Derek Chauvin Trail: Week Six (Ending of Prosecution Case)

The testimony of the prosecution’s final three witnesses and Judge Cahill’s rulings on several issues occupied the first day (April 12) of the trial’s Week Six.[1] This was after Week Four’s opening statements and testimony from 19 prosecution witnesses and Week Five’s 16 prosecution witnesses. [2] Thereafter the defense started presentation of its case, which will be discussed in a subsequent post.

Prosecution Witnesses [3]

36. Dr. Jonathan Rich (Associate Professor, Northwestern Memorial Hospital, Chicago and Cardiology Expert). He testified that in his opinion, “Floyd’s cause of death was cardiopulmonary arrest caused by low oxygen levels that “were induced by the prone restraint and positional asphyxia” from the officers’ restraint. The low oxygen sent him into cardiopulmonary arrest “much more slowly and gradually . . . . His speech [was] starting to become less forceful . . . until his speech became absent and his  muscle movements were absent.”

Moreover, Dr.  Rich testified, “I believe that Mr. George Floyd’s death was absolutely preventable.”  He also pointed out the following moments when Floyd’s death could have been prevented: (1) when one of the officers said, “I think he is passing out;” (2) when one of the officers twice suggested that Floyd be turned over; and (3) when one of the officers said Floyd no longer had a pulse. Chauvin rejected all of those suggestions, but if they had been accepted, Floyd could have been released from the restraint and CPR started.

Dr. Rich also testified, “I can state with a high degree of medical certainty that George Floyd did not die from a primary cardiac event and he did not die from a drug overdose.”

37. Philonise Floyd (George Floyd’s brother). He talked about how the two of them played video games and basketball together as children. When he looked at a photo of George as a toddler sleeping in the arms of their mother, the brother began to cry while saying he was “a big mama’s boy.”  Their mother died in 2018, and at her funeral, George sat at the coffin saying “Mom, Mom” over and over.

George was a talented athlete, marking his height on the wall, wanting to be taller to have an edge in sports. “He always wanted to be the best.He was excellent in football and basketball and won a scholarship to attend college in Florida. George made snacks for his younger siblings although he couldn’t cook. He was a person everyone loved. He just knew how to make people feel better.”

This testimony was permissible under a 1985 Minnesota Supreme Court decision allowing prosecutors to present evidence that a murder victim was “not just bones and sinews covered with flesh, but was imbued with the spark of life.”

The defense did not cross-examine Philonise.

38. Seth W. Stoughton (University of South Carolina Schol of Law; use-of-force expert). He said that the officers severely mishandled the arrest of Mr. Floyd at nearly every level. The prone position is meant to be a temporary position, typically used to apply handcuffs to a suspect, not the nine and a half minutes used on Floyd. The dangers of the prone position—making it more difficult for a suspect to breathe, particularly with extra weight on their back or neck—“have been well known in policing for decades.”

Stoughton concluded that “no reasonable officer would have believed that [kneeling on the prone body of Mr. Floyd] was an appropriate, acceptable or reasonable use of force;” that “there’s no specific and articulable facts that . . . a reasonable officer in the defendant’s position, could use to conclude that [Floyd] had the intention of causing physical harm to the officers or others;”and that “a reasonable officer would not have viewed the bystanders as a threat.”

Judge Cahill’s Rulings

At the start of the hearing, defense counsel Erik Nelson asked the court immediately to sequester the jurors and ask them whether they had learned about the civil unrest in Brooklyn Center in response to the police killing of a black man in that city and to order the jurors to avoid all news media. Prosecution counsel opposed both requests and Judge Cahill immediately denied same.

Also at the start of the hearing Mr. Nelson asked the court to deny the prosecution’s calling another witness (Dr.Stoughton)  about Chauvin’s use of force, especially  with another showing of the full video of Floyd’s restraint. After the prosecution said it would not be showing this witness the entire video, Judge Cahill ruled that Dr. Stoughton may testify, but only about national use of force standards and about the impact of bystanders on Chauvin’s actions.

Another issue raised before testimony was whether the defense may call Morries L. Hall, but that issue has not yet been resolved.

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[1]  This summary of Week Six is based upon watching some of the livestreaming of the trial and the following reports: Walsh, 3rd Week of testimony in Derek Chauvin trial has begun with medical expert, StarTribune (April 11, 2021); Walsh, Medical expert opened 3rd week of Chauvin trial testimony: George Floyd’s death ‘absolutely preventable,’ StarTribune (April 11, 2021); Barrett, George Floyd Could Have Survived if Restraint Eased, Cardiologist Jonathan Rich Testifies, W.S.J. (April 11, 2021); Kornfield, Hauslohner & McMilian, Live Updates: Cardiologist testifies that Derek Chauvin’s acts—not drugs or a heart condition—caused George Floyd’s death, Wash. Post (April 12, 2021); Wright, Takeaways from Day 11 of the Derek Chauvin Trial, N.Y.Times (April 12, 2021); Walsh, Brother breaks down telling jurors in Derek Chauvin murder trial of George Floyd’s love for their mother, StarTribune (April 12, 2021); Karnowski (AP), EXPLAINER: Prosecution explores Floyd’s ‘spark of life,’ StarTribune (April 12, 2021); Walsh, Simons & Sayle, What Happened Monday in the Derek Chauvin trial, StarTribune (April 12, 2021); Forliti, Karnowski & Webber (AP), Expert: Chauvin did not take action of ‘reasonable officer,’ Wash. Post (April 12, 2021); Kornfield, Hauslohner & McMilian, Live Updates: Cardiologist testifes that Derek Chauvin’s acts—not drugs or a heart condition—caused George Floyd’s death, Wash. Post (April 12, 2021).

[2] See these posts to dwkcommentaries.com: Derek Chauvin Trial: Week Four (April 2, 2021); Derek Chauvin Trial: Week Four (Commentaries) (April 5, 2021); Derek Chauvin Trial: Week Four (Sources) (April 6, 2021); Derek Chauvin Trial: Week Five (April 10, 2021); Derek Chauvin Trial: Week Five (Commentaries) (April 11, 2021); Derek Chauvin Trial: Week Five (Sources) (April 12, 2021).

Derek Chauvin Trial: Week Five (Commentaries)

Now that a summary of the testimony in Week Five has been provided [1], here is a collection of commentaries related to the trial.

          Will Chauvin Testify in This Trial? [2]

Observers expect that the prosecution will  finish its case-in-chief early this coming week with testimony from some members of George Floyd’s family and that the defense will start presenting its case-in-chief. The latter raises the question of whether Chauvin himself will testify.

Chauvin, of course, under the U.S. Constitution, has the privilege against self-incrimination and thus would not face any adverse legal consequences, if he (and his attorney) decide that he will not testify.

On the other hand, as Minneapolis criminal defense lawyer Joe Friedberg notes, “[T]his is a case that really centers on Chauvin’s state of mind, and the best person to tell us about that would be Chauvin, so . . . [attorney Erik Nelson]  might really be forced to put him on in this case.” Friedberg added that perhaps Chauvin could testify that he placed his knee on Floyd’s shoulder, not his neck. “When the defendant takes the stand and denies the things that make up the crime, that’s got to make the jury pause.” However, Friedberg cautioned, “Remember now, [Chauvin would be] taking the stand as the most hated man in America.”

Another Minnesota criminal defense attorney, Mike Padden, also thinks Chauvin should testify. He said, “I don’t think he has any choice but to testify. It’ll be a mistake if he doesn’t. The jury needs to hear from him, that’s the bottom line.”  Chauvin needs “to explain the reasoning behind his actions and to apologize, which could help negate the ‘depraved mind’ element needed to convict him on third-degree murder.”

Other attorneys and legal scholars reach the opposite conclusion: Chauvin should not testify. They believe “there’s little Chauvin can say to overcome a bystander’s graphic video showing him kneeling on Floyd’s neck for more than nine minutes as he pleaded for his life and repeatedly saying he couldn’t breathe. Pleas for mercy from several horrified bystanders, including children and an off-duty Minneapolis firefighter, were also captured in the video.”

For example, Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said, “Chauvin doesn’t come across as a character that you want to root for because of the video. [If he testifie, prosecutors] will take him through every single second of that video.  . . . In cross-examination he’ll just get beat up. It’ll be horrible for him. The risk is so immense for him to testify.”

Agreeing with Daly are two other Minnesota criminal defense attorneys, A.L. Brown and Andrew Gordon.

Attorney Brown said, Chauvin is “not incredibly sympathetic, so he doesn’t offer much by way of story line. It’s even worse for Chauvin because he’s got the chief of police saying,‘This guy’s not with us. We didn’t teach him to do that.’”

Attorney Gordon thinks that defense attorney Nelson already has signaled that he did not intend to call Chauvin to the stand because in the opening statement Nelson did not say much about him. “Most defense attorneys,” added Gordon, “ will tell you that you have to spend some time in your opening statement humanizing your client. You need . . .[the client] to be a person for the jurors” although Chauvin has “a baked-in advantage: . . . [he] is a cop, and the uniform and badge does a lot of the humanizing for” him.

Others have stressed that the face mask that Chauvin (and others in the courtroom) are forced to wear (unless speaking to the jury) “has hidden his reaction to testimony, including any sympathy or remorse that legal experts say can make a difference to jurors.” All the jurors see is the masked Chauvin scribbling notes on a notepad and having short unheard conversations with his attorney. Only at the start of the trial did Nelson have Chauvin remove his mask so the jurors could see his faced Yes, Chauvin appears in a well-fitted suit, shirt and neckti, not a police uniform. In addition, until one day last week, there was no one sitting in the chair in the courtroom reserved for someone from his family.

The StarTribune articles on this subject, however, fails to mention several other reasons why, in the opinion of this blogger, it would be a defense mistake to have Chauvin testify and forced to face cross-examination on the following subjects:[3]

  • Almost immediately after Chauvin was fired by the Minneapolis Police Department (MPD) and charged with state crimes for Floyd’s death, he had to have anticipated that he would be sued for significant money damages by Floyd’s family and, therefore, he (and his then wife) has a reason to take steps to try to protect their assets.
  • Such a civil lawsuit against Chauvin, the other three ex-officers and the City of Minneapolis for money damages was filed in Minneapolis federal court on July 15, 2020. Although the complaint did not specify the amount of alleged damages, the lead plaintiff’s attorney, Ben Crump, publicly stated, “This is an unprecedented case, and with this lawsuit we seek to set a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people — especially Black people — in the future.” In short, the case is “the tipping point for policing in America.”
  • The March 12, 2021, announcement of the City of Minneapolis’ $27 million settlement of the Floyd Family’s lawsuit did not make this financial issue for Chauvin (and his former wife) disappear. The City has a claim against Chauvin (and the three other ex-officers) for contribution to help reimburse the City for at least a portion of that huge sum, and an examination of the details of the settlement agreement presumably would have provisions on whether the Family was releasing the four officers, which seems unlikely.
  • Reflecting this motivation to try to protect their assets from such litigation, in those early days after the killing of Floyd, Chauvin and his wife reached a divorce agreement which provided a bulk of the couple’s assets gwould go to her and which a Minnesota state court subsequently found to be fraudulent and refused to approve until it had been significantly modified.
  • In addition, soon after Chauvin was fired and charged with crimes in state court, there are reports that he pursued a guilty plea agreement involving his serving a prison sentence in a federal prison even though he did not then face any federal charges, but then U.S. Attorney General William Barr reportedly rejected the proposal.
  • Chauvin and his then wife last year also were confronted with state criminal charges over alleged fraudulent Minnesota income tax returns and failure to pay such taxes.
  • Related to all of the above was the Chauvin’s couple having a condominium and other property in Florida.

                    The Chief’s Consultations Before Firing The Four Officers [4]

In his trial testimony, Chief Medaria Arradondo stated that on the day after the death of Mr. Floyd, he announced his decision to fire Derek Chauvin and the other three officers who were involved. (The following additional details about that decision are not in the trial record, but in the cited article by Libor Jany.)

Late the night of May 25th and the next morning, the Chief consulted with Black faith-leaders and community activists like Spike Lee, a local civil rights pioneer. At a morning meeting, according to Bishop Richard Howell of Shiloh Temple International Ministries, the Chief said he was torn about what to do. A FBI official in attendance raised the possibility of a civil rights investigation. Some in the room said there would be protests, and one even said there would be a “war.”  Other attendees included Nekima Levy Armstrong, Al Flowers, Leslie Redmond (former Minneapolis NAACP President) and Steven Belton (President and CEO of the Urban League Twin Cities).The Chief told them he would discuss the options with Minneapolis Mayor Jacob Frey.

Around noon on the 26th the Chief met with members of his senior command staff: then-Assistant Chief Mike Kjos and Deputy Chiefs Kathy Waite, Henry Halverson and Erick Fors while Art Knight (the Chief’s former chief of staff) joined by telephone. They all discussed the possibility of firing the four officers, but apparently no decision was made.

After this meeting the Chief made his decision to fire the officers and called and told the Mayor, who in a tweet at 2:00 p.m. announced the firings and said, “This is the right call.”  The Chief and the Mayor then held a public news conference to announce this important decision.

