this morning,’ when the defense expert is done testifying, has left the state,” he said, referring to Fowler.
“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. This late disclosure is not the way we should be operating here,” the judge also said.
The prosecution rested its case after calling 38 witnesses over 12 days. Prosecutors sought to prove that Chauvin used excessive and unreasonable force when he kneeled on Floyd’s neck and back for nine minutes and 29 seconds last May. Their case relied heavily on multiple videos of Chauvin’s actions, analysis by policing experts criticizing Chauvin’s actions, and medical testimony determining Floyd died due to the restraint.
Chauvin, 45, has pleaded not guilty to second-degree unintentional murder, third-degree murder and second-degree manslaughter charges.
NEW EVIDENCE: "It's going to be a mistrial, pure and simple."
Judge Cahill rules on the newly discovered evidence about carbon monoxide concentrations in #GeorgeFloyd’s blood.
— Court TV (@CourtTV) April 15, 2021