In case you're not over Chauvin's claim that murderer was wronged: Here's latest try at new trial

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The attempts to get ex-cop and convicted murderer Derek Chauvin out of jail after he kneeled on George Floyd’s neck for more than nine minutes just keep rolling in. This time, they’re coming in the form of an 82-page brief filed on Monday to detail Chauvin’s believed grounds for an appeal.

Chauvin filed a notice of appeal last September and argued in that document that the “District Court abused its discretion when it denied Appellant’s motion for change of venue or a new trial.” In the recent brief, attorney William Mohrman expounded.

“The threat of violence here was real in the extreme,” he wrote in the brief. “The courthouse was surrounded by barbed wire and soldiers during the trial. Prior to jury deliberations, National Guard troops were deployed throughout Minneapolis, businesses boarded up their buildings and schools were closed ‘bracing for a riot’ in the event Chauvin’s acquittal. The jurors, because they were not sequestered, saw this every day.”

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Mohrman claimed pre-trial publicity was “more extensive than in any trial ever in Minnesota”; that “every potential juror and seated juror admitted detailed knowledge of both Floyd’s death, Chauvin’s involvement and the riots”; and prosecutorial misconduct was overlooked.

The attorney wrote of the alleged prosecutorial misconduct: “The most egregious example is the State producing on the last day of trial testimony—April 15—and after the defense had rested, Floyd’s blood gas levels showing a level of 1.5% carbon monoxide.”

The defense tried to use the testimony of forensic pathologist David Fowler to imply that carbon monoxide exposure, “because Floyd’s head was near the exhaust of the running Squad car,” contributed to his death. But Fowler admitted that he’s seen no air monitoring data that would inform him on how much, if any, carbon monoxide would’ve been in Floyd’s breathing zone.

RELATED STORY: Forensic pathologist named in lawsuit for his medical opinion is best Chauvin defense can do

Chauvin’s defense was able to get a new report showing the low carbon monoxide exposure thrown out of the trial, but Mohrman is now arguing the court still allowed aspects of the report into trial.

Mohrman wrote of Martin Tobin, a Chicago pulmonologist and critical care physician who testified for the prosecution:

Despite this, Dr. Tobin did mention the report in his testimony.

Q. Would you tell the ladies and gentlemen why that statement [Dr. Fowler’s opinion] is not reliable?

A. I base it on the arterial blood gas that was obtained when Mr. Floyd was in Hennepin County.

Other issues Mohrman submitted for review in the appeals brief:

Whether “a police officer can be charged with felony-murder with assault as the predicate offense.”
Whether “allowing seven witnesses to testify on reasonable use of force is cumulative evidence justifying reversal.”
Whether “not allowing Chauvin to present a complete defense justifies reversal.”
Whether “failure to record sidebars resulted in a violation of fair trial right.”
Whether “upward departure in sentence was justified.”

Read the full appeals brief:

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Many of them aren’t exactly new elements of the defense’s attempt to get a murderer out of jail. They were laid out in the notice of appeal. In that document, attorneys accused the state of committing “prejudicial prosecutorial misconduct” and abusing its discretion when it didn’t sequester the jury throughout the trial.

Attorneys also accused the court of failing “to make an official record of the numerous sidebar conferences that occurred during trials,” and not giving due consideration to an earlier motion for a new trial due to alleged “juror misconduct.”

The integrity of a particular juror in Chauvin’s trial was called into question just days after Chauvin was sentenced because that juror attended a march for Dr. Martin Luther King Jr., CBS-affiliated WCCO reported last May.

Rachel Moran, a law professor from the University of St. Thomas, told WCCO then that an important consideration in the case is whether lawyers did their job in investigating jurors. The juror, Brandon Mitchell, said in a questionnaire WCCO obtained that he never took part in a protest about police brutality and that the phrase “Black lives matter” simply means Black people “want to be treated as equals and not killed or treated in an aggressive manner simply because they are Black.”

“If he had been asked about it and he tried to hide it, that could be an issue,” Moran said. “But at this point, I don’t see anything, any evidence that he tried to hide it.”

Another repeated defense refrain laid out in the appeal brief is this belief that Chauvin was sentenced too harshly.

Well, the prosecution pushed for an upward departure from sentencing guidelines, and Judge Peter Cahill agreed with four of five of its claims that there were “aggravated sentencing factors” to qualify a longer sentence for the ex-cop in a pre-sentencing court document filed last May. Cahill found that Chauvin abused a position of trust and authority; was particularly cruel; committed an act of crime in the presence of children; and committed a crime as part of a group of at least three other people.

The one aggravating factor Cahill parted with the prosecution on was that Floyd was “particularly vulnerable” in comparison with other murder victims.

Chauvin, who’s being held at a maximum security prison, was sentenced to 22.5 years last April. He pleaded guilty of depriving Floyd of his rights in the federal case against Chauvin late last year.

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