           Does “Blue Wall of Silence” Protect Chauvin? [5]

Usually police accused of wrongdoing can count on the “blue wall of silence”—protection from fellow officers refusing to cooperate with investigators. But that is not true for Chauvin.

As just noted, Chief Arradondo fired him immediately after the killing of Floyd and testified against him in the current trial. Other Minneapolis police officers have also so testified—Lieutenants  Richard Zimmerman, Johnny Mercil and Jon Edwards and Sergeants David Ploege and Ker Yang and Inspectorr Katie Blackwell. And the other three ex-officers facing criminal trial in August on charges of aiding and abetting the killing of Floyd probably will blame Chauvin. In addition, fourteen supervisory officers, including Zimmerman, signed an open letter last year saying Chauvin “failed as a human being and stripped George Floyd of his dignity and life. This is not who we are.”  

                                    Why Didn’t Other Officers Stop Chauvin? [6]

On May 25, 2020, Officer Thomas Lane was helping Derek Chauvin hold George Floyd to the ground in handcuffs and told Chauvin at least  twice that Floyd should be turned over. But Chauvin rejected the suggestion and Lane did not persist in his suggestion or express objection.  Nor did Officer Kueng, was also was helping hold Floyd down. When this happened, both of them were in training under the supervision of Chauvin. Nor did Officer Thao who was a nine-year veteran of the MPD.

Rosa Brooks, a law professor at Georgetown University, says the failure of these three officers to intervene are examples “of what psychologists call ‘the bystander effect,’ paralyzed by the powerful social forces that too often operate to prevent even decent people from taking action to halt abuses.” This was despite the two rookies having had instruction at the police academy about the dangers of using bodyweight to keep a suspect in a prone position for an extended period.”

Professor Brooks says “scores of studies” have provided “a fairly clear understanding of the factors that can lead ordinary people to do nothing even when morality seems to demand intervention. People are less likely to intervene when faced with ambiguous rather than clear situations . . . They’re less likely to intervene when surrounded by peers who are also doing nothing, or when intervention would require challenging those they perceive as having authority.” The professor also says that these studies indicate people are “less likely to intervene when they believe someone else will, or should, take action, or to help those whom they view as culturally different from themselves.”

These factors, she says, “appear to have been at play in the moments leading to Floyd’s death. Chauvin was the most experienced officer on the scene, and the less experienced officers deferred to his judgment; Chauvin was insistent  about keeping Floyd on the ground and indicated he was taking steps to keep Floyd alive, creating, for the other officers, a degree of ambiguity about whether  Chauvin’s actions were inappropriate. Each of the three officers could see that none of his colleagues was intervening to stop Chauvin, thus diffusing responsibility for any bad outcomes.”

Finally, Brooks claims “differences of class, race and culture might have allowed the officers to view Floyd as ‘other,’ rather than as someone they felt obligated to help.” This is a dubious contention regarding Lane and Kueng as both “had received instruction at the police academy about the dangers of using bodyweight to keep a suspect in a prone position for an extended period of time” and “both were perceived by their peers as caring, idealistic young officers. Kueng, one of just 80 Black officers in a department of 900, had joined the Minneapolis police because he hoped an increasingly diverse force would reduce police racism and aggression toward people of color. Lane, who tutored Somali children in his spare time, was known for his calmness and his ability to defuse tense situations.”

In any event, Professor Brooks argues that effective intervention to stop abuses is a skill that can be taught and learned. It also requires creating a culture encouraging intervention and practice. It also requires “redefining loyalty. Instead of defining loyalty as ‘letting your friends do whatever they want,’ loyalty was redefined as ‘helping your friends avoid potentially fatal mistakes.’”

If the MPD had had a more intensive intervention training program, one of the other three officers could “have pulled Chauvin off Floyd, saying, ‘I can’t let you do this. He’s going to get hurt, or worse, and you’re going to get fired, or worse. Let me handle this.”

All of this analysis by Professor Brooks seems contradicted by the lay bystanders at the site on May 25th—male and female, young and old, those with some experience with use of force and those without such experience, all not having intervention training. Nonetheless, they all persisted in urging the officers to stop holding Floyd on the pavement with Chauvin’s knee to his neck or back. They truly were courageous in so doing.

Permissible Neck Restraints.[7]

At the time of Floyd’s arrest, MPD policy allowed for two types of neck restraint. One was called “conscious neck restraint,” which permitted light pressure on the neck “without rendering unconsciousness” of an individual who was “actively resisting” arrest. The other type was an “unconscious neck restraint” allowing officers to use their arms or legs to knock out a person by pressing carotid arteries on either side of the neck, blocking blood flow to the brain for an individual “exhibiting active aggression.” This MPD policy also instructed officers, at the first possible opportunity to turn people on their sides once they are handcuffed  and under control to avoid “positional asphyxia in which breathing becomes labored in a prone position and an lead to death.

Preparing for Reactions to Possible Acquittal of Chauvin [8]

The jury’s verdict is still in the future, perhaps weeks away. Although this blogger, expects and hopes for a guilty verdict, the city and others need to plan for a possible acquittal.

Many people here (and elsewhere) continue to call for conviction. For example, on April 9, over 100 people attended the “We Can’t Sleep If We’re Not Safe From Police Violence” rally and march in downtown Minneapolis that was organized by the Minnesota Chapter of the Council on American-Islamic Relations, Communities United Against Police Brutality and Black Lives Matter Minnesota. Chants were heard—“Prosecute the police, no justice, no peace.”

The City of Minneapolis’ Office of Violence Prevention has entered into partnerships with seven community organizations to send volunteers into different parts of the City to connect people with social services, calm conflicts before they escalate into violence and pass along residents’ concerns to city officials. They, however, will not replace the police.

The Legal Rights Center, a nonprofit criminal defense law firm in Minneapolis, has been conducting weekly Zoom and Instagram discussions for the public about legal issues in the current trial .

The church near the site of the Floyd killing—Worldwide Outreach for Christ—has developed a ministry of reaching out to the young men, many of whom are gang members—who gather there to offer them free conversations and counseling to help them turn their lives around.

On the other hand, a City attorney advised the Minneapolis Civil Rghts Commission against preparing and disseminating statements about the current trial.

                                                Reforming Police Training and Practices

The most general question raised by the Chauvin trial is whether it will prompt  more general reform of police recruitment, training and practices in Minneapolis and the rest of the U.S. by state and federal governments.

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[1] Derek Chauvin Trial: Week Five, dwkcommentaries.com (April 10, 2021).

[2] Xiong, As defense prepares to call witnesses, question remains: Will Derek Chauvin testify?, StarTribune (April 10, 2021); Groves (AP), EXPLAINER: Could mask hamper ex-officer’s image with jurors?, StarTribune (April 7, 2021).

[3] See these posts to dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and  Four Ex-Officers in George Floyd’s Death (July 16, 2020); Family’s Complaint Against Four Ex-Police Officers Over His Death (July 17, 2020); Chauvin and Wife Now Charged with Minnesota Tax Crimes (July 22, 2020); State Court Rejects Chauvin Divorce Settlement (Nov. 20, 2020); Complications in Derek Chauvin Divorce Case (Jan. 20, 2021); Comment: Court Approves Redacted Chauvin Divorce Agreement (Feb. 4, 2021); Did Derek Chauvin Agree To Plead Guilty to Third-Degree Murder? (Feb. 11, 2021): Derek Chauvin Trial: Week One (Mar. 15, 2021).

[4] Jany, In interview with agents, Minneapolis chief Arradondo details ‘emotional’ discussions with officers before officers were fired hours after George Floyd’s death, StarTribune (April 7, 2021).

[5] Givhan, In trial testimony, Chauvin is cast beyond the blue wall, Wash. Post (April 6, 2021); Editorial, Opinion: The blue wall of silence has broken in the Chauvin trial, but that doesn’t absolve the police, Wash. Post (April 7, 2021); Crump & Romanucci [attorneys for Floyd family], Opinion: At Derek Chauvin’s trial, a dangerous code of silence is crumbling, Wash. Post (April 8, 2021); Salter(AP), ‘Blue wall of silence’ takes hit in Chauvin’s murder trial, StarTribune (April 9, 2021).

[6] Brooks, What About the Cops Who Watched George Floyd Die?, Politico (April 9, 2021).

[7] Tarm (AP), EXPLAINER: Was officer’s knee on Floyd’s neck authorized?, StarTribune (April 5, 2021).

[8] Jackson, More than 100 rally in downtown Minneapolis for police accountability, Star Tribune (April 9, 2021); Navratil, Minneapolis to boost community patrols during Derek Chauvin trial, StarTribune (April 9, 2021); Navratil, Minneapolis lawyers advise city-appointed task force on George Floyd to keep quiet for now, StarTribune (April 9, 2021); Du, Minneapolis criminal defense attorneys offer legal takes, healing spaces during Chauvin trial, StarTribune (April 9, 2021); Du, Church at 38th and Chicago reaches out to gang members nearby, StarTribune (April 9, 2021);

Derek Chauvin Trail: Week Five

The trial’s Week Five continued with testimony of 16 prosecution witnesses after Week Four’s opening statements and testimony from 19 prosecution witnesses.[1]  This summary of Week Five is based upon watching some of the livestreaming of the trial and reports in the Star Tribune, Washington Post, New York Times and Wall Street Journal that will be listed in a subsequent post while another subsequent post will cover commentaries about Week Five.

Prosecution Witnesses

20. Dr. Bradford Wankhede Langenfeld (Hennepin County Medical Center (HCMC)). As an emergency room physician, Dr. Langenfeld examined Mr. Floyd upon his arrival at HCMC in an emergency condition of cardiac arrest with a heartbeat not sufficient to sustain life.  This was a “PEA” state of pulseless electrical activity caused by low oxygen, which soon evolved into asystole or flatlining when electrical shocks to the heart cannot bring the patient to life. After being advised that no lifesaving means had been performed on Mr. Floyd by officers or bystanders at the scene before Chauvin took his knee off the man, but that paramedics in the ambulance had spent about 30 minutes in the ambulance trying to resuscitate Floyd, the doctor’s immediate goal was to try to re-establish “spontaneous circulation.” To that end, the doctor examined several possible causes of cardiac arrest and concluded that hypcoxia, or lack of oxygen to the body tissues, was the most likely cause. Soon thereafter, Dr. Lagenfeld pronounced Mr. Floyd’s death due to lack of oxygen or asphyxia.(On cross examination, the doctor agreed that lack of oxygen in the body could be caused by the presence of opioids fentanyl and methamphetamines, which the subsequent autopsy found present in Floyd’s body.) “At the time it was not completely possible to rule that out,” he said, “but I felt it was less likely based on the information available to us.” The doctor also said patients with cardiac arrest have a 10 to 15 percent decrease in chances of survival for every minute CPR is not administered.

21. Medaria Arradondo (Minneapolis Police Department (MPD) Chief of Police). Arradondo, who joined the MPD in 1989 and has been its Chief for the last three years, after reviewing his background and training, testified that around 9:00 p.m.on the evening of May 25, 2020, he was advised of this incident by telephone at his home.  After immediately notifying Minneapolis Mayor Jacob Frey and the Minnesota Bureau of Criminal Investigation, the Chief went to his office downtown. There he first saw the video (without audio) of the city-operated surveillance camera, which made it difficult to determine what had happened.

Around midnight at his office, a community member called and asked if he had seen the “video of your officer choking and killing a man at 38th and Chicago.” This was the video taken by Darnella Frazier (then 17 years old, )which the chief had not yet seen.

Soon thereafter, however, the Chief obtained and watched that video and immediately concluded that “the facial expression of Mr. Floyd . . . does not appear in any way, shape or form [to reflect] light to moderate pressure” as required by MPD policy. Moreover, “once there was no longer any resistance, and clearly Mr. Floyd was no longer responsive and even was motionless, to continue to apply that level of force to a person proned out, handcuffed behind [his] . . back, that in no way shape or form is anything that is policy, part of our training and is certainly not part of our ethics or values.” Chauvin also failed in his duty to render first aid before the ambulance arrived and to deescalate the situation with no or minimal force if they can.

The Chief added that the MPD moto is “to serve with compassion,” which means  that every police officer needs “to understand and authentically accept that we see our neighbors as ourselves, we value one another, we see our community as necessary to our existence.”  To that end, each officer signs a document that he or she knows the contents of the MPD policy manual, which says in part that an officer may not detain a suspect “longer than necessary, and the copy signed by Chauvin was shown to the jury.

“Once Mr. Floyd had stopped resisting — and certainly once he was in distress and trying to verbalize that — that should have stopped,” the chief said after spelling out department policy on when to use force vs. calming a situation through de-escalation tactics.

“There’s an initial reasonableness of trying to just get him under control in the first few seconds,” the chief continued, “but once there was no longer any resistance, and clearly when Mr. Floyd was no longer responsive and even motionless, to continue to apply that level of force to a person proned out, handcuffed behind their back, that in no way shape or form is anything that is by policy. It’s not part of our training and is certainly not part of our ethics or values.”

The next day,  the Chief publicly announced his decision immediately to fire Chauvin and the other three officers.

Under cross examination by defense attorney Eric Nelson, Arradondo acknowledged that officers sometimes need to take control of a situation. “Would you agree that the use of force is not an attractive notion?” Nelson asked. In response, the Chief said, “I would say the use of force is something that most officers would rather not use, and agreed that department policy affords an officer flexibility under evolving circumstances for when to use force or choose to de-escalate an encounter with someone resisting arrest.

