Federal Criminal Trial for Killing George Floyd: Jury Deliberations and Verdict

On February 23, U.S. District Court Judge Paul Magnuson gave the Court’s instructions to the jury, and the jury engaged in their deliberations for the rest of the day and most of the next day. On the afternoon of February 24, the jury rendered its verdict. [1]

                                                     Jury Instructions

The Judge told the jurors they must view the evidence in light of what a “reasonable officer at the scene” would have done “without the benefit of 20-20 hindsight” and then “determine whether the decision to use force on Floyd was reasonable under the circumstances that were tense and rapidly evolving.” 

Moreover, “it violates the Constitution for a police officer to fail to intervene if he had knowledge of the force and an ability to do so.” 

On each count, if the jurors find an officer guilty, they must determine whether the officer’s actions caused Floyd’s death. (If the jury so finds, longer sentences would be permissible.)

                                                        Jury Verdict [2]

On the afternoon of February 24, after total deliberations of 13 hours over two days, the jury rendered its verdict that all three defendants were guilty of all charges.

                                            Reactions to the Verdict [3]

Afterwards, Assistant U.S. Attorney LeeAnn Bell said, “[A]s one of the brave bystanders said, ‘George Floyd was a human being.’ He deserved to be treated as such.”

George Floyd’s brother, Philonise Floyd, said, “This is something we want everybody to remember: If you kill somebody, you’re going to get time.”

Minnesota Attorney General Keith Ellison stated, “Once again, the principle that no one is above the law and no one is beneath it has been upheld. The verdicts vindicate the principle that officers have a duty  and a responsibility to intervene and recognize when a fellow officer is using excessive force.”

Christy E. Lopez, a professor at Georgetown University Law Center and an expert on police training, commented that this verdict “could significantly change law enforcement culture, compelling agencies to make sure that officers are properly trained and are upholding their duties. It shifts the entire narrative from misconduct being about just acts of commission to misconduct also being about acts of omission.” [4]

Other experts noted that “this case focused on a more widespread problem than a single officer’s act of violence: the tendency of officers to stand by when they witness a fellow officer committing a crime.”

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[1] Olson & Mannix, Jury wraps first day of deliberating federal civil rights case against 3 ex-Minneapolis officers in George Floyd death, StarTribune (Feb. 23, 2022); Bogel-Burroughs, Jurors to Weigh Fate of Officers Who Restrained George Floyd as He Died, N.Y. Times (Feb. 22, 2022).

[2]Olson & Mannix, Ex-Minneapolis officers guilty on all civil rights charges related to George Floyd’s death, StarTribune (Feb. 24, 2022); Former Minneapolis Police Officers Found Guilty of Violating George Floyd’s Civil Rights, W.S.J. (Feb. 24, 2022); Former Minneapolis officers found guilty of violating George Floyd’s civil rights, Wash. Post (Feb. 24, 2022).

[3] Walsh, Reaction to guilty verdicts ranges from proper police accountability to worries of chilling effect on cops, StarTribune (Feb. 24, 2022); Arango, Bogel-Burroughs & Senter, 3 Former Officers Are Convicted of Violating George Floyd’s Civil Rights, N.Y. Times (Feb. 24, 2022).

[4] See Importance of Pending Federal Criminal Case Over Killing of George Floyd, dwkcommentaries.com (Jan. 24, 2022)(discussion of Professor Lopez’ work on police training), https://dwkcommentaries.com/2022/01/24/importance-of-pending-federal-criminal-case-over-killing-of-george-floyd/

 

Federal Criminal Trial for Killing George Floyd: Closing Arguments

On February 22, 2022, the United States for the prosecution and the attorneys for the defendants Tou Thao, J. Alexander Kueng and Thomas Lane presented their closing arguments to the jury. [1]

The Charges Against the Defendants

Thao and Kueng are charged with failing to intervene on Floyd’s behalf while the two of them and Lane are charged with with failing to provide medical aid to Floyd while Derek Chauvin was using unreasonable force.

