The previous post covered the strange things that seemed to be happening with the jury, and a separate witness intimidation of the Defense’s use-of-force expert. However, that is not the craziest thing to happen in the post-verdict part of the Derek Chauvin case. The craziest thing seems to be what was just revealed in a motion in the Tou Thoa case. The defense has made a serious allegation IN COURT of WITNESS INTIMIDATION, seeking to change the testimony of key figures in the trial.
The response of the state has come, and amazingly, very few facts have been challenged. The basic point of their motion is that the prosecution did not know anything about it, and therefore, it is not “prosecutorial misconduct.”
Here’s what we know so far:
Motion for Sanctions due to Prosecutorial Misconduct
The Defense has alleged prosecutorial misconduct in the Tou Thoa case. You can read the document here, in full. The defense alleges witness intimidation of the Hennepin County Medical Examiner. The allegation is quite specific. The facts are summarized as follows in the argument section of the document:
Dr. Mitchell orally made the threat to unlawfully injure Dr. Baker’s trade unless Dr. Baker changed his autopsy findings. Dr. Mitchell told Dr. Baker to include neck compression in the final findings and warned Dr. Baker he was going to publish a damaging op-ed in the Washington Post. After Dr. Baker changed his findings, Dr. Mitchell did not publish the op-ed. Moreover, Dr. Mitchell unlawfully injured Dr. Fowler’s trade by penning an open letter which resulted in an investigation into every death report in Maryland during Dr. Fowler’s tenure.
If you will remember, this post noticed that the initial findings that were reflected in the Complaint against Derek Chauvin seemed to contradict the prosecution’s signals and swift move to prosecution. The press conference was being given on May 29, 2020, before the information from the Medical Examiner had come through. When the information from the Medical Examiner was released, we found that the complaint stated:
The Hennepin County Medical Examiner (ME) conducted Mr. Floyd’s autopsy on May 26, 2020. The full report of the ME is pending but the ME has made the following preliminary findings. The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. The combined effects of Mr. Floyd being restrained by the police, his underlying health conditions and any potential intoxicants in his system likely contributed to his death.
To me, that looked like they had left a blank spot in the Complaint, waiting to fill it with what the Medical Examiner said. However, what the Medical Examiner said did not AT ALL help the prosecution. Tou Thoa’s attorney is attempting to fill in the blanks of what happened in that time. In the full statement of facts, we read the following:
1. Dr. Andrew Baker, the Hennepin County Medical Examiner, conducted an autopsy of George Floyd on May 26, 2020. See Complaint in State v. Chauvin (27-CR-20-12646).
2. On Tuesday May 26, 2020, Dr. Baker met with prosecuting attorneys to explain his findings from the autopsy. See Exhibit 6. Dr. Baker conveyed that “[t]he autopsy revealed no physical evidence suggesting that Mr. Floyd died of asphyxiation. Mr. Floyd did not exhibit signs of petechiae, damage to his airways or thyroid, brain bleeding, bone injuries, or internal bruising”. Id
3. On Friday May 29, 2020, the Complaint stated that the full report of the ME was pending, but that the preliminary findings “revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation”. See Complaint in State v. Chauvin (27-CR-20-12646).
4. At some point prior to June 1, 2020, Dr. Roger Mitchell – former Medical Examiner of Washington D.C. – read Dr. Baker’s preliminary findings. See Exhibit 1.
5. Dr. Mitchell spoke with Dr. Baker before Dr. Baker finalized his findings on June 1, 2020. Id. During the conversation between Dr. Mitchell and Dr. Baker, the following transpired:
a. Dr. Mitchell “called Baker and said first of all Baker should fire his public information officer”. Id.
b. “Then Mitchell asked [Baker] what happened, because Mitchell didn’t think it sounded like Baker’s words.” Id.
c. “Baker said that he didn’t think the neck compression played a part…” Id
6. Over the weekend, Dr. Mitchell thought about Dr. Baker more. Id. After the phone conversation between Dr. Mitchell and Dr. Baker, Dr. Mitchell decided he was going to release an op-ed critical of Dr. Baker’s findings in the Washington Post. Id. Dr. Mitchell first called Dr. Baker to let him know. Id. The following transpired:
a. Dr. Mitchell called Dr. “Baker first to let him know that he was going to be critical of Baker’s findings”. Id. “In this conversation, Mitchell said, you don’t want to be the medical examiner who tells everyone they didn’t see
what they saw. You don’t want to be the smartest person in the room and be wrong. Said there was a way to articulate the cause and manner of death that ensures you are telling the truth about what you are observing and via all of the investigation. Mitchell said neck compression has to be in the diagnosis.” Id.