22. Katie Blackwell. (MPD Fifth Precinct Inspector). At the time of the Floyd killing, she  headed up training for the department. Blackwell was shown a photo from the viral video of Chauvin on Floyd’s neck and was asked whether that is a tactic the police are taught.”I don’t know what kind of improvised position this is,” said Blackwell.

She inspected  records showing the  training that Chauvin had received in 2016 and 2018, which included situations when a suspect is detained facedown and handcuffed. That training stated that officers should be careful when holding a handcuffed person on their stomach because that position makes it difficult to breathe and that the person should be put “in the side recovery position or an upright position … as soon as possible,” or run the risk of asphyxiation.

23. Ker Yang (MPD  Sergeant). Asa MPD crisis intervention trainer, Yang testified that listening is key to crisis intervention. Voice, neutrality, respect and trust are at the core of the model on how an officer should approach a crisis situation. “It is useful [and] it is practical,” he said. “When it is safe and feasible, we shall de-escalate.”

Yang coordinates with civilian mental health professionals to train officers who encounter people in crisis situations, such as mental health issues. Yang discussed the best practices in dealing with people in crisis, or a situation “beyond a person’s coping mechanism. When it is beyond their control, they don’t know what to do.” That could also include people under the influence of drugs and alcohol or suffering from anxiety. In such situations, officers are trained to “bring them back down.” When it is safe and feasible, we shall de-escalate,” and the model for crisis intervention focuses on voice, neutrality, respect and trust. “It is useful, and it is practical.”

On cross-examination, Yang agreed that officers in these situations are taking in a lot of information and processing it simultaneously.

24. Johnny Mercil (MPD Lieutenant). He is a MPD use-of-force trainer experienced in the martial arts, and one of his trainees was Chauvin. He testified that at the time of the Floyd encounter, the MPD had two permitted neck restraints: to render a suspect unconscious to counter “active aggression” and to keep a suspect conscious when offering the lesser “active resistance.” He said. “You want to use the least amount of force necessary to meet your objective to control. If those lower uses of force do not work or are too unsafe to try, you can increase your level of force against that person.

Mercil also testified about “red zones,” where injury tends to range from serious to long lasting and could include serious bodily injury or death. Such areas included the head, neck and sternum, among others.

On cross examination, Mercil admitted that sometimes a suspect will make excuses like being unable to breathe or having a medical emergency to try to avoid going to jail. He also admitted that there were some photos with Chauvin’s knee on Floyd’s back, not his neck and these were not neck restraints and that hostile bystanders could raise an alarm with officers.

25. Nicole Mackenzie (MPD Medical Support Coordinator & First Aid Educator). She is responsible for CPR and other classes for officers. She said police have a responsibility to both call an ambulance and render aid “if it’s a critical situation.” She testified that being able to talk doesn’t mean you’re necessarily able to breathe. She testified that agonal breathing, or a brainstem reflex that causes gasping, could be misinterpreted as breathing. “Somebody could be in respiratory distress and still be able to verbalize it,” she said. “Just because they’re speaking doesn’t mean they’re breathing adequately.”

She also said cardiopulmonary resuscitation (CPR) can be started by officers while waiting for paramedics to arrive and that officers are trained to do so while waiting for an ambulance. Talking doesn’t contradict someone’s contention that they can’t breathe.

However, she also admitted that chaotic scenes can adversely affect an officer’s ability to provide aid. “If you’re trying to be heads down on a patient that you need to render aid to, it’s very difficult to focus on that patient while there’s other things around you. if you don’t feel safe around you, if you don’t have enough resources, it’s very difficult to focus on the one thing in front of you.” But in response to questions by the State’s attorney, she said a crowd of agitated onlookers could excuse an officer from rendering aid “only if they were physically getting themselves involved.”

26.  Jody Stiger (Sergeant, os Angeles Police Department and use-of-force expert for the State of Minnesota. He reviewed the MPD use-of-force materials and testified that Chauvin’s use of force against Floyd was “excessive.” Initially when Mr. Floyd was being placed in the backseat of the squad car, the officers were justified in trying to have him comply and sit in the backseat of the vehicle. However, once he was placed in the prone position on the ground, he slowly ceased his resistance and the officers . . should have slowed down or stopped their force.”

Stiger testified that his review of all the video evidence showed that Chauvin had applied pressure to Floyd’s neck or neck area for 9.5 minutes from the time the officers put him on the ground with his hands cuffed behind his back until after the paramedics arrived.

The videos show Floyd being placed on his chest in the prone position. Stiger noted that he saw Floyd one time “kicked the officers’ arms in an attempt to possibly break free from the officers’ grasp.” This led the police to reverse their decision to use a hobble device on Floyd , which Stiger attributed to the officers recognition that Floyd was starting to comply and cease resistance. And that compliance and non-resistance continued through the remainder of Floyd’s time on the ground until he was taken on a gurney to the ambulance. In so doing, Chauvin put Mr. Floyd at risk of positional asphyxia or deprivation of oxygen.

Stiger said body-worn camera video from one of the officers showed Chauvin using “his right hand and appeared to use a pain compliance on Mr. Floyd’s hand.” Chauvin appeared to accomplish this by “squeezing [Floyd’s] fingers or bringing his knuckles together, which can cause pain or pulling the hand into the cuff, which can cause pain as well.”  Stiger also pointed out that “the handcuffs [on Floyd] were not double-locked [and as a result] can continue to ratchet tighter as the person moved.”

When someone cannot comply, he said, “at that point, it’s just pain.” He also testified that placing a person prone on the ground runs the risk of positional asphyxiation, and placing weight on that person heightens the risk.

Stiger concluded by saying that while the three officers were on Floyd, he “was not actively resisting while he was in the prone position” and , therefore, the amount of force by the officers was excessive.

Moreover, “as time went on . . .in the video you can clearly see that Mr. Floyd’s health was deteriorating, his tone of voice was deteriorating, his movements are starting to cease. As a police officer you realize something is not right . . . [which means you have a] responsibility to take some action [to improve the person’s condition].” But when Floyd kept saying, “my neck hurts, my back hurts, everything hurts,” all Chauvin does is utter “uh huh” and say “if Floyd can talk, he can breathe.”

Stiger also said  the officers also should have considered the nature of the original alleged offense when weighing use of force. In Floyd’s case, that was the passing of an alleged  counterfeit $20 bill at Cup Foods. Typically, for low-level offenses like this, “you wouldn’t expect to use any force.”

Under cross-examination, Stiger admitted every time an officer responds to a call there is an inherent risk. The bystanders’’ comments, Stiger said, were “potential threats,” but did not justify use of force.

27. James Ryerson (Special Agent, BCA). He described the BCA’s extensive investigation of the case–taking photos of Chauvin, processing videos and other evidence, including the squad and Floyd’s cars along with items subsequently found inside the vehicles: a pill, some dollar bills, a pipe.

 He testified that Chauvin kept his weight on a handcuffed George Floyd’s neck for minutes after Floyd was no longer talking or moving during the incident.

Under cross examination, Reyerson testified that a short clip of Kueng’s body cam video footage appeared to show Floyd’s saying, “”I ate too many drugs.”  But on redirect questioning, a longer version of the video was shown, and Reyerson said. “Yes, I believe Mr. Floyd was saying, ‘I ain’t do no drugs.'”

28. McKenzie Anderson (Forensic Scientist, BCA). She processed both Floyd’s car and Squad Car 320. On the latter, she tested eight stains, seven of them blood, that tested positive for George Floyd’s DNA. In January 2021, she reprocessed the two cars at defense attorneys’ request and found in the squad car what appeared to be a pill and pill remnants: in the center console of Floyd’s car were two small white pills; on the driver’s side floor was a box for Suboxone (a prescription medicine for adults with an opioid addition);  and on the driver’s side seat was an unopened packet of that prescription. The DNA on one of these pills matched Floyd’s DNA.

29.  Breahna Giles, (Chemical Forensic Scientist, BCA). She testified that the pills found inside Floyd’s car contained methamphetamine and fentanyl, both addictive opioids. The partial pill and other traces of it tested positive for methamphetamine, while another substance was detected on the largest partial pill, Defense attorney Eric Nelson asked Giles if the trace substance was fentanyl. “I can’t confirm if it was or was not fentanyl. A glass pipe in Floyd’s car tested positive for THC, the active ingredient in marijuana.

30.  Susan Neith (Forensic Chemist at NMS labs in Pennsylvania). She tested the two pills found in the Floyd car and the partial pill found in the squad car. All three pills contained a fentanyl concentration of less than 1%, which she said is common. The pills contained a methamphetamine concentration of 1.9 to 2.9%, which she said was atypically low. “The majority of the time I see 90 to 100% methamphetamine,” she said.

31. Dr. Martin Tobin (Chicago physician specializing in respiratory and Critical care and Expert Witness).“Floyd died from a low level of oxygen [that] caused damage to his brain . . .  [and] arrhythmia [pulseless electrical activity] causing his heart to stop.”

The low level of oxygen was due to “shallow breathing, small breaths . .  that weren’t able to carry the air through his lungs down to the essential areas of the lungs that get oxygen into the blood and get rid of the carbon dioxide..” All of this was due to his being “turned prone on the street,. . .  [having] handcuffs in place combined with the street, . . . a knee on his neck, and . . . a knee to his back and side.” Using a composite video, Dr. Tobin ”showed jurors how Floyd was positioned with the officers on top of him and how it contributed to his inability to take sufficient breaths.” Chauvin and officer Kueng “manipulated Floyd’s handcuffs by ‘pushing them into his back  and pushing them high, further hindering his ability to breathe.”

Floyd stopped breathing 23 seconds later and “didn’t have an ounce of oxygen in his body” less than a minute after losing consciousness, Tobin said. He noted the moment Floyd died when shown the bystander video of his final moments. “At the beginning you can see he’s conscious, you can see slight flickering and then it disappears, so one second he’s alive and one second he’s no longer,” Tobin said. ” … That’s the moment the life goes out of his body.” Yet after Floyd’s breathing ceased, “Chauvin’s knee remained on Floyd’s neck for another three minutes and 27 seconds.

Dr.Tobin continued, “ It’s like the left side is in a vise, it is being pushed in from the street at the bottom and the way the handcuffs are manipulated . . . totally interfere with central features of how we breathe. . . . Basically , on the left side of his chest, it’s as if a surgeon almost went in and removed the lung . . . and left him totally reliant on his right side.” In addition, Floyd was bracing his knuckles to try to get air. This shows he has used up all his resources and . . . is trying to breathe with his fingers and knuckles. . . . He is using his fingers  and knuckles against the street to try to crank up his chest. This is the only way to [try] to get air into the right lung.” 

In addition, the knee on Floyd’s neck also restricted “air getting into the passageway.” It was like “trying to breathe through a space similar to a small straw.” Yet Dr. Tobin saw no reduction in Floyd’s ability to breathe before he went unconscious.

Journalists, watching the trial, said, “Jurors paid close attention to Dr. Tobin’s testimony from start to finish, watching every video, chart or illustration, listening closely to his testimony, and taking notes at specific points.”

32. Daniel Isenschmid (Forensic Toxicologist at NMS Labs in Pennsylvania and Expert Witness). He testified that while fentanyl was found in Floyd’s blood, so was norfentanyl, which is metabolized fentanyl. Overdose victims rarely have norfentanyl in their blood, he said. He testified that Floyd’s ratio of fentanyl to norfentanyl was 1.96 ng/ml,compared with  the average ratio of 9.05 in postmortem cases and 3.2 in driving-under-the-influence cases. Floyd’s level of methamphetamine, 19 ng/ml, was in the bottom 5.9% of a sample of DUI methamphetamine cases. “Does this show Mr. Floyd was below the average and even below the median in DUI cases?” prosecutor Erin Eldridge asked. “Yes,” Isenschmid responded.

33, Dr. Bill Smock (Police Surgeon, Louisville Police Department and Expert Witness). He reviewed videos from Floyd’s arrest and other case records and concluded that Floyd died from positional asphyxia (a lack of oxygen) and not from a fentanyl overdose, which usually involves people who are sleeping, who snore and who have constricted pupils and falling breathing rate, none of which Floyd exhibited. Smock said Floyd was not snoring, had dilated pupils, and was talking and saying “I can’t breathe.” “That is not a fentanyl overdose,” he said. “That is someone begging to breathe.”

Smock also testified that Floyd also showed no signs at the scene of a diagnosis called excitable delirium, which is a “physical and psychiatric state “ when patients show a high heart rate, seemingly “superhuman strength,” garbled speech and other symptoms,

He also addressed Floyd’s need for CPR, “way before it was used. As soon as Mr. Floyd was unconscious, he should have been rolled over. … When they can’t find a pulse, CPR should have been started.”

34.  Dr. Lindsey Thomas (Retired Medical Examiner, Hennepin County Medical Examiner’s Office and Expert Witness).

She testified that “the primary mechanism of Floyd’s death was asphyxia, or low oxygen” and that “the activities of law enforcement officers resulted in Mr. Floyd’s death, and specifically their activities of subdural restraint and neck compression.”