Prosecution’s Closing Argument

Assistant U.S. Attorney Manda Sertich emphasized the length of time that Mr. Floyd had suffered while the officers did not provide aid. They watched and listened, but did not help as Chauvin killed a man “in broad daylight on a public street.” They knew Floyd needed aid. They had been trained that every second counted to start life-saving procedures for an unresponsive man. They had the ability to help, but they didn’t.

Thao had “done nothing” for 4 minutes and 40 seconds as Floyd called out for help. Instead he “mocked” Floyd by telling bystanders that this is “why you don’t do drugs, kids.” During that same time, Kueng ignored Floyd’s pleas as he crouched “shoulder to shoulder” with Chauvin, never urging him to let up. Kueng also laughed when Chauvin said the dying man talked a lot for someone who said he couldn’t breathe. Lane, who was holding Floyd’s legs, had chosen “not to stop the horror unfolding under his nose, only suggesting that Chauvin roll Floyd onto his side, but  “doing nothing to give Floyd the medical aid he knew he so desperately needed.”

Even as Floyd said he could not breathe for a 27th time, the officers “were only halfway through their crime.”

The falsity of the defense is proved by ordinary citizen bystanders, including a nine-year old, who cried out for the officers to intervene. “These civilians didn’t have a badge. They didn’t have other officers who could back them up. They knew these officers had more power than they did, more authority than they did and could cause trouble for them. And they still insisted.”

“These defendants knew what was happening, and contrary to their training, contrary to common sense, contrary to basic human decency,” they “chose not to aid George Floyd, as the window into which Mr. Floyd’s life could have been saved slammed shut. This is a crime. The defendants are guilty as charged.”

Defendants’ Closing Arguments

The three defense counsel collectively argued that their clients had deferred to the judgment of Chauvin, the senior officer on the scene; that their attention had at times been diverted from Floyd’s deteriorating condition; and that restraining Floyd was necessary because he had taken fentanyl and earlier had refused to get into the back of a squad car after being accused of using a counterfeit $20 bill to buy a package of cigarette.

Defense counsel also argued that the prosecution had made misleading arguments and that this case had been brought because of political pressure.

Lane’s attorney noted that he had asked Chauvin if they should roll Floyd onto his side and thus had not been charged with failure to intervene. In addition, when paramedics had arrived, Lane told them that Floyd was unresponsive and then Lane rode with Floyd in the ambulance and applied chest compressions.

Kueng’s attorney said the crowd of bystanders had created an unusual and hostile situation.

Prosecution Rebuttal

Another Assistant U.S. Attorney, LeeAnn Bell, emphasized that the key to the case was a police officer’s duty: “In your custody, in your care.”

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[1] Mannix & Olson, In closing arguments at trial of three former Minneapolis officers, attorneys spar over ‘willful intent,’ StarTribune  (Feb. 22, 2022); Mannix, Defense of former officers puts Minneapolis ‘paramilitary’ training on trial, StarTribjne (Feb. 22, 2022); Barrett, Prosecutor Says Ex-Officers ‘Chose to Do Nothing’ in Floyd arrest, W.S.J. (Feb. 22, 2022);

Federal Criminal Trial for Killing George Floyd: Defendant Thomas Lane Testimony

On February 22, 2022, Defendant Thomas Lane took the witness stand to provide his testimony in defense of the charges that he illegally deprived George Floyd of his constitutional rights. The following is a summary of that testimony based on the cited newspaper articles. [1]

Lane’s Personal Background

Lane began by his life and background. He grew up in Arden Hills, Minnesota and attended Mounds View High School and earned an associate’s degree from Century College before attending the University of Minnesota and deciding to pursue a career in law enforcement.

He will be turning 39 in a couple of weeks. His wife and he are expecting their first child soon.

Lane’s Minneapolis Police Department Background

In February 2019 he was accepted by the MPD and completed his training in December of that year. The training taught them that in cases of excited delirium officers were to keep the person from “thrashing, hold them in place” until paramedics arrive to inject ketamine. Under cross examination, he admitted that they were trained if someone did not have a pulse to start CPR within 5 to 10 seconds with Lane’s qualifier “if the situation allows.”

During the first five months of 2020 he had been on about 120 calls as a probationary officer.