7. Following the two conversations, on Monday June 1, 2020, the Hennepin County Medical Examiner issued a Press Release Report containing the final autopsy findings. See Exhibit 2.
a. The final autopsy findings included neck compression. Id. This was contrary to Dr. Baker’s conclusion before speaking with Dr. Mitchell twice.
The document that the motion cites to as “Exhibit 1,” which is not available on the public website. However, it appears to be a part of the discovery in these trials. From the State’s response, it appears to be the State’s legally mandated requirement to inform the defense of conversations with outside parties in the prosecution.
Additionally, if you remember, this was not a MINOR thing. This is the reason that the Hennepin County District Attorney Mike Freeman was REMOVED FROM THE CASE. As the Minneapolis Star Tribune reported:
Citing “sloppy” work, a judge on Friday banned Hennepin County Attorney Mike Freeman and three of his staffers from working on the case against the former Minneapolis police officers charged in George Floyd’s death, but he is reconsidering after Freeman pushed back.
Hennepin County District Judge Peter Cahill issued the ruling during a nearly 3 ½-hour hearing that covered a wide range of topics.
The ruling related to a meeting some staff lawyers had with the Hennepin County medical examiner, a likely witness in the case, which allegedly violated the rules of professional conduct for attorneys.
“I think it was sloppy not to have someone [else] present [at a meeting with] a primary witness in this case,” Cahill said.
That is the context of this motion for prosecutorial discretion. This isn’t an idle issue. It’s a serious one.
The State’s Response to the Motion for Sanctions
The state has preliminarily responded in the following way (read the full document here):
Dear Judge Cahill:
This afternoon we received Defendant Thao’s motion for sanctions. The bizarre allegations offered in support of the motion are false and wrong and we intend to file a complete response. The State respectfully requests that the Court give us one week to file a response.
/s/ Matthew Frank
Assistant Attorney General
That reply was sent on May 12, 2021. One week is today, May 19, 2021. The document was posted publicly today, May 2021. Amazingly, the state mostly confirms what the Attorney for Tou Thoa said. Here is an excerpt from the State’s statement of fact:
At some point before Dr. Baker issued his findings and autopsy report on June 1, 2020, Dr. Roger Mitchell, who was acquainted with Dr. Baker professionally as a colleague and fellow forensic pathologist, reached out to Dr. Baker, and they discussed this case [footnote 1]. (Def. Ex. 1.) Dr. Mitchell was the Chief Medical Examiner for the District of Columbia and a national expert on deaths in custody, having authored a NAME position paper regarding the investigation and examination of such deaths. [footnote 2] The State did not know of, much less make contact with, Dr. Mitchell until the fall of 2020, during its routine search for potential experts. As part of that process, Dr. Mitchell, like other potential experts, was provided with case materials to review. On November 5, 2020, the State discussed with Dr. Mitchell his review of those materials. (Def. Ex. 1.) The State had similar discussions with the other experts it engaged. During the November 5 meeting, in addition to discussing his review of the materials, Dr. Mitchell mentioned that he had spoken with Dr. Baker before Dr. Baker had issued his final autopsy report, and Dr. Mitchell provided a general overview of those discussions. (Def. Ex. 1.)
Ultimately, the State opted not to utilize Dr. Mitchell as a testifying expert witness. Nonetheless, the State included the summary of its November 5, 2020 conversation with Dr. Mitchell as part of its disclosures. (Def. Ex. 1.) The disclosures pertaining to the review of case materials by the State’s potential experts, including the summary of the November 5, 2020 conference with Dr. Mitchell, were made to Defendants on February 2, 2021, in conjunction with the State’s expert disclosures, following the Court’s extension of the deadline for substantive expert disclosures. (Supp. Discl., Bates Pages 41363-42955, Feb. 2, 2021.) Defendants were free to follow up on the information provided in the summary with Dr. Baker or others as part of their own case preparation, and they remain free to do so.