All of these videos show that  this was not “a sudden death,” Thomas testified. “It’s not like snow shoveling when someone clutches their chest and falls over. There was nothing sudden about his death.” Nor was there any evidence he suffered from a heart attack.

She later said with certainty, “There’s no evidence to suggest he would have died that night except for the interactions with law enforcement.”

She said that the sheer volume of videos of Floyd’s death was “absolutely unique” in that she’d never had a case so thoroughly documented, and it helped her determine how Floyd died.

Dr. Thomas also explained that autopsy reports like the one by Dr. Andrew Baker, whom she had trained, have several categories for causes of death, and she agrees with Baker’s (a) listing “homicide” as the cause, meaning it was death caused by another human being; (b) listing Floyd’s health challenges and drug use as valuable for public health purposes although not a direct cause of death; and (c) not listing asphyxia as there is no test for oxygen in an autopsy.

35. Dr. Andrew Baker (Chief Hennepin County Medical Examiner).  He performed Floyd’s autopsy and stood by his opinion that Floyd’s cause of death was a homicide, caused by “cardiopulmonary arrest complicating law enforcement subdural, restraint, and neck compression.” Baker did not include a lack of oxygen, or asphyxia.

According to Baker, Floyd  had “a very severe underlying heart disease,” i.e., hypertension heart disease,” meaning his heart weighed more than it should. So he has a heart that already needs more oxygen than a normal heart by virtue of its size and it’s limited in its ability to step up to provide more oxygen to meet demand because of the narrowing of his coronary arteries.”

These heart conditions meant Floyd needed more oxygen, while faced with the challenge of being stressed by being pinned to the street with his face scraping the asphalt.

Floyd’s “being held to the ground . . . [[increasing] pain . . . for having [his] cheek up against the asphalt and that abrasion on [his] shoulder . . . are going to cause stress hormones to pour out of your body, specifically things like adrenaline, and what that adrenaline is going to do is it’s going to ask your heart to beat faster,” Baker testified. “It’s going to ask your body for more oxygen so that you can get through that altercation, and in my opinion, the law enforcement subdural restraint and the neck compression was just more than Mr. Floyd could take by virtue of those heart conditions.

Floyd’s health problem and drug use were not “direct causes. They are contributing causes.”

Baker saw no bruises or scrapes on Floyd’s neck or signs of pressure on the back of his neck and agreed with defense counsel that the pressure on Floyd’s neck “would not constrict his airway.”

Baker chose not to look at the videos of the police encounter before he completed the autopsy so as not to bias his findings.

Baker admitted he is not an expert on lack of oxygen because he does not treat live people and would defer to experts on same.

According to Ted Sampsell-Jones, a law professor at Mitchell-Hamline School of Law, “evidence about Floyd’s cause of death is shaping up to be the biggest weakness for prosecutors.” But the prosecution for  the charges against Chauvin only has to prove that Chauvin’s conduct was a “substantial contributing cause” for the death.

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[1] See these posts fo dwkcommentaries.com: Derek Chauvin Trial: Week One (Mar. 15, 2021); Derek Chauvin Trial: Week Two (Mar. 21, 2021); Derek Chauvin Trial: Week Three (Mar. 24, 2021); Derek Chauvin Trial: Commendations and Thank You’s (Mar. 25, 2021); Derek Chauvin Trial: Its National and International Importance (Mar. 28, 2021); Derek Chauvin Trial: Week Four (April 2, 2021); Derek Chauvin Trial: Week Four (Commentaries) (April 5, 2021); Derek Chauvin Trial: Week Four (Sources) (April 6, 2021). See also List of Posts to dwkcommentaries—Topical: George Floyd Killing, dwkcommentaries.com.

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Derek Chauvin Trial: Week Four (Sources)

The summary of the Trial’s Week Four of opening statements and testimony of 19 prosecution witnesses was based upon the following reports in the StarTribune, Washington Post and New York Times. [1]

Star Tribune Articles

Xiong. George Floyd’s cause of death is heart of arguments in Chauvin trial (Mar. 29, 2021)

Rao, Jurors will consider George Floyd’s death, not the issue of race—in the Derek Chauvin trial (Mar. 29, 2021)

Karnowski & Forliti (AP), Jurors shown video at ex-officer’s trial in Floyd’s death (Mar. 29, 2021)

Walsh, Xiong & Olson, Witnesses, Derek Chauvin purposely shifted weight to add pressure on George Floyd’s neck, (Mar. 29, 2021)

Olson, Chauvin trial testimony begins with opening statements, three witnesses on first day (Mar. 30, 2021)

Norfleet, Jackson & Rao, Trauma relived as Derek Chauvin trial unfolds before the world (Mar. 30, 2021)

Editorial: Cameras build trust in Chauvin trial (Mar. 30, 3021)

Groves, EXPLAINER: Use of force experts evaluate Floyd arrest (Mar. 30, 2021)

Walsh, Xiong & Olson, In Derek Chauvin trial, off-duty firefighter tells of attempts to intervene: ‘There is a man being killed’ (Mar. 31, 2021)

Xiong, Walsh & Olson, Teen who recorded George Floyd’s death reveals trauma, pain in testifying (Mar. 31, 2021)

Karnowski & Forliti (AP), Witnesses: Onlooker anger increased as Floyd stopped moving (Mar. 31, 2021)

Glanton, Scenes from a trial over a horror we wish we didn’t have to dwell on (Mar. 31, 2021)

Salter, 2 views of Floyd onlookers: Desperate to help, or angry mob (Mar. 31, 2021)

Walsh, Derfek Chauvin trial witness overwhelmed with sorrow watching video of George Floyd’s arrest (Mar. 31, 2021)

Karnowski & Forliti (AP), Witnesses: Onlooker anger increased as Floyd stopped moving (Mar. 31, 2021)

Tarm, EXPLAINER: Video dominates trial in George Floyd’s death (Mar. 31, 2021)

Olson, Walsh & Xiong, Chauvin trial video reveals Floyd shopping for cigarettes, officer defending actions for first time (April 1, 2021)

Walsh & Sayle, What happened Tuesday in Derek Chauvin trial (April 1, 2021)

Boswell, Step by step, here’s how George Floyd’s fatal encounter with police unfolded (April 1, 2021)

Walsh, Olson & Xiong, Derek Chauvin’s supervisor testifies he wasn’t told immediately of knee on George Floyd’s neck or for how long (April 1, 2021)

Floyd’s girlfriend recalls their struggle with addiction (April 1, 2021)

Olson, Walsh & Xiong, Minneapolis homicide unit’s chief, force on George Floyd by Derek Chauvin was dangerous, ‘uncalled for’( April 2, 2021)

Olson, Walsh & Xiong, Chauvin didn’t immediately tell supervisor that he knelt on Floyd’s neck, or for how long (April 2, 2021)

Foley, EXPLAINER: How Chauvin trial has impacted its witnesses (April 2, 2021)

Jackson, Derek Chauvin trial shows people who saw police violence later struggle with trauma (April 2, 2021)

Karnowski, Forliti & Weber (AP), Lieutenant: Kneeling on Floyd’s neck ‘totally unnecessary’ (April 2, 2021)

Walsh & Sayle, What happened Friday in the Derek Chauvin trial (April 2, 2021)

Olson, Walsh & Xiong, Minneapolis homicide chief: force used on George Floyd by Derek Chauvin was dangerous, ‘uncalled for’ (April 2, 2021)

Groves, EXPLAINER: Analyzing use of force by police officers (April 2, 2021)

Walsh, Olson & Xiong, Minneapolis police lieutenant: Derek Chauvin’s knee on George Floyd ‘totally unnecessary’ (April 3, 2021)

Washington Post Articles

Reuters, Young Bystander Testifies in Derek Chauvin trial (Mar. 30, 2021)

Dewar, Charles McMillian, who say the police pin George Floyd, breaks down on the stand (Mar. 31, 2021)

Bella & Hauslohner, Senior officer rejects Chauvin’s ‘totally unnecessary’ use of force against George Floyd (April 2, 2021)

Bella, Zimmerman: Chauvin should not have kept knee on Floyd’s neck until paramedics arrived (April 2, 2021)

Hauslohner, Defense: Police can use ‘improvisation’ in use of force when lives are at stake (April 2, 2021)

Bella, Zimmerman rejects Chauvin’s use of force against Floyd: ‘totally unnecessary’ (April 2, 2021)

Hauslohner, Minneapolis Police Department senior officer: ‘We don’t want people to get hurt’ (April 2, 2021)

Hauslohner, Minneapolis Police Lt. Zimmerman, A knee on the neck is a ‘deadly force’ (April 2, 2021)

Bella, Officer testifies he responded to Cup Foods not knowing Chauvin was involved (April 2, 2021)

Bailey & Knowles, Derek Chauvin should not have knelt on George Floyd’s neck after he stopped resisting, former sergeant testifies (April 2, 2021)

Kornfield & Knowles, Former sergeant says Chauvin did not initially say he had his knee on Floyd’s neck (April 2, 2021)

Knowles, Policy requires rolling prone, restrained people into ‘recovery position,’ retired sergeant says (April 2, 2021)

Knowles. Fire captain says he understood off-duty firefighter’s distress after seeing ‘severity’ of Floyd’s condition (April 2, 2021)

Bella, ‘I was trying to give him a second chance at life,’ paramedic recalls (April 2, 2021)

Baranowski & Forliti (AP), Witnesses: onlookers anger increases as Floyd stopped moving (Mar. 30, 2021)

New York Times Articles

Bogel-Burroughs, What we learned from the opening statements (Mar. 29, 2021)

Bogel-Burroughs, A 911 dispatcher said officers pinned down George Floyd for so long she thought the camera had frozen (Mar. 29, 2021)

Wright, Takeaways from the first day of the Derek Chauvin trial (Mar. 29, 20210

Wright, Takeaways from the second day of the Derek Chauvin trial  (Mar. 30, 2021)

Bogel-Burroughs, An outspoken off-duty firefighter testified: ‘There was a man being killed’ (Mar. 30, 2021)

Fazio & Martinez, In the first signs of tension, Chauvin’s defense takes aim at a mixed martial artist who witnessed Floyd’s death (Mar. 30, 2021)

Bogel-Burroughs, Prosecutors say Derek Chauvin knelt on George Floyd for 9 minutes 29 seconds, longer than originally reported (Mar. 30, 2021)

Astor, ‘Don’t shoot me.’ Body camera video shows the fatal encounter between police officer and George Floyd (Mar. 31, 2021)

Wright, Takeaways from the third day of the Derek Chauvin trial (Mar. 31, 2021)

Wright, Scenes from Minneapolis on Day 4 of the Chauvin trial (April 1, 2021)

Fazio, Just tuning into Day 4 of the Derek Chauvin trial? Here’s what happened this morning (April 1, 2021)

Wright,Taeaways from Day 4 of the Derek Chauvin trial (April 1, 2021)

Bogel-Burroughs, Officers should have stopped restraining Floyd sooner, a former supervisor of Derek Chauvin’s testified (April 1, 2021)

Bogel-Burroughs, Lawyers for George Floyd’s family say jurors should look past his drug use after hearing testimony about his addiction (April 1, 2021)

Bogel-Burroughs, George Floyd’s girlfriend described their relationship, shared struggle with addiction, their first kiss, a ‘daddy selfie’ (April 1, 2021)

Bogel-Burroughs, George Floyd was dead by the time medical help arrived, a paramedic testified (April 1, 2021)

Fazio & Arango, What we know about Courtney Ross, George Floyd’s girlfriend (April 1, 2021)

Wright, Takeaways from Day 5 of the Derek Chauvin trial (April 2, 2021)

Bogel-Burroughs, ‘Totally unnecessary’: the longest-serving Minneapolis police officer says Chauvin violated police policy (April 2, 2021)

Walker & Astor, The officer who secured the crime scene after George Floyd’s death is the first witness on Day 5  (April 2, 2021)

=======================

[1] Derek Chauvin Trial: Week Four, dwkcommentaries.com (April 2, 2021).

Derek Chauvin Trial: Week Four (Commentaries)

Week Four, as summarized in a recent post, included opening statements by the prosecution and defense and the testimony of 19 prosecution witnesses. [1} Now we look at some of the published commentaries about those developments.

                                                            Washington Post’s Opinions [2]

The Washington Post published at least four opinion articles last week about the trial; two were editorials; the others by two of their columnists, Eugene Robinson and Radley Balko.

Editorial (March 29).This editorial started with noting that the first witness, a 911 dispatcher who watched the arrest in real time on a surveillance camera, testified, “My instincts were telling me that something’s wrong” and, therefore, reported the situation to a superior officer. “

“Her instincts — as the world knows from its own viewing of video footage of the May 25 events at that Minneapolis street corner — proved to be terrifyingly and tragically accurate. Something is clearly wrong when an arrest for allegedly passing a counterfeit $20 bill ends up with a 46-year-old Black man gasping for air, pleading for help — and dying.”

“We hope no jury can accept that a police officer would be trained to be so willing to cause harm and so indifferent to human suffering.”

Editorial (April 1). This editorial said, “it is painfully clear that Floyd was not the only victim that May day in Minneapolis. Those who were forced to stand by helplessly and watch as the 46-year-old Floyd died, gasping for breath, despite their desperate pleas to police, have been forever changed.”

