As the prosecution recalled Dr. Martin Tobin as a rebuttal witness at the Chauvin trial, CNN legal analyst Laura Coates says the pulmonologist will have to be on the “on the shortest, tightest leash possible” to ensure the judge does not declare a mistrial.
Tobin previously testified that it was his opinion that George Floyd died from low oxygen levels, and he will now be rebutting the testimony of defense expert witness Dr. David Fowler, a retired forensic pathologist.
“The judge has been very clear he will declare a mistrial because any hint, any suggestion or mention of the Hennepin County data will be prejudicial to a defendant who gave notice through their witness expert about a theory of carbon monoxide poisoning. And they did not have the data disclosed to them in time to be able to potentially fully flush it out or to recoil on their own theory,” Coates explained.
“Appellate courts have no tolerance for prosecutors who do not disclose information in a timely fashion and try to get it through a rebuttal witness. And so, this prosecution team is going to have to be extraordinarily prudent. And I hope that this witness, as informative as he is, can stay ton that leash.”
The risk is that witnesses can be like wild cards, just like jurors, Coates explained.
“I don’t care if you are the most seasoned expert testifying witness. Sometimes they do not understand the implications of their slip-ups or making a statement … Defense attorneys are always on guard with this very point,” she said. “In the event of a conviction, they want to have their ducks in a row of how they can seek an appeal to overturn based on, especially, prosecutorial misconduct or any allegations based on that.”