On April 20, 2021, nearly one year after George Floyd’s death, a jury found Defendant Chauvin guilty of all counts at trial. Thereafter, after having watched Dr. David Fowler’s April 14, 2021 testimony for the defense, hundreds of physicians independently exercised their own professional judgment and signed on to an open letter seeking review of all in-custody death investigations conducted by the Maryland State Office of the Chief Medical Examiner under Dr. Fowler’s supervision between 2003 and 2020. (Def. Ex. 5.) The State played no role whatsoever in the drafting of this letter. Nor did the State even know of the existence of this letter until after it was publicly circulated.
Footnote 1: It is commonplace for physicians to consult with one another about a case. The National Association of Medical Examiners (NAME) Accreditation Program “is a peer review system,” with the goal of improving performance “through objective evaluation and constructive criticism,” in which an “inspector,” who is the medical examiner’s peer, “serves as a guest consultant.” NAME, Inspection and Accreditation, https://www.thename.org/inspectionaccreditation. Indeed, Dr. Baker’s final autopsy report “was reviewed by another board-certified forensic pathologist prior to release,” pursuant to the Medical Examiner’s Office policy. Autopsy Report, June 1, 2020, https://www.hennepin.us/ME.
Footnote 2: Roger Mitchell, et al., “National Association of Medical Examiners Position Paper: Recommendations for the Definition, Investigation, Postmortem Examination, and Reporting of Deaths in Custody,” 2017, available at https://ocme.dc.gov/sites/default/files/dc/sites/ocme/release_content/attachments/Deaths%20in%20Custody_NAME
Amazingly, this pretty much confirms the main points of the Tou Thoa allegations of intimidation. The state makes a case that they did not know anything about this back-and-forth. And that may very-well be true. [After all, it would be ridiculously stupid to do.] However, the fact that the prosecution did not know about the back-and-forth between Dr. Mitchell and Dr. Baker does not mean that the back-and-forth did not happen or that it was not witness intimidation.
But let’s get into the facts of what we know. Who is this “Dr. Mitchell” guy anyway?
Who is this Dr. Roger Mitchell?
Well, here is a picture of him:
If you want to know who Roger Mitchell is, you can just google him. He isn’t a nobody. As you can see from the document filed in Court, Dr. Mitchell was formerly the Chief Medical Examiner for the District of Columbia. However, according to this Washington Post article, you can read the following:
And now D.C. Mayor Muriel E. Bowser has appointed Mitchell as the city’s interim deputy mayor for public safety and justice. That means that in addition to his duties as the chief medical examiner, Mitchell will oversee D.C. police, Fire and Emergency Medical Services and the Department of Forensic Sciences, among others. Mitchell is hoping that his public health approach — which in recent years has included ministry inside prisons and calling for policy reforms to systemic violence in Black communities — will remedy some of the city’s most persistent issues as he assumes his new role.
. . .
Mitchell says he’ll need synthesis and coordination among all city agencies to significantly reduce the number of killings and fatal overdoses. His plan to address violence as a public health issue means bolstering social programs while renewing the public’s trust in the police as purveyors of community safety.
Mitchell said he believes he may be the first medical examiner in history elevated to such a senior public safety role, and Sally Aiken, president of the National Association of Medical Examiners, agreed. While it may be unprecedented, Mitchell and Aiken both argue the move isn’t much of a stretch — they say the ways medical examiners think about and process death using forensic pathology lends itself to public health initiatives.
. . .
He was one of several people — including D.C. Health Director LaQuandra Nesbitt — to author a 2017 article that explored the violence epidemic in the Black community and the urgent need for more robust policies. The paper was published in the Journal of the National Medical Association, where Mitchell chairs the Task Force on Gun Violence. He said he hopes his interest in this area will lend itself to his new role in the District, where a crescendo in gun violence has led the mayor to ask every city agency to think of ways to stop it.
Hm…. He wants to fight against “systemic violence.” Does that sound like someone calling balls-and-strikes in an autopsy room?