“As is too often the case when police interact with minority communities, their response was not to listen, not to help, but to respond to an imagined, nonexistent threat. Indeed, Mr. Chauvin’s attorney even suggested that it was the bystanders who were responsible for Floyd’s death. The crowd was hostile and posed a threat, Eric Nelson told the court, and that diverted police’s attention from Floyd.”

Eugene Robinson’s Opinion. This article says the evidence shows how Derek Chauvin “saw his alleged victim: as a dangerous, ‘sizable’ Black man who had to be controlled, subdued and forced to submit. The message Chauvin sent with his actions wasn’t intended for Floyd alone, and it’s one Black Americans have heard for centuries.”

“Chauvin didn’t see Floyd as a citizen suspected of a minor, nonviolent crime or as the gentle ‘mama’s boy’ Floyd’s girlfriend, Courtney Ross, described. To Chauvin and the other officers, Floyd was guilty from the start — guilty of inhabiting an imposing Black male body, a circumstance that has always been a punishable offense in this country. “

“Attempts by Chauvin’s defense attorney, Eric Nelson, to paint the onlookers who watched Floyd’s killing in horror as some kind of angry mob are laughable. Surveillance video played in court shows that the number of witnesses could be more accurately described as ‘a handful” ‘than as ‘a crowd.’ They were White and Black, male and female, very young and old. They invariably complied when the officers told them to back up and remain on the sidewalk. They have testified that their voices became progressively louder and more urgent, and the insults they directed at Chauvin more pointed, only because they saw Floyd’s condition deteriorating and feared they were watching a man being killed before their eyes.”

“When I see that look Chauvin gave the onlookers, I see more than heartlessness. I see arrogance and superiority. I see him teaching an old lesson about who has power and who does not, about whom the law protects and whom it doesn’t. I see Chauvin demonstrating that he, not Floyd, got to decide whether Floyd was allowed to breathe.”

Radley Balko’s  Opinion. The article opens with “atypical facts”  about this trial: up to 95 percent of criminal cases are resolved with a plea bargain without a trial; about 80 percent of criminal defendants cannot afford to hire a defense lawyer like Erik Nelson; and most police officers are not prosecuted for excessive force or even disciplined for same; many jury verdicts, when there are trials, often turn on factors other than the evidence.

An acquittal for Derek Chauvin, should that happen, “would add only to the largely accurate perception that the powerful and protected get access to a different sort of justice than everyone else. Race looms large in all of this as well. An acquittal will only further ingrain in Black Americans the notion — backed by plenty of evidence — that the system doesn’t value their lives and rights as much as those of White Americans. The verdict also will of course matter immensely to Floyd’s family, friends and supporters. And I don’t mean to diminish how important it is that those victimized by police abuse feel that the justice system represents them, too.”

But a conviction of Chauvin “won’t stop bad cops from continuing to abuse their power with impunity. It won’t stop police from disproportionately stopping, searching and subjecting Black people to force. It won’t reduce fatal police shootings. And it won’t give poor people better access to justice. A guilty verdict might deter police from using the tactic Chauvin used on Floyd, at least for a while, but it’s unlikely to deter other instances of excessive force or abusive behavior.”

Nevertheless, Balko concludes, “Chauvin’s trial matters in the way any trial matters — it demands a verdict driven by evidence, fairness and equal application of the law. But the legacy of Floyd’s death is already written. It effected, and continues to effect, substantive and tangible changes that make this a fairer, more just country. An acquittal can’t unravel that, and it doesn’t need to be validated with a conviction.”

                                                         Wall Street Journal’s Opinion [3]

The Wall Street Journal’s Jacob Gershman thinks the prosecution’s use of raw video of the scene on May 25, 2020, leading to the death of George Floyd was very effective as was the testimony of eyewitnesses, several of whom “struggled to contain their nerves and tears as they described watching Mr. Floyd cry out for help until slipping out of consciousness while Mr. Chauvin, then a patrol officer, kept his knee against his neck. Gershman  supports this assessment with the following quotation from Cheryl Bader, a criminal law professor at Fordham University and former federal prosecutor, “We’ve had some very emotional testimony. The judge has allowed witnesses to talk about how they felt, and talk about the raw experience they had and their guilt over this death. That was particularly powerful.”

Indeed, says Gershman, “the bystander testimony has helped prosecutors portray Mr. Chauvin as indifferent to Mr. Floyd’s suffering and aware of the danger of the restraint he was using, legal observers said.” One of those observers, Christopher Slobogin, a criminal law professor at Vanderbilt University, said, “It’s hard to argue that Chauvin was unaware of the risk he was causing when people were telling him about the risk he was causing.”

Defense attorney Erik Nelson attempted “to draw out evidence that the crowd of onlookers surrounding Mr. Chauvin and other officers grew menacing,” but these attempts  “were less successful, according to trial experts.”

Gershman concluded his article by referencing the testimony of Chauvin’s former supervisor, David Pleoger, for his opinion as to when the restraint of Mr. Floyd should have ended, “When Mr. Floyd was no longer offering up any resistance to the officers, they could have ended their restraint.”

New York Times’ Opinion [4]

Frank Bruni, a New York Times columnist, said, “Floyd felt helpless once police officers descended on him. What he’d experienced and observed in his life to that point convinced him that the odds were stacked against him and that he was in danger. “Please don’t shoot me,” he begged when they ordered him out of his car. The fear in his voice — heard on video played in the courtroom — was real.”

Witnesses to this horror also “felt helpless as Derek Chauvin, the former officer now on trial, knelt on Floyd’s neck for minute after unconscionable minute. Chauvin was in uniform. He was the law. Can you actually call the police on the police? It’s like some rhetorical riddle, signaling a world out of whack. Three witnesses actually did call the police on the police, but it was too late.”

Moreover, Bruni’s  listening “to witnesses’ testimony, which was often punctuated with tears, I got the sense that some of them felt helpless not only to stop what was being done to George Floyd but also to affect the larger forces that conspired in his death and trap so many Black Americans like him in a place of great vulnerability and pain.” Indeed, these eyewitnesses are “not so much haunted as tormented by their memories of Floyd’s last minutes. [Charles] McMillian possibly articulated one of the reason with the words he squeezed out through sobs, ‘Oh my God. I couldn’t help but feel helpless.’”

Another witness, George Floyd’s girlfriend, Courtney Ross, “reminded anyone paying close attention . . .that Floyd . . . was also a man: loving, loved, strong, weak, with virtues, with vices.”

As a result, “Chauvin’s inhumanity is indisputable, and the depth of the mark that it left on the people who intersected with it has been heartbreaking to behold. What happened near the corner of 38th Street and Chicago Avenue on May 25, 2020, was a chilling lesson in power and powerlessness. It both validated and stoked their fears.”

Conclusion

The bystanders who testified accurately described what was happening. Chauvin was continuing to apply knee pressure to Mr. Floyd’s neck when he obviously knew or should have known that Floyd was in great, ever increasing distress.

The notion that Chauvin and the other three officers were frightened by the unarmed group of young and old, White and Black bystanders is laughable.

Eugene Robinson, I believe, was correct when he observed that Chauvin’s face during this encounter  shows his sense of “arrogance and superiority” and his silently saying that a “large” Black man like Mr. Floyd was not entitled to respect, but instead was someone who had to be controlled, subdued and forced to submit.

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[1] See these posts to dwkcommentaries.com: Derek Chauvin Trial: Week One (Mar. 15, 2021); Derek Chauvin Trial: Week Two (Mar. 21, 2021);Derek Chauvin Trial: Week Three (Mar. 24, 2021); Derek Chauvin Trial: Week Four (April  2, 2021); Derek Chauvin Trial: Important Commendations and Thank You’s ((Mar. 25, 2021); Derek Chauvin Trial: Its National and International Importance (Mar. 28, 2021). See also List of Posts to dwkcommentaries—Topical: Killing of George Floyd. A subsequent post will list the sources for details of the trial’s fourth week.

[2] Editorial, Opinion: No jury should accept that Derek Chauvin was doing what he was trained to do, Wash. Post (Mar. 29, 2021); Editorial, Opinion: It is painfully clear that George Floyd wasn’t the only victim in his killing, Wash. Post (April 1, 2021); Robinson, Black Americans got Derek Chauvin’s message loud and clear, Wash. Post (April 1, 2021); Balko, Opinion: Don’t read too much into the outcome of Derek Chauvin’s trial,  Wash Post (April 1, 2021).

[3] Gershman, In Chauvin Trial’s fourth Week, Prosecutors Lean on Raw Video, Emotional Testimony, W.S.J. (April 2, 2021).

[4] Bruni, Listening to Those Who Saw George Floyd Die, N,Y, Times (April 3, 2021).

Derek Chauvin Trial: Week Four

This week (March 29—April 2) marked the actual commencement of the trial with a seated jury of 14 listening to the opening statements of attorneys for the prosecution and defense and then their examination and cross-examination of witnesses for the prosecution and seeing and hearing about exhibits. Here is a summary of Week Four based primarily upon the reporting of the StarTribune. [1]

Opening Statements

Prosecutor Jerry Blackwell with extensive use of videos walked the jurors through the May 25, 2020, arrest and death of George Floyd at 38th Street and Chicago Avenue in south Minneapolis. According to Blackwell, the jurors “will learn that on May 25, 2020, Mr. Derek Chauvin betrayed . . . [his police] badge when he used “excessive and unreasonable force” upon the body of Mr. George Floyd, that by putting “his knee upon Floyd’s neck and back, grinding and crushing him until the very breath, no, ladies and gentlemen, until the very life was squeezed out of him.” Moreover, Chauvin had his knee on Floyd’s neck for 9 minutes and 29 seconds. That is the key number: 9:29.

Blackwell emphasized that Floyd for the first minutes of this restraint “kept saying he couldn’t breathe, calling for his mother, writhing and falling silent as an increasingly agitated group of onlookers yelled at Chauvin to ‘check his pulse.’ Despite the pleas, Chauvin “does not let up, does not get up.” 

All of this unnecessary force was because Floyd allegedly had used a counterfeit $20 bill to buy a package of cigarettes at Cup Foods, without any evidence  evidence Floyd knew it was counterfeit and which could have been handled by the police giving George a ticket.

Defense Attorney Erik Nelson emphasized the concept of reasonable doubt and urged the jurors to use common sense and reason as they heard the evidence of how Chauvin and two other officers struggled to control Floyd. “You will learn that Derek Chauvin did exactly what he was trained to do over the course of his 19-year career. The use of force is not attractive, but it is a necessary component to policing. . . .What this case is ultimately about: It’s about the evidence … It is nothing more than that. There is no social or political issue in this courtroom.”

Witnesses Testimony

1. Jena Scurry, the 911 dispatcher who handled the call that resulted in Chauvin and the other officers responding to the intersection where Floyd allegedly had used a counterfeit $20 bill at Cup Foods. She detailed how she was troubled by seeing on wall-mounted dispatch screens how Floyd’s arrest played out on city surveillance cameras. She said she glanced up at the screens and saw a police squad moving “back and forth” as officers dealt with Floyd, then moments later took him to the pavement. Multiple times she looked away and then back to see the same image of the officers keeping Floyd on the pavement. It was then she sensed that “something was not right. It was an extended period of time,” She said. “It was a gut instinct, now we can be concerned.” Scurry said she called a supervisory sergeant and reported what she saw. “I don’t know, you can call me a snitch if you want to but we have the cameras up for [squad] 320’s call, and … I don’t know if they had to use force or not, but they got something out of the back of the squad, and all of them sat on this man, so I don’t know if they needed you or not, but they haven’t said anything to me yet,” the dispatcher is heard by the jury saying in her call to the sergeant.

2. Alisha Oyler, an employee of the Speedway service station across the street from Cup Foods, on May 25, 2020, observed the police restraint of Floyd and recorded a portion of same on her cellphone.She testified that she made the videos because “police is always messing with people … and it’s not right.”

3. Donald Willians II., a security professional and a professional wrestler and mixed martial arts fighter, was on his way to buy some things at Cup Foods on May 25, 2020, when he happened to observe the three police officers pinning George Floyd to the pavement near a squad car. Williams pleaded with the officers to check Floyd’s pulse and to ease up on their pressure on his neck and back as he heard Floyd gasp and plead for air. Williams said Chauvin was using a “blood choke” hold, which compresses arteries or veins in the neck, and making Floyd sound like a fish gasping for air. Williams also observed what he called a “shimmy,” an intentional repositioning by Chauvin to tighten his hold and leverage on Floyd’s neck.

In cross-examination, Erik Nelson pressed Williams about his growing more angry and threatening the officers at the time. Williams explained he became irate because the officers “were not listening to anything I was telling him. I felt like I had to speak out for Floyd.” He also explained why he called 911 that night: “I called the police on the police…because I believe I witnessed a murder.”

4. Darnella Frazier, the teenager, now 18, filmed the video seen worldwide of Floyd’s death outside Cup Foods. “When I look at George Floyd I look at my dad, I look at my brothers, I look at my cousins, my uncles because they are all Black,” she said. “I have a Black father, I have Black brothers, I have Black friends. I look at them and how it could have been one of them. It’s been nights I’ve stayed up apologizing to George Floyd for not doing more and not physically interacting and not saving his life, it’s not what I should have done it’s what he [Chauvin] should have done.” 