                              Lane’s Encounter with George Floyd

On May 25, 2020, Lane on his fourth shift as a full-fledged officer and fellow rookie officer, J. Alexander Kueng, were the first officers answering a call of alleged forgery in progress at Cup Foods in south Minneapolis.

After being told by someone at Cup that the suspect was outside in a car across the street, Lane went there and gave commands to the suspect (Floyd) and after he got out of the car, Lane handcuffed him. Soon thereafter Lane had Floyd sit on a sidewalk with his back against a wall and he did not try to get up or escape.

Later when Chauvin arrived and pinned Floyd on the ground with his knee, Lane held down Floyd’s legs and Kueng restrained his midsection. After about four minutes, Lane noticed that Floyd had stopped resisting and Lane said, “Should we roll him on his side?” But Chauvin said, “Nope, we’re good like this.” 

Later Lane said he didn’t always have a clear view of what Chauvin was doing, but that his knee “appeared to be just kind of holding [him] at the base of the neck and shoulder.” When he could not see Floyd’s face, Lane asked again to roll him over to “better  asses” his condition. Chauvin did not respond and instead asked if Lane and Kueng were OK.

Lane felt reassured when an ambulance arrived and a paramedic checked Floyd’s pulse while  retrieving a stretcher without urgency, leading Lane to believe that “Floyd’s all right.” 

Lane choked up and became teary as he described why he went in the ambulance to help the paramedics. “Just based on when Mr. Floyd was turned over, he didn’t look good, and I just felt like , the situation, he might need a hand.”

In the ambulance, Lane realized Floyd had gone into cardiac arrest. 

During cross examination, Lane agreed that “fear of negative repercussions , fear of angering a field training officer [like Chauvin] is not an exception to the duty to render aid.”

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[1] Olson & Mannix, After Lane takes stand, testimony concludes in the trial of three former Minneapolis police officers charged with abusing George Floyd’s civil rights, StarTribune (Feb. 21, 2022); Arango, Former Officers Finish Defense in Trial   Over George Floyd’s Death, N.Y. Times (Feb. 21, 2022); Bailey, Defense rests after testimony from former Minneapolis officer who said he tried to get Chauvin to reposition Floyd, Wash. Post (Feb. 21, 2022).

Federal Criminal Trial for Killing of George Floyd: Other Witnesses for Defendant J. Alexander Kueng

Federal Criminal Trial for Killing of George Floyd: Other Witnesses for Defendant J. Alexander Kueng  

A prior post reviewed the testimony of Defendant J. Alexander Kueng. Here are summaries of the other witnesses he put forward.1

Joni Kueng. The first witness for Kueng was his mother, Joni Kueng, who testified briefly that he had played the peacemaker among the family siblings.

Steve Ijames, a use-of-force instructor and a retired assistant police chief in Springfield, Missouri, as a defense expert, testified that MPD’s training on an officer’s duty to intervene to stop other officers from using excessive force was ineffective because it relied too heavily on lectures instead of hands-on training and testing to ensure that  trainees learned the right lessons. Indeed, such training must emphasize demonstrations and testing to ensure that the attendees absorbed the subject matter. “Just because you sat through a class doesn’t mean you learned anything.”

Ijames, however, testified that Chauvin’s continued force after Floyd stopped fighting was unreasonable “beyond question.” But according to Ijames, Kueng lacked the training and experience to recognize that inappropriate use of force and thus it made sense for Chauvin to defer to Chauvin. However, Ijames admitted that it was conceivable that Kueng could have walked around and checked Floyd’s neck without moving or disturbing Chauvin.

Gary Nelson, a retired MPD lieutenant and field training officer, testified that it made sense for the other officers to let Chauvin take charge of the scene, especially since Kuenig and Thomas Lane were rookies. “Somebody needs to be in charge” and there isn’t always time to deliberate.

However, under cross examination, Nelson agreed that officers are not obligated to follow clearly unlawful orders and that they are accountable for their actions and inactions.

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  1. Mannix & Olson, Kueng testifies of attempting to place Floyd in squad: “I felt like I had no control,’ StarTribune (Feb. 16, 2022); Karnowski & Webber, Prosecutors question officer in Floyd killing about training, AP News (Feb. 17, 2022); Mannix & Olson, Kueng says he didn’t see ‘serious medical need’ when George Floyd fell unresponsive, StarTribune (Feb. 17, 2022).