That’s from the Washington Post, but it cites a document published by the D.C. government. You can read it in full here. Note what it says about the role of medical professionals:
While psychological injuries may be more difficult to ascertain, the physical injuries that result from excessive police use of force are apparent and extensively documented. Physical injuries that occur due to excessive police use of force may include, but are not limited to, gunshot wounds, blunt force injuries that can result in multiple bone fractures as well as closed head injury. Many of these injuries can cause permanent disability and even death. When an arrest is indicated, it is imperative that police officers have been properly trained in techniques designed to safely restrain individuals with the goal of safe transport of the individual to the police station or area hospital. Life threatening techniques, such as the ‘choke hold’ and the practice of one or more officers placing their body weight on top of the restrained person must be banned. These techniques were the direct cause of fatality in the widely publicized deaths of both Eric Garner and John Hernandez. Furthermore, de-escalation techniques, which are similar to those employed in hostage negotiation, should be utilized whenever safely possible and uniformly used on all suspects regardless of race, mental health status, ethnicity or gender. The Salt Lake City Police Department, which embraced de-escalation tactics following a series of questionable officer involved fatal shootings, has had no fatal shootings in over 20 months as a result of de-escalation training. Appropriate and safe restraint techniques should be the standard and in the event a person in custody is injured, the individual must receive prompt and appropriate medical attention.
. . .
As a result, legislatively mandated reporting of arrest-related deaths still does not accurately reveal the complete toll that police use of excessive force has on our communities. The NMA can be an advocate for legislation that accurately measures the impact of police use of excessive force, particularly in communities of color. Appropriate parameters should include a medical examiner system dedicated to the proper investigation, examination, certification and reporting of arrest related deaths in custody to ensure an objective and accurate assessment of these fatalities. The public health community can no longer be silent regarding the impact of police violence on the mental and physical health of our patients. As described by Cooper and Fullilove, there must be a coordinated multifaceted approach that develops viable solutions in the “life-cycle” that leads to excessive police use of force. This approach will require prevention and intervention strategies that focus on poverty, crime, policies of mass incarceration, police review and oversight, police culture and unions, as well as implicit bias to name a few. The public health practitioner must advocate for community policing. A community policing policy that requires officers walk or ride in the neighborhoods they patrol and includes culturally competent training will afford officers an opportunity to develop the relationships necessary to reduce crime and have a positive impact on the communities they serve.
If you notice something, we see that these issues of “officers placing their body weight on top of the restrained person must be banned.” Note that they AREN’T banned, but this paper (written with Dr. Mitchell) says that they SHOULD be banned.
Are you seeing the political motivations behind this?
What This Means for the Previous and Coming Trials
This is a big deal — a big deal both in the previous and coming trial. Political motivations can cause the whole trial to be tainted, even reversed.
Now, I’m not saying that “political motivations” are bad things to have. Plenty of people have political motivations, and politics is a healthy part of any functional society. However, political motivations are never a healthy part of a functional judicial process.
The very serious allegation of the Thoa motion is that politics — the desire for a guilty verdict, no matter the cost –will prevent Thoa from having a fair trial. By implication, it also involves Chauvin not having a fair trial.
As far as I’m concerned, if Dr. Mitchell wants to write his op-ed, then FINE! Op-eds happen all the time. One of the witnesses for the prosecution wrote Op-Eds himself. But why would the writer of an Op-ed in Washington D.C. (who is climbing the ladder of Washington D.C. politics) call a witness in a major trial, threatening to publish a damaging Op-ed? That is not fine. That sounds like witness intimidation.
It’s like the career-equivalent of leaving the head of a pig on your front porch and smearing its blood all over someone’s home. ….as if that could ever happen.
Further “Witness Intimidation” by Dr. Mitchell
Oh, but that wasn’t all he did either. He also made calls to have every single one of the autopsies of another Chauvin Defense witness investigated. This was Dr. Fowler. This is who he is, and you may be able to recognize him from the Chauvin Trial:
It is basically unargued that Dr. Mitchell asked that all of Dr. Fowler’s reports be audited. In fact, the letter he wrote was an exhibit, which you can read in full here. Here’s part of what he wrote:
The purpose of this letter is to bring your attention to the recent sworn testimony provided by the former Chief Medical Examiner for the State of Maryland in Trial 27-CR-20-12646: State vs. Derek Chauvin. The testimony, proffered by David Fowler, MB, ChB.Med.Path, on April 15, 2021, revealed a highly questionable cause of death opinion. The cause of death opinion, particularly the portion that suggested open-air carbon monoxide exposure as contributory, was baseless, revealed obvious bias, and raised malpractice concerns. The cause of death statement of any individual should be an injury, disease, or combination thereof, reached to a reliable degree of medical certainty.. We believe the unsubstantiated opinion that carbon monoxide exposure may have contributed to the death of George Floyd is far outside that standard and is grounds for an immediate investigation into the practices of the physician as well as the practice of the Maryland State Office of the Chief Medical Examiner (OCME) while under his leadership. In addition, Dr. Fowler’s stated opinion that George Floyd’s death during active police restraint should be certified with an “undetermined” manner is outside the standard practice and conventions for investigating and certification of in-custody deaths. This stated opinion raises significant concerns for his previous practice and management.
