Chauvin Trial Day 2 Wrap-Up: State Focused on Feelings, Judge Scolds Firefighter

Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd.  I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.

Today saw the Chauvin court wrap up the testimony of martial arts and security “expert” Douglas Williams, a bystander witness to Floyd’s in-custody death.  It also saw the state proceed through four women I’ll refer to as the “minor witnesses,” because they were bystander witnesses who under 18 years of age at the time of the incident.  Finally, the state brought the firefighter bystander witness to the stand, with court recessing partway through the defense cross-examination of her.

The most interesting event of the day was certainly during the testimony of the firefighter, when Judge Cahill cleared the jury from the room and scolded her for being argumentative with the defense during cross, before sending her to bed with no dinner and telling her to come back to the courtroom for further cross at 9:30am tomorrow (kidding about the bed and dinner part).

Before I dive into today’s testimony, there were a couple of procedural questions that folks brought up today, and it’s probably best to address them up front.

Witness Notes

One of these is the issue of a witness referring to notes while testifying.  This occurred with witness Williams, the MMA/Security/“Bro!” witness for the state.  Early in today’s cross-examination of Williams by the defense, Attorney Nelson noticed that Williams was holding some papers in his hand and kept looking at them, and asked Williams if they were notes. Curiously enough, Williams denied they were “notes,” but said he used them when he couldn’t remember things. Sounds like notes to me, but whatever.

Legally speaking, the problem with a witness holding notes is first of all that the witness is supposed to be testifying from memory.  Notes can be used by a witness to refresh their recollection, but then must be put down and the testimony again given from that (now refreshed) memory.

Even then, notes intended for such purposes must have been disclosed beforehand to the parties as part of the normal discovery possible, before the witness can make use of them on the stand—the parties are entitled to know what the notes actually say.  These notes of Williams were obviously not shared with the defense beforehand, and I rather doubt even the prosecution knew Williams was bringing them.

One fundamental concern about notes, of course, is that they could be written by anybody and handed to a witness with no actual personal knowledge of the events in question who simply reads off them to the jury.  There’s no way to cross-examine or impeach a piece of paper, after all.

So, the way Williams was using his notes was inconsistent with proper court procedure, and its procedure that matters.

Apparently, defense counsel didn’t think it enough of a problem to make a big stink over it, other than to ask Williams to limit himself to using the notes only to refresh his recollection.

Those of you who enjoyed my coverage of the Zimmerman trial might remember that one of the state’s medical examiners who testified at trial brought a whole bunch of notes with him, none of which had been disclosed to the defense.

When defense counsel Don West asked to see them—as was his right—the doctor adamantly refused to share them, grabbing them close to his person and screeching that they were his notes, his personal property, that he prepared in his own spare time.  It was reminiscent of Gollum and his precious ring.