 

 

 

Federal Criminal Trial for Killing of George Floyd: Defendant J. Alexander Kueng’s Testimony 

On February 16-17, Defendant J. Alexander Kueng took the witness stand in his federal criminal trial. Here is a summary of his testimony.[1]

Kueng first described his growing up in north Minneapolis, the oldest of five children as the son of a Black father and white mother. He attended Sheridan Elementary School and Patrick Henry High School. Police officers often came to his home because of problems created by his younger siblings. This prompted his not being a “fan of police” and later his decision to become a police officer to do a better job.

He went to college in New York State to play soccer. But after tearing his ACL, he returned home and graduated from the University of Minnesota with a degree in sociology and criminology. He then worked in security and loss prevention at Macy’s on Nicollet Mall and then was a community service officer with the MPD before the 2018 Super Bowl in the city.

On May 25, 2020, Kueng was a rookie policeman, only a few days off  probationary status.

Although he was in the first squad car on the scene and, therefore, was supposed to be the one in charge, everyone knew “it’s always the senior officer who is in charge,” i.e., Derek Chauvin, who was “very quiet, by the book, knowledgeable and commanding respect from other officers.” Chauvin was “fair but tough.”

At the scene, Kueng discussed his early attempt to push George Floyd into the back seat of a squad car. Floyd pushed back, slamming Kueng’s face on the Plexiglass divider in the car. “His behavior just went to extreme measures. He started shaking very violently and seemed to have no pain response.” This prompted Kueng to wonder if this man was suffering from excited delirium. “I felt I had no control. I felt like any moment he could shove me off.”

A little later Kueng, who was kneeling on George Floyd’s back, while Derek Chauvin had his knee near Floyd’s neck and Thomas Lane held his legs, testified that he was concerned about their ability to stop Floyd from thrashing around and, therefore, disagreed with Lane’s suggestion of changing the restraint. Instead, Kueng trusted and deferred to Chauvin as his senior officer.

Indeed, he agreed with his counsel’s suggestion that cadets are taught unquestioned obedience to their superiors, especially in light of probationary officers being subject to being  fired at will. He believed that Chauvin could still have him unilaterally terminated. As a result, he worried about that possibility on every shift. Therefore, he never told Chauvin to get off Floyd. “I would trust a 19-year veteran to figure it out.”

When Kueng could not find a pulse for Floyd, who was face down on the street, he told Chauvin that he could not find a pulse and assumed that it was up to Chauvin to check for a more accurate assessment and make decisions on the “difficult balance between scene safety and medical care.” Kueng also said he was unable to confirm that  Floyd did not have a pulse because he was unable to check for a carotid pulse as he had been trained.

Kueng also described his training of how to secure a site and the need to check someone’s neck pulse if he or she is in distress.

Under cross examination, Kueng was shown material from an emergency medical responder course he took that said someone might not be breathing adequately even though the person was talking and listed things to check for. Kueng agreed that such a situation called for reassessment and agreed that he was trained to roll someone on his side to help him breathe.

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[1] Karnowski & Webber, Officer Charged in Floyd killing says he deferred to Chauvin, AP News (Fe. 16, 2022); Mannix & Olson, Kueng testifies of attempting to place Floyd in squad: “I felt like I had no control,’ StarTribune (Feb. 16, 2022); Karnowski & Webber, Officer charged in Floyd killing says he deferred to Chauvin, AP News (Feb.17, 2022); Karnowski & Webber, Prosecutors question officer in Floyd killing about training, AP News (Feb. 17, 2022),  Olson & Mannix, Kueng says he didn’t see ‘serious medical need’ when George Floyd  fell unresponsive, StarTribune (Feb. 17, 2022),

 

 

Federal Criminal Trial for Killing of George Floyd: Defendant Tou Thau’s  Testimony

At the end of the prosecution’s case on February 14, Attorneys for all three officers immediately moved to have charges dismissed, but Judge Magnuson denied their motions from the bench, though he said he would consider written briefs on the subject.