. . .
Our disagreement with Dr. Fowler is not a matter of opinion. Our disagreement with Dr. Fowler is a matter of ethics. The disingenuous testimony of Dr. David Fowler exposes the frailty of the current Medical Examiner/Coroner System and illustrates the lack of existing oversight and uniformity of practice. If forensic pathologists can offer such baseless opinions without penalty, then the entire criminal justice system is at risk. This testimony was given on camera and in view of the entire world, shining a light on what has occurred and will likely continue to occur in less visible trial testimony. Currently there is no oversight, path for formal professional reprimand, or accountability for giving expert forensic medical testimony that falls outside the reasonable standard of medical certainty. This is not an isolated incident and is in fact a longstanding issue in the US system of justice. While Dr. Fowler is not the first and is unfortunately not likely to be the last forensic pathologist to testify in such a manner, his being named in a current lawsuit for questionable certification of an in-custody death raises the concern of a pattern of bias in practice.
In other words, Dr. Mitchell is looking for a way to discipline people like Dr. Fowler. He says this is a matter of “ethics.” To me, it sounds like a matter of activism. As you can see in the text itself, Dr. Mitchell is just as concerned about “the US system of justice” as he is about the medical examiner and coroner system.
This is an activist doing activist things, punishing people who do not share his goals in a trial.
How Could This Have Happened?
The state does not challenge the underlying facts about the conversations, but they do say that it is an “outrageous” allegation that has no support. They say:
The State was not involved with Dr. Mitchell in any way at the time of his conversation with Dr. Baker following George Floyd’s death, and there was no collusion in any way, shape or form. The State was not even aware of any interaction between Dr. Baker and Dr. Mitchell until Dr. Mitchell mentioned their conversation in the fall of 2020. Should Defendant Thao have any questions for Dr. Baker about his findings in this matter, defense counsel has been, and continues to be, free and able to interview Dr. Baker himself at any time. See Beecroft, 813 N.W.2d at 834; Minn. R. Crim. P. 9.03, subd. 1. Indeed, Defendants could have followed-up on the information provided in the summary as soon as they received it. Instead, Defendant Thao chose to wait to file this motion until May 12, 2021, several weeks after Defendant Chauvin’s conviction. Defendant Thao now insinuates, without even a modicum of support, that the State engaged in an elaborate conspiracy in May or June 2020—almost a year ago, and at least nine months before Defendant Chauvin’s trial—to elicit coerced testimony from Dr. Baker and did so by enlisting Dr. Mitchell— someone the State spoke to for the first time months later—to act as a government agent to threaten and coerce Dr. Baker into testifying falsely on behalf of the State. This false and specious assertion is as nonsensical as it sounds. It is a shameless attempt to unfairly prejudice and sully the prosecution, and to misuse the court processes to launder a false narrative into the public domain. The Court should not entertain such tactics or repeated misconduct by the defense.
And at this point, it is worth noting that there isn’t much evidence that THE PROSECUTION did anything to coerce Dr. Baker. However, rather than simply point to that fact, the motion from the State says A LOT about how “prejudicial” this is to the prosecution and how it “should not be tolerated” by the Court. That’s rather strange to me. Speaking on behalf of the prosecution to the public, the Minnesota Attorney General said that the allegation is a “completely false and an outlandish attempt to disparage the prosecution.” If there is nothing to it, then there’s nothing to it.
However, is it so outlandish to think that a Washington D.C. political figure who is also the Medical Examiner would have an interest in the Hennepin County coroner’s report and make proactive phone calls to add in the phrase “and neck compression” into the final report?
Wouldn’t we need some nexus between this man in Washington D.C. and the George Floyd case?
