Tuesday (April 13) of Week Six turned to the presentation of the defense’s case, after the testimony of the prosecution’s final three witnesses on April 12. [1] The defense then called seven witnesses on Wednesday (April 14) while Thursday (April 15) saw the end of the evidentiary phase of the trial. First, however, we will examine rulings and comments by Judge Cahill.
Judge Cahill’s Rulings and Comments[2]
Wednesday’s trial started with the Judge granting a motion by Morris L. Hall, to quash a defense subpoena for him to testify in the trial on the ground that such testimony would infringe his Fifth Amendment privilege against self-incrimination. The Judge said, “I’m finding that he has a complete Fifth Amendment privilege.”
The Judge then denied the defense’s motion for an acquittal on the grounds that the State allegedly had failed to prove whether there was a use of force and whether any such force was unreasonable and caused Floyd’s death.
The Judge ordered the jury to consider the testimony of two defense witnesses (Creighton and Moseng on what impact “the ingestion of opioids may or may not have on the physical well-being of George Floyd, not on his character.”
At the end of Tuesday’s proceedings, the Judge told the jury that the defense was expected to finish its case by this Thursday, that the Court probably would not be in session this Friday and that closing arguments probably would happen next Monday after which the jury would be sequestered for their deliberations. “So next Monday pack a bag and bring it to court.”
Defense Witnesses [3]
1. Scott Creighton( (Retired MPD officer). He was involved in a May 2019 traffic stop of George Floyd in Minneapolis and testified, with the aid of his body cam video, that Floyd “was unresponsive and noncompliant to my commands [to show his hands] in the car he was driving. Creighton, therefore, pointed his gun at Floyd and “reached [into the car] to grab his hand and put it up on the dash.” In response, Floyd said, ”Don’t shoot me man.” Then “that individual [Floyd] was taken from the vehicle and handcuffed. In my mind, his behavior was very nervous and anxious.”
On cross-examination, Creighton admitted that he had given conflicting commands on where Floyd should put his hands in the car and that after Floyd was out of the car he was coherent and cooperative. It also should be noted that Floyd was not charged with any crime on that occasion.
2. Michelle Moseng (retired Hennepin County Medical Center (HCMC) paramedic). At the time of the May 2019 encounter, she tended to Floyd in the Police Department’s Fourth Precinct in north Minneapolis. He had “extremely high” blood pressure, and he said he “has a history of hypertension and hadn’t been taking his medication,” but that day had been taking multiple opioid pills every 20 minutes because he was addicted. She wanted him to go to a hospital because she thought he was at risk of a stroke, but he refused.
Under cross examination by the prosecution, she admitted that Floyd “was alert, obeying commands and his respiration and pulse rates were normal.” Nor did he have a stroke or stop breathing while he was with her.
3. Shawanda Hill (a young Black woman). On the morning of May 25, 2020, at Cup Foods she happened to run into George Floyd, an acquaintance, who appeared to be normal, talking and alert. He offered her a ride home in his car, but soon after they were in his car, ”he fell asleep.”
When Cup Foods employees came to the car to ask about the $20 bill Floyd had used in the store, “they were trying to wake him up over and over, but Floyd just said something, made a little gesture and nodded back off.” Floyd told her “he was tired because he had been working.”
Later a police officer arrived at the car with a drawn gun and demanded that Floyd put his hands on the dash. She woke up Floyd and told him, “Baby, that’s the police. It’s about the $20 bill that wasn’t real. Roll down the window.” Floyd immediately rolled down the window, grabbed the steering wheel and said, “Please, please don’t shoot me.” Floyd appeared to be “very” startled, but she saw nothing to indicate he was having any health problems such as shortness of breath or chest pains.
4. Peter Chang (Minneapolis Park Police officer). On May 25, 2020, he was stationed at a nearby park, but came to the scene in response to a call for assistance. He then commented on portions of his bodycam video. When he arrived, Floyd was handcuffed and sitting on the sidewalk [next to the brick wall of an Asian restaurant across 38th Street from Cup Foods.]
At the request of one of the four officers already at the scene, Chang used his squad car computer to find information about Floyd. Chang stayed by Floyd’s car and talked with two people who had been in the car, the previously mentioned Shawanda Hill and Morris Hall. As they watched what was happening across the street, Hall said, “Something’s going on. They’re taking pictures over there. Everybody’s recording this shit, man.”
When the ambulance arrived at the scene, Hall said, “Can I just see what y’all did to him? He on the ground and everything? Oh my God.” One of the bystanders, Mr. McMillian, came across the street to see these two Black people and told them they needed to call Floyd’s family.