Nelson was brief in his cross-examination, crafting his questions to set the scene as becoming increasingly hostile to the point of creating a potential threat to the officers. Frazier agreed with Nelson that bystanders were getting louder and angrier, but she added that she didn’t think anyone was ever threatening to Chauvin.

5. Judeah Reynolds, the 9-year-old cousin to Frazier also witnessed Floyd pleading for his life. “I was sad and kind of mad and it felt like it was stopping his breathing and it was hurting him,” she said. Defense attorney Eric Nelson did not cross-examination the girl, who was then excused.

6. Alyssa Funari, who was 17 at the time she witnessed Floyd’s death and began recording with her cell phone. Her previously unseen footage was played in court. “It was difficult because I felt like there wasn’t really anything I could do,” she said. “As a bystander I was powerless there, and I was failing to do anything.”

7. Kaylynn Gilbert was also 17 when she arrived at Cup Foods with Funari. She said she had a “gut feeling” that something was wrong. “I saw [Chauvi}) digging his knee into [Floyd’s] neck more. He was putting a lot of pressure into his neck that was not needed.”

8. Genevieve Hansen, age 27, was a Minneapolis firefighter who was off-duty when she encountered the scene and attempted to render aid to Floyd, but was rebuffed by Chauvin and the other officers. There is a man being killed, and I would have been able to provide medical attention to the best of my abilities, and this human was not provided that right,” she said. Hansen testified that Chauvin appeared “very comfortable with the majority of his weight balanced on top of Mr. Floyd” while pinning him to the pavement with his knee.

In his cross examination of Hansen, defense attorney Eric Nelson raised potential inconsistencies in her testimony compared to previous statements to investigators, such as whether Chauvin had one hand in his pocket, or whether or not she had described the bystanders as comprising a “heavy crowd.” He also reminded Hansen that she earlier had described Floyd as a small man, despite his being roughly 6 feet 3 inches tall and weighing well more than 200 pounds.

He asked her whether she ever had a citizen yell at her or tell her she was doing her job wrong while fighting a fire. She repeatedly said that it would not faze her, because she is confident in her training. After exchanges with Nelson that grew testy at times, Judge Peter Cahill dismissed the jury for the day and admonished Hansen not to argue, and that it is Nelson’s job to ask her questions.

9. Christopher Martin, age 19, was the Cup Foods clerk who sold Floyd a pack of cigarettes and suspected the $20 bill Floyd used was counterfeit. After he attempted twice to get Floyd back in the store, his manager summoned the police. Martin was seen in exterior store video footage pacing about near the arrest scene and clasping his hands atop his head. Martin said he was feeling “disbelief and guilt.” Why? “If I would have just not taken the bill, this could have been avoided.”

The clerk said that when he first saw the bill, “I noticed it had a blue pigment to it, kind of like a $100 bill would have, so I found that kind of odd and assumed it was fake.” Martin said store policy meant he would have to pay for any counterfeit currency he or his co-workers accepted. “I took it anyway and was willing to put it on my tab, and then I second guessed myself,” he said.

10. Christopher Belfrey, 45, was with his fiancée and picking up something to eat from Cup Foods that night, when he parked behind Floyd’s SUV. He began recording a video with his phone when he saw Office Thomas Lane point a gun at Floyd and pull him out of the vehicle. Belfrey then moved his car across the street to avoid “commotion” and resumed recording as the officers sat Floyd on the pavement and questioned him. “It startled me when I seen the officer raise his gun, I started recording.”

11. Charles McMillian, 61, was the first witness on the scene after officers escorted Floyd from across the street, then struggled to get him into their squad car. McMillian initially encouraged Floyd to cooperate because once in handcuffs “you can’t win,” he testified. McMillian cried on the stand as he described feeling “helpless.” He confronted Chauvin after Floyd was taken away in an ambulance. “I think I said to him, ‘Five days ago I told you at the end of the day go home to your family safe, and that the next person go home to their family safe, but today I gotta look at you as a maggot.’”

12. Lt. James Rugel, head of the Minneapolis Police Department’s Business Technology Unit, was on the stand while the state played body camera videos from officers Thomas Lane, J. Alexander Kueng, Tou Thao and Chauvin.

13. Courteney Ross. George Floyd’s girlfriend for three years before his death, she emotionally described meeting him for the first time at the Salvation Army Harbor Lights Minneapolis shelter where he was a security guard. Thereafter they started dating and developed a relationship They both suffered chronic pain and had prescriptions and became addicted with opioids and occasionally obtained drugs off the street. She said Floyd typically used oxycodone and obtained them through other people’s prescriptions to ensure that they were safe. Shortly before Floyd’s death, they ha taken a pill that acted more as a stimulant, Ross said. “Both Floyd and I, our story is a classic story is of how we both get addicted to opioids,” she testified. “We got addicted and tried really hard to break that addiction many times.” The defense has contended that illicit drug use played a role in Floyd dying and not anything Chauvin did to him on May 25.

14. Seth Bravinder, a Hennepin EMS paramedic who responded with his partner to a call for medical assistance at 38th and Chicago on May 25th, 2020, where George Floyd lay unconscious pinned beneath the three officers. Bravinder said “there were multiple officers on top of the patient, . . . I assumed there was potentially some struggle still [going on] because they were still on top of him.”

Bravinder and his partner loaded Floyd into the ambulance and began working on him. He said full cardiac arrest is “not a good sign for successful resuscitation. Basically, just because your heart isn’t doing anything at that moment, it’s not pumping blood. It’s not a good sign for a good outcome.”

Defense attorney Eric Nelson’s questions addressed in part the gathering crowd at 38th and Chicago and noted that Floyd was moved quickly in the ambulance to a different location before continuing on to HCMC. The defense earlier in the trial has touched on how bystanders might have created an atmosphere that was potentially threatening to the officers at the scene.

15.Derek Smith, a Hennepin EMS paramedic and partner to Bravinder, upon arrival at the scene, checked Floyd’s pulse and immediately noted there was no pulse and Floyd’s pupils were dilated. “I looked to my partner, I told him ‘I think he’s dead, and I want to move him out of here and begin care in the back [of their ambulance]. Smith also noted the agitated crowd of bystanders. However, thee two paramedics continued to work on Floyd in the ambulance, including directing Officer Thomas Lane, who joined them in the ambulance, to deliver chest compressions while they attempted various lifesaving attempts en route to HCMC. Smith said Floyd never regained a pulse, but they continued attempting to save him. “He’s a human,” Smith said. “I was trying to give him a second chance at life.”

16.Capt. Jeremy Norton, a Minneapolis Fire captain who responded to 38th and Chicago after Floyd had been lifted into the ambulance. NortonHe testified that he encountered an “agitated to distraught” off-duty firefighter Genevieve Hansen and other bystanders. In the ambulance the ambulance Floyd was “an unresponsive body on a cot.” Afterward, he called his supervisors to report what happened. “I was worried that a man had been killed in police custody…and then I also wanted to notify my supervisor that there was an off-duty firefighter that was a witness at the scene.”

17. David Pleoger, a retired Minneapolis police sergeant in the Third Precinct, but in May 2020 was the supervisor to Chauvin and the other three officers the night of Floyd’s death. He fielded concerns through a 911 dispatch on May 25 about possible excessive use of force by these officers while detaining Floyd. He then headed to the scene while questioning Chauvin by phone on what had happened, but Chauvin did not mention that he had placed his knee on Floyd’s neck. The officer said Floyd was going “crazy [and] wouldn’t go in the back of the squad.”

Later that night Chauvin did disclose that he had used his knee to hold down Floyd, but did not say for how long, The sergeant after his subsequent review of the officers’ body-worn camera videos said the officers could have, and should have, ceased their restraint.

18. Lt. Jon Edwards. The head of the Third Precinct, Edwards wss on duty for the overnight shift on May 25th when he was summoned to secure the scene at 38th and Chicago  after Floyd had been taken to HCMC. Officers Lane and Kueng were still there in their squad car, and Edwards had them turn off their body cameras and leave the car so that it could be secured. Edwards then tried to interview witnesses, but the only one still there (McMillian) refused to give his name or respond to questions.

19. Lt. Richard Zimmerman, a 36-year veteran of the Department and in May 2020 the head of the Homicide unit, testified that after he had seen the body camera footages of the four officers, he had concluded that it was “totally unnecessary” for Chauvin to put his knee on the handcuffed Floyd. Pulling him face down to the pavement and placing his knee to his neck for that length of time was uncalled for. “I see no reason why this officer felt they were in danger.”

On cross-examination by Erik Nelson, Zimmerman admitted that as an administrator he rarely has to use force, that police situations can be fluid and that officers must quickly adapt to what is called “scene security.”

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[1] A subsequent comment to this post will list the articles about this week in the StarTrbiune, the Washington Post and the New York Times. The first three weeks of the trial were devoted to the attorneys examination of potential  jurors and Judge Peter Cahill’s resolving various issues. (See these posts to dwkcommentareis.com: Derek Chauvin Trial: Week One (Mar.15, 2021); Derek Chauvin Trial: Week Two (Mar.21, 2021); Derek Chauvin Trial: Week Three (Mar. 24, 2021). See also List of Posts to dwkcommentareis—Topical: The Killing of George Floyd, dwkcommentareis.com.

Derek Chauvin Trial: Its National and International Importance

With the completion of the selection of jurors for the criminal trial of Derek Chauvin for the death of George Floyd [1], commentators are reminding everyone of the trial’s importance, nationally and internationally [2] Here are some of those comments.

Paul Butler, a a former federal prosecutor and now a professor of criminal law and race relations at Georgetown University Law Center, says the trial “in terms of public consciousness . . . is all about race.” Indeed, race “will almost certainly shape how the jury perceives testimony and evidence in the case and ultimately the deliberations and verdict—in part because of the surprising diversity of the jury itself.”

Two StarTribune reporters (Ferguson and Rau) say that “George Floyd pleading for his life under the knee of a Minneapolis police officer has become a defining moment of our time [and] an American reckoning on justice, racial equity, the proper role of law enforcement and the historical wrongs society has perpetrated on Black people.” Therefore, this case “will be viewed as another chapter—perhaps turning point—in American racial history.” To support these conclusions they cite the following statements by noted commentators:

  • Keith Mayes, a Black man and associate professor at the University of Minnesota Department of African American and African Studies, believes “conviction [of Chauvin] is necessary for us to reimagine what a future can look like, because these cases continue to happen until the police are thoroughly reformed.”
  • Brenda Stevenson, a professor of history and African-American studies at UCLA, asserts that the Chauvin case “has become a global indictment of police forces. This is now representative of what happens everywhere—at least, that is what many people believe—people are really starting to see if the U.S. can get it right this time.”
  • Martin Luther King, III believes the import of this trial “cannot be overstated. An acquittal will mean criminal justice system must be rethought. It may set a tone for how people perceive whether justice can be achieved, specifically for Black people.”

A recent decision by Judge Peter Cahill allowing limited evidence of Mr. Floyd’s 2019 encounter with the Minneapolis police when he was not charged with any crime worries Paul Butler, the Albert Brick Professor of Law at Georgetown University Law Center. That limited evidence will concern two subjects: drugs that only recently were discovered in Floyd’s car from 2019  and Floyd’s telling a paramedic at the 2019 encounter that he had taken such pills earlier that day and one during this episode. These points may lead to a defense argument that Floyd was “a violent and reckless dope fiend.”

Such a defense argument, in my opinion, should backfire. First, in May of 2020 Chauvin had no knowledge about Floyd’s prior encounter. Second and more importantly Mr.Floyd, while being pinned down by Chauvin in May 2020, by his cries and behavior, gave notice that he had serious underlying physical and medical issues that were perceived by bystanders and ex-officers Thomas Lane and J. Alexander Kueng when they called for Chauvin to release Floyd. 

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[1] See these posts to dwkcommentaries: Derek Chauvin Trial: Week One (Mar. 15, 2021); Derek Chauvin Trial: Week Two (Mar. 21, 2021); Derek Chauvin Trial: Week Three (Mar. 24, 2021); Derek Chauvin Trial: Commendations and Thank You’s (Mar. 25, 2021). See also List of Posts to dwkcommentaries—Topical: The Killing of George Floyd, dwkcommentareis.com.

[2] Butler, Opinion: This new ruling could let the suspect in George Floyd’s killing go free, Wash. Post (Mar. 26, 2021); Bailey, What Derek Chauvin’s trial for the death of George Floyd means for America, Wash. Post (Mar. 27, 2021); Ferguson & Rao, Derek Chauvin trial represents a defining moment in America’s racial history, StarTribune (Mar. 28, 2021); Tarm & Forliti (AP), Jurors in ex-officer’s high profile trial face heavy burden, StarTribune (Mar. 28, 2021).

Derek Chauvin Trial: Initial Commendations and Thank You’s

The first three weeks of the Chauvin trial focused on jury selection with opening statements scheduled for March 29th. These three weeks also prompt the following initial commendations and expressions of gratitude. [1]

Hennepin County District Court Judge Peter Cahill [2]

This judge as the chief architect of this performance has demonstrated rectitude, wisdom and patience with obvious awareness of the importance of the case for the State of Minnesota, the United States of America, the rest of the world and the issue of racial justice. Thus, he decided to use the rarely used technique of sending a lengthy questionnaire to the large pool of prospective jurors to aid in their selection.