Well, there is a potential nexus. That would be Minnesota Attorney General Keith Ellison himself, who is both active in the Washington D.C. political arena, Democratic Politics, and has a HUGE interest in the outcome of the Derek Chauvin trial and the Hennepin County coroner’s report. Why?
The connection would be Keith Ellison himself, who is both active in the Washington D.C. political scene, democratic politics, and has a HUGE interest in the outcome of the Derek Chauvin trial. We don’t have any evidence of Keith Ellison making that connection and getting help from a friend or political associate, but it is NOT outlandish to believe that the prosecution — via Keith Ellison himself or someone on his behalf — made some phone calls to the Washington D.C. medical examiner to get his prosecution out of a really, REALLY big hole.
“The Lady Doth Protest Too Much”
What is REALLY strange is how angry the prosecution is about this motion. Note what they say at the very beginning:
Defendant Thao has now filed his fourth motion for sanctions in this matter. This is yet another bad-faith attempt by Defendant Thao to debase the State, disqualify members of the prosecution team, and divert attention from his role in the death of George Floyd on May 25, 2020. This motion is part of an ongoing pattern by Defendant Thao of submitting requests for relief without any valid legal basis, in order to manipulate the narrative and influence public opinion.
Manipulate narratives? Public opinion? Have you seen any press confereces? I haven’t. That’s strange. Also, I’ve looked back at some of the past “motions” that are “bad-faith” and they’re not really bad faith. For instance, here is the State’s February 26, 2021 description of what happened when Thoa’s attorney accused the prosecution of being “less than candid”:
As will be explained below, the State was candid with the Court at that hearing. In further candor to this Court, the State concedes that investigation done after that hearing revealed the State had inadvertently not provided to the defense a single PowerPoint presentation from the Minneapolis Police Department (MPD) training materials. Statements made by the State at the January 11 hearing were candid because the State was working from the copy of the materials provided to the defense, which did not include that specific PowerPoint. The State did not learn of that specific PowerPoint until January 14, 2021, and disclosed it to defense counsel as soon as it could. While the State certainly regrets this human error, the motions of Defendants Thao and Kueng should be denied because their arguments are simply personal attacks on the State and do not address the legal standards for the relief they seek
. . .
Defendant Thao’s primary contention that the State was not candid at the January 11 hearing is wrong. Thao Motion 3. In addressing a different context, the undersigned informed the Court at that hearing that the State is working from the same PDFs as given to the defense; that was true then and is still true now. That is why the State did not know about the Lateral Vascular Neck Restraint PowerPoint until January 14 – the State was also working from the Bates-labelled PDFs that mistakenly did not include the Lateral Vascular Neck Restraint PowerPoint. As soon as it could, the State disclosed the PowerPoint to the defense. Defendants also allege this is evidence of “haystacking” the discovery, though it is not at all clear how this basic human error in the process of copying the files over proves the State was haystacking the discovery, and they make no effort to explain this unsupported allegation. Nor have they attempted to address how this honest mistake should lead to the remedies they seek
Um… so let me explain that to you. Basically, there was a Minneapolis Police Training powerpoint that taught officers how to do a “Lateral Vascular Neck Restraint.” That’s a neck restraint on the veins on the side of the neck. The Prosecution “mistakenly” did not give that to the defense. And then later did once they “realized its mistake.” It did not disclose this to the Court on January 11 because the prosecution was “mistakenly” working off the copies given to the defense which “mistakenly” did not include the fact that THE MPD TRAINS ON LATERAL VASCULAR NECK RESTRAINTS.
Now, regardless of whether that was a real mistake or not, does it sound like something the defense should get angry about? YOU BET IT DOES.