Then two of the three defendants —J. Alexander Kueng and Tou Thau–said they intend to testify in their defense. The other defendant—Thomas Lane—at the start of the trial through his attorney said he also so intended, but on February 14, his attorney said Lane wanted to think about it overnight.[1]

Here then is a summary of the testimony of the first defendant, Tou Thao.

Tou Thao[2]

Thao said he first encountered police when he was 7 or 8 years old and his father beat him and a younger brother with an extension cord to break up their fight and when their mother intervened, the father beat her with the cord and retrieved a gun and threatened to kill them all. The three of them then fled to an aunt’s nearby house and called 911. When the police arrived, he accompanied them to the family home and unlocked the door so the police could arrest his father.

Years later after he flunked out of Anoka-Ramsey Community College and was working at Cub Foods, he decided to pursue his childhood interest in becoming a police officer. He is married  with three young children.

Thao testified that in his 2009 police training, pinning a suspect on the ground with a knee was presented as an appropriate technique in certain situations. Thao provided these photos from his training: (a) two recruits using their knees  in a “two-person prone handcuffing drill” with a person face-down on the ground; (b) two officers holding two “proned-out” (on their stomachs) people, one is handcuffed while the other is being handcuffed; (c) Thao and another classmate with an actor-suspect prone, hands behind his back, and Thao said the two classmates both were using their knees to restrain the “suspect;” (d) recruits marching in formation with sticks for riot control; (e) cops practicing with gas masks while being sprayed with tear gas; (f) trainees in Phalanx formation (V-shape). They also had cadence running when instructor would say something and the recruits would respond in chorus. Thao says he was never told it was improper to use knees to restrain except wrapping their legs around a suspect’s neck was prohibited.

After this training he was laid off and was unemployed before he was hired as a security guard at Fairview Riverside Hospital in Minneapolis for almost a year before he was re-hired by MPD. There he saw notations in hospital records for excited delirium. Sometimes a doctor or nurse asked him to restrain a patient.

On May 25, 2020, while eating dinner with his partner Derek Chauvin they were called to respond to an out-of-sector forgery call. It was a “Priority 1 call—get there fast, suspect still on scene.” While going there in a squad car with Chauvin, they were told over the phone or radio that there was a struggle with the suspect (Floyd) so they activated their car’s lights and siren, but after being told the scene was OK, they turned them off. Dispatch called them off the call, but they continued to Cup Foods because it had a reputation of being hostile to police as a well-known Bloods gang hideout.

Thao  said when he and Chauvin arrived, the other officers were struggling with Floyd to put him in a squad car and for Thao it was obvious Floyd “was under the influence of some kind of drugs” and in a state of “excited delirium.” Although Thao heard Floyd saying, “I can’t breathe,” he could not see anything that would have interfered with his breathing.

While at the scene, Thao pulled out of his squad car a hobble device to help restrain Floyd, but the officers decided not to use it because it would have complicated the work of the ambulance crew on their way there. Thao also called Dispatch to speed up the EMS response because he knew it was a matter of “life or death.”

Thao said he had “no idea” something serious had happened to Floyd until Minneapolis firefighters arrived on the scene after Floyd had been taken away in an ambulance. Until then, he testified, he had no idea something serious had happened to Floyd. In all of this, Thao never touched Floyd.

Under cross examination, Thao admitted that Floyd appeared unconscious at the scene, that officers have a duty to intervene when colleagues break the law and delaying CPR for even a minute can greatly diminish a person’s chances of survival.  He also said “it was a possibility” that when he was looking down at Floyd on the pavement, he knew what was going on. Thao testified that he was taught that it sometimes was OK to use neck restraints to help handcuff someone. But Thao agreed that using a knee to get someone under control is different from using it to restrain someone who’s already handcuffed — and that the neck should be avoided once someone is under control. Asked if what Chauvin was doing was a trained neck restraint, Thao replied, “I don’t believe so.”

Thao said he took a position on the street to serve as a “human traffic cone” to keep human traffic away from the other officers. He heard onlookers becoming more anxious about Floyd’s condition and calling on them to check his pulse. He, however, did not see any of the other officers roll Floyd over and perform CPR and presumed that meant Floyd was breathing and not in cardiac arrest. Thao also explained his body cam video at the scene.

