People who have watched the Derek Chauvin trial have seen video of the passenger in George Floyd’s SUV, a man dressed in red sweatpants with blue stripes down the side, a white shirt, and a red baseball cap.
His name is Morries Hall, the person whom Courtney Ross, George Floyd’s girlfriend, suspected of supplying him with drugs. In his opening statement, Chauvin’s lawyer promised the jurors that they would hear from Hall that Floyd consumed pills while they were in the car.
The most hotly contested issue in the Chauvin case will be the cause of death. The prosecution intends to prove that Chauvin’s restraint of Floyd was a substantial cause of his death. The defense wants to introduce reasonable doubt by arguing that he died of an accidental drug overdose. On the overdose issue, Hall’s testimony appears to be quite important. The problem for the defense, however, is that he may not testify at the trial.
Hall is currently being held at the jail in downtown Minneapolis, where he appeared, via video, earlier this week. He is being held in jail on a domestic assault charge from another county. He has received subpoenas from the defense and the state; he is right across the street from the Government Center, where the trial is being held, so how it is possible that he may not testify?
Under the Fifth Amendment to the United States Constitution, a person has a right not to incriminate oneself. When a witness, who is subpoenaed for trial, is going to be asked questions under oath, and answering those questions could force him to make admissions of guilt to a crime, a lawyer is appointed to represent him to discuss whether he can, or should, invoke his Fifth Amendment right to remain silent.
The Hennepin County Public Defender’s Office represents potential witnesses who are eligible for public defender services. Hall’s lawyer, public defender Adrienne Cousins, moved to quash the subpoenas summoning him to testify. Quash simply means that the judge would cancel the subpoena. Earlier this week, the judge held a hearing to determine whether Hall had legitimate Fifth Amendment concerns.
During the hearing, the judge asked the defense what he intended to ask the potential witness. In response, the defense listed the following questions: Where did the counterfeit $20 bill come from? Why did he give a false name to the police? What object did he throw from the backpack he was holding? Why did he leave the state? And where did Floyd obtain his drugs?
Each of these proposed questions could force Mr. Hall to give information, under oath, which could later be used to prosecute him. This is exactly what the Fifth Amendment to the constitution protects against. Let’s look at the answers those questions could elicit from Hall.
If he acknowledged knowingly passing a counterfeit bill, giving a false name to the police, possession of drugs, and sale of drugs, he could be prosecuted for those crimes.
The biggest danger to Hall is that he could be charged with third-degree murder if he sold or gave Floyd the drugs that led to his death. This is not the same section of the third-degree murder statute with which Chauvin is charged. There is a different section that pertains to drug overdose deaths.
It does not matter that the Attorney General’s theory in the Chauvin trial is that Chauvin’s actions caused Floyd’s death. Hall could theoretically be prosecuted by the Hennepin County Attorney’s Office for third-degree murder for providing the drugs that led to his death. Chauvin’s defense lawyer has hired a medical examiner who will presumably testify that Floyd died of a drug overdose, so it’s not farfetched that Hall could be charged with third-degree murder for providing those drugs to him.
The judge appeared to agree with Cousins that Hall’s Fifth Amendment rights were properly invoked, with one exception. He seemed to leave open the door for the defense to ask Hall about Floyd’s demeanor. The defense lawyer was ordered to write out his proposed questions and the judge will decide whether Hall can be put on the stand at all.
A lawyer can’t call a witness simply to ask him questions to which he invokes his Fifth Amendment right to remain silent. Otherwise, the defense’s questions would be, “You gave George Floyd fentanyl pills right before the police arrived?” Hall would then answer, “I invoke my Fifth Amendment right to remain silent.” Although he is not agreeing to the question, the defense is suggesting the truth of the statement just by posing the question. The judge is not going to allow that to happen in the Chauvin trial.
Although the state also subpoenaed Hall, it is clear they do not want him to testify. If they wanted his testimony, they could decide to give him immunity (or get an agreement from the Hennepin County Attorney’s Office) from prosecution on any potential drug, counterfeiting, or murder charges.
By giving him immunity, he would have to testify because there would be an agreement in place that nothing he said could be used against him. The state has not made that offer, however, so if the judge decides to quash the subpoena the defense is out of luck.
Mary Moriarty was a public defender for 30 years, most recently for Hennepin County. She welcomes readers’ responses to firstname.lastname@example.org.