Under cross examination, Chang said his focus remained on Floyd’s car and the two Black people there because he assumed the four officers (Chauvin and the other three) were OK.They had never radioed for help.
5. Nicole Mackenzie (MPD Medical Support Coordinator). She testified about “excited delirium,” a syndrome in dispute among health professionals, but taught to MPD police cadets. She said that the MPD training asserts that this syndrome leads to psychotic behavior , agitation, incoherent speech, superhuman strength and hyperthermia. Cadets are trained to have an ambulance at a safe distance in such situations because a suspect “can rapidly go into cardiac arrest.”
She also testified that the MPD training on “excited delirium” emphasizes putting the suspect in the side recover position and rendering CPR assistance. Judge Cahill, however, told the jury there was no evidence that Chauvin had had this training and, therefore, this testimony was not relevant to his state-of-mind on May 25, 2020. [4]
6. Barry Brodd (Retired police officer and use-of-force expert). He testified for the defense, “I felt that Derek Chauvin was justified and acting with objective reasonableness following Minneapolis Police Department policy and current standards of law enforcement in his interactions with Mr. Floyd.”
When asked about his opinion, Brodd brought up a scenario he taught at the academy referring to a domestic violence incident where an individual is Tased, falls to ground and strikes his head. That’s not deadly force, that’s an accidental death, Brodd contended.
Brodd, who for served 22 years in the Santa Rosa Police Department before his retirement in 2004, said it’s important for anyone “to try to see it as the officer on the scene … then try to put yourself in the officer’s shoes. It’s easy to sit in an office and judge an officer’s conduct.”
Brodd testified that police used force in attempting to get Floyd in the squad and getting him to the ground, but once Floyd was on the ground, Brodd said he didn’t believe the “prone control” position was use of force.
Brodd also said police officers must always keep their head on a swivel and engage in “one upsmanship,” meaning officers do not always have to fight fair. “They’re allowed to overcome your resistance by going up a level to gain control.”
He asserted that the prone position was not dangerous and unlikely to cause “pain” for restrained suspects. With respect to Floyd, “there were space limitations; Mr. Floyd was butted up against the tire of the patrol car. There was traffic still driving down the street. There were crowd issues that took the attention of the officers. Mr. Floyd was still somewhat resisting. I think there were valid reasons to keep him in the prone.
Brodd also claimed that the prone position could be viewed as “safer” for suspects potentially on drugs because it was a method of control should someone suddenly exhibit “erratic behavior going from compliant to noncompliant, not feeling any pain, potentially having superhuman strength.”
7. Dr. David Fowler (Former Maryland Chief Medical Examiner and use-of-force expert). In his opinion, Floyd died of a cardiac arrhythmia due to heart disease with contributing factors, including fentanyl. He also said, in his opinion, that Chauvin’s knee did not impact the vital structures of Floyd’s neck, that there was no research evidence suggesting that the prone position is an issue in restricting air and that carbon monoxide poisoning from the police car may have contributed to his death. Other factors Fowler mentioned were Floyd’s high blood pressure (216/160) which “could be due to his hypertension being out of control, his exposure to vehicle exhaust from the adjacent patrol car, his tumors near the carotid artery and nerve pathways. As a result, he would have classified the cause of death as undetermined due to these multiple factors.
On cross examination, Fowler admitted that there were no data showing Floyd had any injury from carbon monoxide and no evidence the squad car was running, that he did not identify the time of death, that Floyd showed no signs of overdoses such as sleepiness, that 90 percent of tumors called paraganglioma do not secret adrenaline (contrary to his direct testimony), that Fowler was not claiming that Floyd died from such tumors and that he had never said the white object observable in Floyd’s mouth was a pill of any kind.
On cross examination, Dr. Fowler also admitted he erroneously had claimed that another medical expert who had criticized holding someone in a prone position had reversed that position.
Fowler also agreed that Chauvin and the other three officers were negligent in failing to provide immediate lifesaving measures to Floyd once he lacked a pulse. at roughly five of the over nine minutes he was restrained, and Fowler is critical of that failure by the officers.
Closing of Defense Case [5]
On Thursday (April 15), outside the presence of the jury, Mr. Chauvin announced that he invokes his Fifth Amendment right not to testify and then responded to questions about that decision from his attorney, Erik Nelson: the two of them have had many conversations about whether he would testify, including as recently as the prior night; that Chauvin testified, the state would have broad latitude in its cross examination; and that he understood that any decision to testify was his alone and neither the state nor the court can equate silence with guilt. Judge Cahill then asked whether this was his decision, and he said, “It is, your Honor.”