At four minutes into restraint, Thao admits Floyd’s pleas were getting weaker. But, he says, that is a sign that the restraint was working. If Floyd had excited delirium, he needs to be kept on the ground. During the fifth minute, he admits no bystanders have stepped off the curb or taken steps toward him, but we’re trained not to underestimate a crowd. He refuses to admit that he could check on Floyd’s status. He did not tell his partners what bystanders were saying. Nor did he tell them that Floyd had “stopped speaking, went unconscious and that [he] had gotten requests from the crowd to check his pulse.”

In his prior interview by the MBCA, Thao said, “I could tell the officers on the ground were getting tired. Everyone’s breathing hard.”

Seng Yang.

Thao’s wife, Seng Yang testified briefly that her husband was law-abiding.

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[1] Olson & Xiong, At least two ex-officers plan to testify in federal civil rights trial as defense prepares to present its case, StarTribune (Feb. 14, 2022); Forliti & Karnowski, Prosecution rests in 3 cops’ trial in George Floyd killing. AP News (Feb. 14, 2022); Bailey, Prosecution’s case against former officers charged in George Floyd’s death ends with teenage witness, Wash. Post (Feb. 14, 2022);

[2] Vera & Kirkos, First of the officers involved in George Floyd’s death testifies during federal civil rights trial, CNN.com (Feb. 15, 2022); Xiong & Olson, Ex-officer Tou Thao takes the stand in civil rights trial for Floyd death, StarTribune (Feb. 15, 2022); Karnowski & Webber, Officer in George Floyd’s killing testifies about training, AP News (Feb. 15, 2022); Karnowski & Webber, Officer says he assumed fellow cops were caring for Floyd, AP News (Feb. 15, 2022); Barrett, Former Minneapolis Police Officer Takes Stand in Federal Trial Over George Floyd’s Killing, W.S.J. (Feb. 15, 2022); Olson & Mannix, Thao testifies he didn’t convey crowd’s concerns about George Floyd to Chauvin, Kueng takes the stand, StarTribune (Feb. 16, 2022); Karnowski & Webber, 2 officers testify at federal trial in George Floyd killing, AP News (Feb. 16, 2022).

 

 

Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part III)

A prior post discussed the testimony of the first 11 prosecution witnesses: Kimberly Meline, Charles McMillian, Jena Scurry, Christopher Martin, Derek Smith, Genevieve Hansen, Jeremy Norton, Katie Blackwell, Dr. Bradford Wankhede Langenfeld, Andrew Baker and Christopher Douglas.[1]

Another post discussed the testimony of the next eight prosecution witnesses: Dr. David M. Systrom, Jr., Nicole Mackenzie, Vik Bebarta, McKenzie Anderson, Richard Zimmerman, Kelly McCarthy, Alyssa Funari and Matthew Vogel. [2]

This post provides resources that discuss the February 14th testimony of the prosecution’s final witnesses: Timothy Longo, Jr. and Darnella Fraser. [3]

 Timothy Longo, Jr.

A veteran of the Baltimore Police Department and Associate Vice President for Safety and Security at the University of Virginia, Longo testified that the three ex-MPD officers failed in their duty to care for George Floyd and that their restraining him on the ground was “inconsistent with generally accepted police practices.” More specifically, he faulted their “decision to put Floyd stomach-down on the ground, their failure to sit or stand him up and their failure to provide medical aid when he stopped breathing and showed no pulse.” Their duty “to care for . . . restrained subject[s] is ‘absolute’ because they’re no longer able to take care of themselves.”

Moreover, when one officer is using illegal force, other officers at the scene have a duty to “do something to stop the [illegal] behavior” and that duty is not dependent on rank or experience. “It’s a responsibility of everyone that’s there to do something.” In short, an officer has a duty to take “affirmative steps to stop another officer from using excessive force. “The term ‘intervene’ is a verb, it’s an action word. It requires an act . And what you do is, stop the behavior.”

Moreover, according to Longo, the appropriate legal force that may be used on a suspect is only enough to accomplish the objective in light of the seriousness of the alleged crime, whether the subject was a threat, environmental conditions and the presence of others at the scene.