Judge Cahill also recognized the challenges of COVID-19 and potential protests by deciding to live stream the trial, require face masks and social distancing, having plexiglass partitions erected in the courtroom and limiting the number of spectators in the courtroom. In addition, he decided to grant special access to the many members of the media who are interested in the trial.

The Judge also had the wisdom during these three weeks to reinstate the third-degree murder charge and thereby correct his previous failure to follow a Minnesota Court of Appeals decision on this issue. In addition, the Judge patiently dealt with the challenges for this trial of the City of Minneapolis’ surprise announcement of its $27 million settlement of the civil case for money damages by the Floyd family in federal court.

Thank you, Judge Cahill!

Judge  Cahill’s Staff and Court Personnel

Obviously Judge Cahill could not have devoted virtually all of his time these past three weeks (and significant time since the start of the Chauvin case (and the repeated cases against three of  the latter’s colleagues) last June without the assistance of his law clerks, secretaries and others. 

Nor could the Judge have made the arrangements for courtroom security, including live streaming, without the assistance of other court personnel.

Thank you, personnel serving Judge Cahill’s and the District Court!

Prosecutors [3]

Stephen Schleicher is a pro bono Minnesota Special Assistant General with important responsibility for the in-court prosecution of Chauvin. Steve is a former federal prosecutor and a Partner and Co-Chair of the Government and Internal Investigation Group at the Minneapolis law firm of Maslon LLP, which has at least 100 other lawyers. His B.A. cum laude is from the University of Minnesota Duluth, and his J.D. cum laude in 1995  from William Mitchell College of Law. I have seen him briefly on the live streaming of jury selection in the Chauvin case, and he was relaxed, casual and warm in his questioning. Entirely appropriate.

Another pro bono Special Assistant Attorney General is Jerry Blackwell, who may give the opening statement on Monday. He is a prominent Minneapolis trial lawyer on complex corporate litigation who last year obtained a posthumous pardon for a Black man wrongfully convicted of rape in 1920 before the notorious lynchings in Duluth. A Black man, Blackwell is the founding partner, CEO and Chairman of another Minneapolis law firm, Blackwell & Burke P.A., which proclaims that its lawyers are “true players in the Fortune 500 legal market.” (The other founding partner was Martin “Skip” Burke, who previously was one of my partners at the Faegre & Benson law firm.)

Also on board are Minnesota Attorney General Keith Ellison and his Office of over 120 attorneys with Assistant Attorney General Matthew Frank expected to play a major role at the trial. The Hennepin County Attorney’s Office of 460 employees. is also part of the prosecution team. 

Another pro bono Minnesota Special Assistant Attorney General for this case, who occasionally argues important legal issues in this case, is Neal Katyal, a former Principal Deputy Solicitor General of the U.S. who has argued over 40 cases in the U.S. Supreme Court. He is a partner in the Washington, D.C. co-headquarters of the international law firm of Hogan Lovells with 2,400 attorneys in 55 offices around the world. In addition, he frequently comments on legal issues on MSNBC. His B.A. degree is from Dartmouth College. His J.D. from Yale Law School, 1995.

Thank you, Steve Schleicher, Jerry Blackwell, Neal Katya and the other attorneys for the prosecution!

Erik Nelson [4]

Mr. Nelson is the lead attorney for Chauvin. He holds a B.A. degree from Eastern University in Pennsylvania and is J.D. in 2000 from St. Paul’s Hamline University School of Law. He is a partner and one of 10 attorneys at the Halberg Criminal Defense firm in Minneapolis.

I have seen him more frequently in my tuning in to the live streaming of the jury selection. He too has a relaxed, casual and warm manner of questioning the potential jurors, frequently referring to the individual’s responses to the questionnaire. He introduces the jurors to his client, Chauvin, who is dressed in suit, dress shirt and necktie, which helps to humanize him, rather than the policeman who held Mr. Floyd on the pavement.

Since Nelson is only one of 10 lawyers in his law firm, I was concerned whether he had enough people to help him on this long and complicated case, but he has other legal support: consultations with the three other law firms representing Chauvin’s co-defendants; and eight other attorneys who work with the Minnesota Police and Peace Officers Association (MPPO). 

Thank you, Erik Nelson!

The Media

The killing of George Floyd in May 2020 and the subsequent four criminal cases against Chauvin and three other Minneapolis ex-policemen have been consistently, fairly and thoroughly covered by Minneapolis’s major newspaper, The StarTribune. In addition, similar coverage also frequently appears in The New York Times, Washington Post, Wall Street Journal, the Associated Press and The Guardian (from London).

Thank you, Media for your coverage!

The Potential and Selected Jurors

Over 300 residents of Hennepin County filled out and returned the court’s lengthy questionnaire about various issues related to the case and over 100 came to the court to be questioned by the Judge and attorneys about their opinions regarding the case. And many of them said they believed it was their civic responsibility to do just that.

Thank you, fellow citizens for fulfilling your civic responsibilities.

Families of the Trial Participants

All of the above participants presumably have important emotional and practical support from members of their families.

Thank you, family members!

George Floyd Supporters [5]

The supporters of George Floyd and the conviction of Chauvin and his three co-defendants were restrained during these first three weeks. Let us pray that this passionate restraint will continue during the rest of the trial. Such tactics, for this commentator, will be more effective than violent tactics. A recent such positive action was the prayer vigil and rally at Minneapolis’ Greater Friendship Missionary Church organized by the Floyd family and featuring their attorney Ben Crump and Rev. Al Sharpton.

Thank you, Floyd Family and supporters!

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[1] See these posts to dwkcommentaries.com: Derek Chauvin Trial: Week One (Mar. 15, 2021); Derek Chauvin Trial: Week Two (Mar. 21, 2021); Derek Chauvin Trial: Week Three (Mar. 24, 2021). See also List of Posts to dwkcommentaries—-Topical: George Floyd Killing, dwkcommentaries.com.

[2] Judge Peter A. Cahill, http://www.mncourts.gov; Judge in Derek Chauvin’s Trial Has A Reputation For Being Fair, Decisive, www.npr.org (Mar. 10, 2021); Olson, Judge Peter Cahill faces huge challenge leading Derek Chauvin trial, StarTribune (Mar. 26, 2021).

[3] Mason Partner Steve Schleicher Continues Service as Special Assistant Attorney General on Attorney General Ellison’s Prosecution Team in the Trial of Derek Chauvin, http://www.maslon.com (Mar. 12, 2021); About us, http://www.maslon.com; Our Firm, http://www.blackwellburket.com; Minnesota Attorney General’s Office, http://www.ag.state.mn.us; Overview, Hennepin County Attorney’s Office, http://www.hennepinattorney.org; Overview, http://www.nealkatyal.com; Neal Katya, http://www.wikipedia.com; Neal Katyal, http://www.hoganlovells.com; About us, http://www.hoganlovells.com; Marinow & Bailey, Derek Chauvin’s lawyer appears outnumbered at trial. But colleagues say Erik Nelson’s low-key style is easy to underestimate, Wash. Post (Mar. 27, 2021).

[4] Salter, EXPLAINER: Chauvin’s lawyer is outnumbered, but has help, StarTrib. (Mar. 14, 2021); Marinow & Bailey, Derek Chauvin’s lawyer appears outnumbered at trial. But colleagues say Erik Nelson’s low-key style is easy to underestimate, Wash. Post (Mar. 27, 2021).

[5] Family of George Floyd to host vigil in Minneapolis on Sunday, MINNPOST (Mar. 26, 2021); Norfleet, Street navigators aim to mediate between protesters and police during Derek Chauvin trial in Minneapolis, StarTribune (Mar. 26, 2021).

Derek Chauvin Trial: Week Three

The first two weeks of this trial focused on selecting 13 jurors for the criminal trial of former Minneapolis policeman Derek Chauvin on charges of second-degree murder and second-degree manslaughter for the May 2020 killing of George Floyd and on Judge Cahill’s reinstatement of a third-degree murder charge. Time was also spent reacting to the surprise March12th announcement by the City of Minneapolis of its $27 million settlement of the federal court civil case for money damages by the Floyd family and to the resulting defense motions to postpone the Chauvin criminal trial and move it to another Minnesota state court, which Judge Peter Cahill denied on March 19th. [1]

The focus of this third week was the selection of three additional jurors to bring the total to 15, only 14 of whom will be chosen to sit as 12 jurors and 2 alternates on March 29 for the attorneys’ opening statements.

Additional Jury Selection [2]

On Monday one additional juror was added, a female social worker in her 20’s who said many of her clients cope with mental health issues and that this professional experience helps her to be empathetic and keep an open mind about people. Judge Cahill stated he wanted one more to bring the total to 15, one of whom would be dismissed on March 29th before opening statements.

On Tuesday the final juror was selected: a white man in his 20’s who is an accountant. He said this profession bolsters his analytical bent. He has neutral opinion of George Floyd. He wishes athletes would not kneel during the playing of our National Anthem even though he understands they are protesting racial injustice, but wishes they would find other ways to express those opinions. “Honoring the National Anthem shows “respect of those who have come before us and the system we have in U.S. I have a great sense of pride in being a U.S. citizen.”

This brings the total to 15. A multi-race woman in her 20s, a multi-race woman in her 40s, two Black men in their 30s, a Black man in his 40s, a Black woman in her 60s, four white women in their 50s, a white woman in her 40s, a white man in his 30s, two white man in their 20s, and a white woman in her 20s. 

Assuming all of them show up at 9:00 a.m. next Monday, the Judge will dismiss the 15th juror chosen today and seat the other 14 (12 regular jurors and 2 alternates).

Details on the Jurors [3]

Juror 2: A white man in his 20s. He’s from Minneapolis and works as a chemist. Because of his profession, he said, “I consider myself a pretty logical person…I rely on facts and logic and what’s in front of me. Opinion and facts are important distinctions for me.” He said he has a generally favorable view of the Black Lives Matter movement but added that “I think all lives matter equally” and that the “Blue Lives Matter” message among police advocates is a counter viewpoint that isn’t necessary. He has not viewed the bystander video of George Floyd’s death. He has visited 38th and Chicago where Floyd was killed because he and his fiancé considered moving to the area.

Juror 9: A multi-race woman in her 20s. She is originally from northern Minnesota and said she was “super excited” to receive her jury summons because she believes it’s her civic duty. She said she was eager to serve regardless of the case, but especially in Chauvin’s trial, given the gravity of it. “It’s a very important case, not just for Hennepin County…but nationwide,” she said. “It’s just something everyone’s heard about, talked about…No matter the decision, people are still going to talk about it.” She said viewing the video of Floyd’s death left her with a “somewhat negative” impression of Chauvin. “No one wants to see someone die,” she said. The woman also said she sees racial disparity in the justice system. In connection with that belief, she added that she agrees somewhat that Minneapolis police officers at times use too much force against Black suspects. She considers herself a “go with the flow” type, and assured that she can be open minded about the evidence. She is the niece of a Brainerd police officer.

Juror 19: A white man in his 30s.He works as an auditor and was chosen for the jury after expressing confidence that he could be fair.He served in a jury five years ago and was dismissed as an alternate. “I was slightly disappointed after hearing the process,” he said. “…I think it’s an important part of our society.” He said he saw at least portions of the video of Floyd’s death and had a somewhat negative view of Chauvin because “someone died, and that’s obviously not a positive thing.” At the same time, the man continued, he said he can examine the evidence “from a viewpoint of the law” before deciding whether or not the defendant is guilty.

Juror 27: A Black man in his 30s. He immigrated to the United States 14 years ago and went to school in Nebraska and moved to Minnesota in 2012. He works in information technology and lives with his wife and dog. He speaks multiple languages, including French. Learning that he was in the jury pool made him “surprised and anxious,” but he realizes it’s his civic duty. While relating to Floyd’s death and thinking “it could be anybody, it could have been you,” he also said, “I believe that I will be impartial.” He said he believes people have the right to protest, but at the same time, he realizes that businesses are shut down and damaged, and his wife is unable to make it to work. He wants to serve on the jury because “it is a service to my community and our country.”

Juror 44: A white woman in her 50s. She is a single mother who works as a high-level executive in the nonprofit sector focused on healthcare. She took the unusual step of summoning her own attorney to the courthouse. At one point, the judge halted the live video feed and cleared the courtroom of everyone except trial participants out of unspecified privacy concerns. The woman said the bystander video left her with a somewhat negative view of Chauvin, explaining that “a man died, and I am not sure that’s procedure. … Not all police are bad, but the bad-behavior police need to go.” At the same time, she acknowledged sympathy for Floyd and the officers at the scene that night, saying, “Everyone’s lives are changed by this incident … and it’s not easy for anyone.”

Juror 52: A Black man in his 30s.He said he has seen the bystander’s video of Floyd’s arrest and that “I don’t think [Chauvin] had any intention of harming anybody, but somebody did die.” When pressed about assessing Chauvin’s intent, the man said he could still “definitely look at [the case] from an objective point of view.”