The Judge also said, “If he [Tobin] even hints at test results the jury has not heard about, it’s gonna be a mistrial, pure and simple.”
The defense then rested on their case in chief.
Prosecution’s Rebuttal [6]
Jerry Blackwell for the prosecution told the court he intended to recall Dr.Tobin to testify about the “very small” carbon monoxide levels in Mr. Floyd’s blood, an issue made relevant by the testimony of the defense expert, Dr. Fowler. Defense counsel, Erik Nelson, however, objected to this new evidence in rebuttal.
Judge Cahill agreed with this objection because he claimed the prosecution months ago knew that Dr. Fowler would testify about carbon monoxide and allowing such evidence in rebuttal would prejudice the defense because Dr.Fowler already had left Minnesota . However, the judge said that Dr. Tobin could testify about how carbon monoxide could have affected Floyd, but could not mention the actual amount of that chemical in his blood. The Judge also said, “If he [Tobin] even hints at test results the jury has not heard about, it’s gonna be a mistrial, pure and simple.”
The prosecution then called Dr. Tobin for brief testimony within those constraints.
Then the prosecution rested its case.
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[1] See Derek Chauvin Trial: Week Six (Ending of Prosecution Case), dwkcommentaries.com (April 13, 2021).
[2] Walsh, The state rests.’ Now the defense starts its case in the Derek Chauvin murder trial, StarTribune (April 13, 2021); Walsh, ‘Baby, that’s the police:’ Woman in SUV with George Floyd testifies she woke him up when cop was at window with gun drawn, StarTribune (April 13, 2021); Walsh, Simons & Sayle, What happened Tuesday in the Derek Chauvin trial, StarTribune (April 13, 2021); Walsh, Defense expert says Derek Chauvin ‘was justified’ in his actions before George Floyd died, StarTribune (April 13, 2021); Bailey, Derek Chauvin’s defense opens with focus on George Floyd’s drug use, rebuttal testimony on use of force, Wash. Post (April 13, 2021); Xiong, Walsh & Olson, Derek Chauvin’s actions were justified and reasonable, defense expert testifies, StarTribune (April 14, 2021): Walsh, Defense will resume today arguing that Derek Chauvin did not kill George Floyd, Star Tribune (April 14, 2021); Forliti, Karnowski & Webber(AP), Judge refuses request to acquit Chauvin in Floyd’s death, Wash. Post (April 14, 2021); Karnowski & Tarm, EXPLAINER: Reluctant witness won’t testify in Chauvin trial, Wash. Post (April 14, 2021); Bella & Iati, Live Updates: At Chauvin’s trial, defense’s medical expert says officer’s kneeling on George Floyd’s neck did not injure him, Wash. Post (April 14, 2021); Walsh, Defense witness: Due to multiple factors, manner of George Floyd’s death ‘undetermined,’ StarTribune (April 14, 2021); Bella, Iati, Kornfield & Knowles, Live updates: At Chauvin’s trial, defense medical expert say’s officer’s kneeling on George Floyd’s neck did not injure him, Wash. Post (April 14, 2021); Walsh, Simons & Sayle, What happened Wednesday in the Derek Chauvin trial, StarTribune (April 14, 2021; .Xioong, Walsh & Olson, Cardiac arrest and drugs, not lack of oxygen, caused Floyd’s death, defense expert says, StarTribune (April 15, 2021).
[3] See fn. 2 supra.
[4] Mackenzie previously had testified for the prosecution. See Derek Chauvin Trial: Week Five, dwkcommentaries.com (April 10, 2021).
[5] Walsh, Derek Chauvin tells court he will not testify in his murder trial, StarTribune (April 15, 2021); Belia & Bellware, Chauvin declines to testify, invoking his Fifth Amendment right as defense rests its case, Wash. Post (April 15, 2021); Walsh, Simons & Sayle, What happened Thursday in the Derek Chauvin trial, StarTribune (April 15, 2021); Tompkins, Derek Chauvin declines to testify, N.Y. Times (April 15, 2021).
[7] See fn. 6 supra.
[8] Belia, Derek Chauvin tells court he will not testify in his murder trial, Wash. Post (April 15, 2021); Beila, Coroner who performed Floyd’s autopsy called to dispute defense expert’s carbon monoxide claim, prosecutor says, Wash. Post (April 15, 2021); Walsh, Derek Chauvin tells court he will not testify at his murder trial, StarTribune (April 15, 2021);Tompkins, Derek Chauvin declines to testify, N.Y. Times (April 15, 2021).