But anyway, back to the present motion. Look what the State says, because they are REALLY mad on this one:
While criminal defense attorneys generally have greater leeway than civil attorneys in zealously advocating on behalf of their clients, that leeway does not give them carte blanche to file with impunity repeated frivolous and disparaging motions with no good faith basis in fact or law. Cf. Wisconsin v. Glick, 782 F.2d 670, 673 (7th Cir. 1986) (“An argument in the teeth of the law is vexatious, and a criminal defendant who chooses to harass his prosecutor may not do so with impunity.”). Notably, in extreme cases, courts have imposed sanctions on attorneys for launching “gratuitous and public personal attack[s] on” the prosecution, United States v. Kouri-Perez, 8 F. Supp. 2d 133, 138 (D.P.R. 1998), for filing baseless motions of prosecutorial misconduct based on “innuendo,” “juxtaposition of inferences and attenuated circumstantial evidence,” Young v. Ninth Jud. Dist. Ct., In & For Cty. Of Douglas, 818 P.2d 844, 847 (Nev. 1991), as well as for “senseless, burdensome, purposeless motion practice,” United States v. Jeffords, 647 F. Supp. 906, 907 (D. Me. 1986); cf. United States v. Akers, 740 F. App’x 633, 634 (10th Cir. 2018) (affirming sanctions on criminal defendant for filing frivolous motions). State bar disciplinary committees have likewise imposed sanctions in extreme cases for attorneys’ misconduct in criminal cases. See, e.g., In re Yelverton, 105 A.3d 413, 428 (D.C. 2014) (“[R]espondent’s numerous meritless, repetitive, and at times vexatious motions and other filings, considered in their totality, caused more than de minimis harm to the judicial process.”); Disciplinary Couns. v. LoDico, 833 N.E.2d 1235, 1241 (Ohio 2005) (“Although criminal cases bring the responsibility and necessity of a vigorous defense, an attorney is not endowed with a concomitant right to denigrate the court in discharging that responsibility.”).
Accordingly, at a minimum, this Court should admonish defense counsel for frivolous motion practice under the professional rules. See In re Becraft, 885 F.2d 547, 550 (9th Cir. 1989) (While “courts generally tolerate arguments on behalf of criminal defendants that would likely be met with sanctions if advanced in a civil proceeding,” a court need “not stand by silently when an attorney repeatedly breaches his professional responsibility to the court.”); see also Minn. R. Prof. Conduct 3.1 (“A lawyer shall not . . . assert or controvert an issue, unless there is a basis in law and fact for doing so that is not frivolous.”).
The prosecution is not merely saying that the motion should be denied, they’re asking the JUDGE to SANCTION THE LAWYERS WHO FILED IT, even though… …it must be acknowledged, THEY DO NOT AND THEREFORE APPARETNLY CANNOT CHALLENGE THE FACT OF THE COMMUNICATIONS BETWEEN DR. MITCHELL AND DR. BAKER.
This is a serious issue. This should be headline news. This could be (Note: “COULD BE,” not “is,” at least not now) prosecutorial misconduct at the highest level on the biggest stage in a cross-country conspiracy to edit the testimony of expert witnesses to get a conviction of a person.
And it’s not all that crazy to believe that Keith Ellison used D.C. connections to influence the trial. In fact, as I spoke about in this previous post, Dr. Ezekiel Emanuel has already drafted an affidavit on delaying the trial due to COVID, which was noted by the judge to not even have been properly certified as an affidavit. Why is a New York doctor living in DC filing bad affidavits in the George Floyd trial? I don’t know, but the only good answer I can think of is Keith Ellison trying to salvage his prosecution.
What Does the Judge Think?
What does Judge Cahill think? Nobody knows. They’re not letting cameras into the courtroom on this one. However, I believe he is absolutely incensed as a general matter.
The reason I think this is that there is yet another matter before the judge on the Derek Chauvin Matter. Apparently, the New York Times was told that Derek Chauvin was “ready to accept a plea deal.” That ran in February, before the trial. In other words, THE JURY POOL SAW THAT.
Additionally, you can see the most recent filings in the cases are affidavits from attorneys, all of whom are being forced to state whether or not they were the source of a story that said that Derek Chauvin was ready to accept a plea deal. See here for one example. There are about a dozen of these affidavits in the record at this point.
I’m no expert on pissed judges, but that sounds like a pissed judge.
Note what the Defense is asking for in the consideration of this motion:
Defendant Thao has also asked for an order “requiring the State to disclose all materials relevant to the hiring/contracting of Dr. Mitchell, any and all audio recordings of Dr. Mitchell, [and] any and all communication with Dr. Baker on his reasoning for changing his factual findings after speaking with Dr. Mitchell.” (Def. Mot. at 8.)
That would include private communications between Keith Ellison and Dr. Mitchell.
Oh Snap. Therefore, it looks like this thing isn’t over at all, and it’s just going to get weirder and weirder.