Juror 55: A white woman in her 50s.She lives outside Minneapolis and works as an executive assistant in a clinical health care setting. She said she has viewed the bystander’s video, but she wrote in her questionnaire filled out months ago, “I couldn’t watch it in full, because it was too disturbing to me.” That said, she pledged that “I’m not in a position to change the law. I’m in a position to uphold the law. … He’s innocent until we can prove otherwise.” 

Juror 79: A Black man in his 40s. He believe s minorities are often arrested but disagrees with the concept of “defunding” law enforcement and said, “the police do a lot. … I would trust the police.”

Juror 86: A multi-race woman in her 40s.She is an organizational consultant who helps corporations improve personnel practices and efficiency. She is married with a son and said she spends a lot of time at ice hockey arenas. Asked about the settlement, the woman said it wouldn’t impact her. “I don’t think that declares guilt one way or the other,” she said.

Juror 89: A white woman in her 50s.She works as a nurse and lives in Edina. She assured the court she could judge the evidence fairly despite having seen portions of the viral video of Floyd’s arrest and after hearing about the settlement. The woman said her professional training would affect how she would look at the evidence. “We all use our life experiences to make judgments,” she said, which in her work include resuscitating patients in urgent situations and dispensing opiates while on the job. The judge interjected and pointed out that she can’t be “an expert witness.”

Juror 91: A Black woman in her 60s.She is a grandmother and retired marketing professional and volunteers helping children in need with their homework. She said she started watching the video of Floyd’s  arrest but stopped after four to five minutes because “it just wasn’t something that I needed to see.” The woman said she has not formed opinions about either Chauvin or Floyd and was firm in saying news of the settlement would not affect her commitment to be an objective juror.

Juror 92: A white woman in her 40s. She lives in the suburbs and works in the insurance industry. Like others, she has viewed the bystander video and was aware of the settlement but said those would not be stop her from being fair and objective as a juror. The woman wrote in her juror questionnaire months ago that she didn’t believe Floyd deserved to die and police didn’t need to use excessive force. However, she continued, Floyd was not completely innocent. She said she has generally positive views of police and opposes any defunding of their departments, but also believes “people of other races get treated unfairly” by law enforcement.

Juror 96: A white woman in her 50s. She has worked in customer service and said she is an animal lover, “especially dogs.” She said she saw the bystander video of Floyd’s arrest and wrote in her juror questionnaire months ago, “This restraint was ultimately responsible for Mr. Floyd’s demise.” That said, she pledged under defense scrutiny that she could presume Chauvin innocent as the law requires her to do.

Juror 118: A white woman in her 20s. She is a newlywed and a social worker in Wright County whose clients are coping with mental health difficulties. She was unwavering in her confidence that she could judge only the evidence presented in the trial and added that her profession has provided her with the ability to be empathetic and keep an open mind about people.

Juror 131: A white man in his 20s.He is an accountant who is married and said he is analytical thanks to his profession and could weigh the evidence fairly. He said that while he understands why athletes kneel during the national anthem to protest racial injustice in America, he wishes they would do so in a different manner. “I think it’s more of a respect of those that have come before us and the system that we have in the United States,” he said. “I have a great sense of pride in being a United States citizen.” He said he has a neutral opinion of Floyd and a generally favorable view of the Black Lives Matter movement, but he believes it was “a contributing factor” in the violent unrest that followed Floyd’s death.

Other Issues Regarding Jury Selection [4]

Last Friday Erik Nelson, defense counsel claimed that 2/3rds of the 326 potential jurors who were summoned for jury duty and completed the court’s questionnaire stated they had a “negative” opinion of Chauvin and a “neutral” opinion about George Floyd.

Racial bias also was raised last week by the defense striking as a juror a Black man after he had said in the courtroom that Black people like himself did not receive equal treatment by Minneapolis police and in the justice system. ”As a Black man, you see a lot of Black people get killed and no one’s held accountable for it and you wonder why or what was the decision and so maybe in the [jury] room [I will get] to know why.”

This potential jury also told the court that the used to live near the site of Floyd’s killing and frequently after someone was shot or arrested, police were known to drive through the neighborhood blasting the song “Another One Bites the Dust” on their squad car’s radio.

Jurors, by the way, are paid $20 per day by the County.

======================

[1] See these posts to dwkcommentariees.com: Derek Chauvin Trial: Week One (Mar. 15, 2021); Derek Chauvin Trial: Week Two (Mar. 21, 2021).

[2] Bailey & Berman, Derek Chauvin trial: Jury selection nears completion ahead of next week’s opening statements, Wash. Post (Mar. 22, 2021); Walsh & Sayle, What Happened Monday in the Derek Chauvin trial, StarTribune (Mar. 22, 2021); Walsh, Judge in Derek Chauvin trial determined to select the final juror Tuesday, StarTribune (Mar.23, 2021); Walsh & Olson, 15th and final juror chosen for Derek Chauvin murder trial; opening statements next Monday, StarTribune (Mar. 23, 2021); Bailey, Derek Chauvin trial jury selected ahead of Monday’s opening statements, Wash. Post (Mar. 23, 2021); Levinson & Cooper, The jury has been selected for Derek Chauvin’s trial. Here’s what we know about them, CNN.com (Mar. 23, 2021); Ailsworth & Eastwood, Jury Seated in Derek Chauvin Trial for Killing of George Floyd, W.S.J. (Mar. 23, 2021).

[3] Walsh & Sayle, Who are the jurors in the Derek Chauvin trial?, StarfTribune (Mar. 23, 2021).

[4] See fn. 2 supra; Norfleet, Dismissal of Black potential juror in Derek Chauvin trial prompts division on race and bias  in courtroom, StarTribune (Mar. 22, 2021).

.

Derek Chauvin Trial: Week Two

Week One of this trial was discussed in a prior post. The focus was jury selection with  seven selected: 5 men and 2 women; 4 white and 3 people of color. The prosecution used five of its nine preemptory challenges; the defense, 8 of 15. The stage for Week Two (March 15-19) was set by the March 12th announcement of the $27 million settlement between the City of Minneapolis of the civil case for money damages in federal court brought by the attorneys for the Floyd family [1]

Discussion and Rulings About Impact of City-Floyd Family Settlement [2]

The settlement immediately was raised on Monday by Chauvin’s attorney, Erik Nelson, as a basis for a postponement of the trial or for a reconsideration of the denial of his previous motion for change of venue to an other Minnesota state court. He said, “I am gravely concerned with the news that broke on Friday related to the civil settlement. . . . The fact that this came in the exact middle of jury selection is perplexing to me.” This timing was “very suspicious” and ‘has incredible propensity to taint the jury pool.”

Prosecutor Steve Schleicher opposed a continuance, noting that the prosecution did not and could not control the city council.

Judge Cahill said the timing of  this announcement was unfortunate. “I wish city officials would stop talking about this case so much” even though “I don’t find any evil intent that they were trying to tamper with this case. . . . The timing  is not related  to this case.” Nevertheless, “I think the defense has a legitimate concern, and even the state has a concern.” The Judge added that he intends recall the seven jurors chosen so far to question them about the settlement and whether it might affect their ability to serve as an impartial juror. The Judge also said he would consider the defense motion for a continuance and perhaps moving the case to another court in the state.

On Tuesday Erik Nelson read on the record the alleged statement by a city official that Hennepin County Chief District Judge Barnette had “told the city that “it could proceed” with the settlement, as contained in Holly Bailey’s March 15th Washington Post article (cited below).

Judge Peter Cahill immediately responded that the Post article was erroneous. He had been told by the Chief Judge that he had told the city official, “We can’t tell you what to do. There is no approval by this court.” Cahill added that he believes Barnette also told the city official the Chief Judge was concerned about such an announcement in the middle of jury selection.

On Thursday returned to these issues by stating that the city had just claimed that it had to make the announcement of the settlement when it  did even though the documentation will not be finalized for another month and thus raises the question of whether that announcement was necessary. The prosecutor retorted that Nelson’s comments were based on third-hand information. An annoyed Judge Cahill said we need to “stop talking about it. I’ve asked Minneapolis to [do so]. They keep talking about it. We keep talking about it. We need to stop talking about it.”

On Friday morning Judge Cahill denied these defense motions.He stated, “Unfortunately, the pretrial publicity will continue no matter how long we continue the trial. I don’t think there is any place in Minnesota that has not been subject to the extreme amounts of publicity“ about this case.

Court’s Rulings on Other Pending Motions [3]

On Friday the Judge also granted, in part, the defense motion to allow some evidence of Mr. Floyd’s 2019 encounter with the Minneapolis police, limited to his medical condition after having a policeman point a gun at him and taking him into custody; his blood pressure at the scene, policy body camera footage, a suspected illicit drug pill in his car, and his statements to a paramedic for the purpose of her making a diagnosis.

In addition, the Judge granted, in part, the defense motion to limit the testimony of a prosecution witness, Sarah Vinson, a forensic psychiatrist, about Floyd’s reactions to police in May 2020 before he  became unconscious and died. 

Resumed Selection of Jurors [4]

The process of jury selection was complicated on Wednesday by the court’s questioning  (remotely by audio Zoom) seven of the previously jurors about their knowledge of, and reactions to, the  city’s settlement. This led to disqualification of two of them: a Hispanic man in his 20’s who said the settlement “kind of confirms opinions I already have” and a white man in his 30’s who said he was shocked by the size of the settlement.      

Nevertheless, by the end of the week, 13 jurors had been selected: six were people of color: a multiracial woman in her 20’s; a multiracial woman in her 40’s: two black men in their 20’s; a black man in his 40’s; and a black woman in her 60’s. The other seven were white: four women in their 50’s; a woman in her 40’s; a man in his 20’s; and a man in his 30’a.

In addition, at the end of Wednesday’s session the Judge granted three additional preemptory challenges for the defense to bring its total to nine while the prosecution got one more such challenge for a new total of six. Although the Judge initially has said there would only be two alternates, by the end of the week he said he might seek for or five alternates.

The StarTribune provided a useful explanation of alternate jurors in criminal trials. During the trial itself, none of the seated jurors will know who are the alternates, and the judge will not reveal their identities until after the attorneys’ closing arguments. That is to keep all of them at attention during the trial. Although the last ones chosen usually are alternates, that would not necessarily be  true in this important case. But once the jury retires for its deliberations, the identity of the alternates would be revealed and excluded from the jury room 

although they could vibe recalled if any of the 12 jury members has to withdraw during their deliberations before they have reached a verdict.

Thus, next week, absent any subsequent exits of the 13 so far selected, the agenda will be selecting one to three more jurors.

==============================

[1] Derek Chauvin Trial: Week One, dwkcommentaries.com (Mar. 15, 2021).

[2] Walsh, Timing of $27M settlement in midst of Derek Chauvin trial jury selection called ‘unfortunate’ by court, 8th juror seated, Star Tribune (Mar. 15, 2021); Bailey, Derek Chauvin’s attorney asks for continuance and change of venue in George Floyd case, Wash. Post (Mar. 15, 2021); Barrett, Winter & Ailsworth, Derek Chauvin Lawyer Seeks trial Delay After Settlement With George Floyd Family, W.S.J. (Mar. 15, 2021); Arango & Eligon, Derek Chauvin’s lawyer asks for a delay in the trial, N.Y. Times (Mar. 15, 2021); Walsh, $27M Floyd family payment looms over Derek Chauvin trial today, StarTribune (Mar. 16, 2021); Bailey, Derek Chauvin trial: Jury selection resumes as judge weighs defense request for delay, Wash. Post (Mar. 16, 2016); Olson & Walsh, Record-setting $27 million  Minneapolis settlement clouds jury selection in Chauvin case, StarTribune (Mar. 17, 2021); Walsh, Two seated jurors dismissed in Derek Chauvin murder trial; $27M settlement early focus today, StarTribune (Mar. 17, 2021); Karnowski & Forliti (Assoc. Press), 2 jurors dropped from Chauvin trial after $27M settlement, Wash. Post (Mar. 17, 2021); Walsh, Jury back at 9 after 2 jurors excused earlier in Chauvin trial over hearing of $27M settlement, StarTribune (Mar. 17, 2021); Olson, Walsh & Staff, Chauvin jury back at nine after two dismissed, two added during rocky day in court, StarTribune (Mar. 18, 2021); Bailey, Derek Chauvin Trial: Judge considers whether to allow mention of Floyd’s 2019 arrest, Wash. Post (Mar. 18, 2021); Walsh & Sayle, What happened  Thursday in the Derek Chauvin trial, StarTribune (Mar. 18, 2021); Walsh, Day 9 of Derek Chauvin trial: 3 new jurors for a total as judge urges silence on $27M settlement: ‘Just stop talking about it,’ StarTribune (Mar. 18, 2021); Walsh & Sayle, What Happened Friday in the Derek Chauvin Trial, StarTribune (Mar. 19, 2021); Groves, EXPLAINER: Role of Alternate jurors in ex-officer’s trial, Star-Tribune (Mar. 19, 2021).

[3] Xiong & Walsh, Judge rejects delaying or moving Derek Chauvin murder trial, StarTribune (Mar. 19, 2021); Bailey, Derek Chauvin trial judge denies motions for delay and change if venue, Wash. Post (Mar. 19, 2021).

[4]  Fn. 2 supra.