Longo also testified that his review of the relevant evidence did not find any indication that Floyd posed a threat to anyone and that he simply did not want to get into a squad car because he was scared and having trouble breathing.

In short, in Longo’s opinion, Chauvin’s actions were “wholly contrary” to generally accepted police use of force policies.

On cross examination, Longo admitted he has close ties to the U.S. Department of Justice and Hennepin County prosecutors by testifying for the prosecution in the criminal case against former Minneapolis policeman Mohammed Noor. Yet he testified for two Baltimore police officers in the 2015 death of Freddie Gray in the back of a police van even though Gray was handcuffed with his legs tied.

Darnella Fraser[4]

Fraser, then age 16, was at the scene of George Floyd’s detention by the four MPD police officers and took the now infamous six-plus minute video of that restraint. Moments after she took the stand, she began crying and said, “I can’t do it. I’m sorry.” Then after the Judge took a short break, she resumed her testimony. She testified that she saw Floyd on the ground with Chauvin’s knee on his neck. He looked very uncomfortable and kept saying, “I can’t breathe.” At the same time, Thao looked like he was protecting and patrolling the area. I didn’t see George Floyd resist at all. The only thing I saw him do was really try to find comfort in his situation—try to breathe and get more oxygen.”

“I knew Floyd needed medical care when he became unresponsive. Over time, he kind of just became weaker and eventually stopped making sounds overall.”

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[1] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part I), dwkcommentaries.com (Feb. 2, 2022).

[2] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part II), dwkcommentaries.com (Feb. 11, 2022).

[3] Olson & Xiong, Veteran officer: Cops failed in their duty to provide care for George Floyd while in custody, StarTribune (Feb. 14, 2022); Olson & Xiong, At least two ex-officers plan to testify in federal civil rights trial as defense prepares to present its case, StarTribune (Feb. 14, 2022). Forliti & Karnowski, Expert takes issue with officers’ conduct in Floyd killing, AP News (Feb. 14, 2022); Foriiti & Karnowski, Prosecution rests in 3 cops’ trial in George Floyd killing. AP News (Feb. 14, 2022),

[4] See also these posts to dwkcommentaries: Derek Chauvin Trial: Week Four (April 2, 2021); Witnessing (April 25, 2021); Darnella Fraser’s Continued Witnessing (May 26, 2021); More Honors for Darnella Fraser (June 12, 2021).

Further Criticism Over Dr. Nystrom’s Comments About “Excited Delirium” 

The prior post discussed comments about “excited delirium” by Dr. Paul Nystrom, who also is a moonlighting MPD police officer, that were skeptical about AMA and other criticism over the concept of “excited delirium.”[1] Those comments have triggered vigorous dissent. [2]

On February 14, Minneapolis Mayor Jacob Frey said he was “irate” when he learned of these comments by Dr. Nystrom. According to the Mayor, “The direction we gave was very clear. We wanted this to be a substantive — not a cosmetic — change. I directed very clearly to move away from excited delirium as both a term and a concept. … The video you’re referencing was not in line.”

In addition, the Mayor directed “the department to immediately terminate their contract with Dr. Nystrom.”

Similar criticism was voiced by Hennepin Healthcare CEO Jennifer DeCubellis, Chief Medical Officer Dr. Daniel Hoody and Chief Health Equity Officer Dr. Nneka Sederstrom. They said their organization had “failed to follow through on our promise to no longer teach excited delirium and to be intentional in addressing systemic racism.  Systemic racism is deeply imbedded in law enforcement and health care systems, including ours. We failed to address it here when we had the opportunity and, in doing so, have caused further pain and mistrust. We are extremely sorry for the further harm this has caused to our community.”

Interim Minneapolis Police Chief Amelia Huffman had additional comments. She said when Nystrom gave an outline of the revised training in person to [MPD] command staff he did not include “this digression into really his thoughts about the controversy” that were included in the final training video and that “did not meet what we asked for . . . and wasn’t appropriate.”

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[1] New Evidence of “Excited Delirium” Training by MPD, dwkcommentaries.com (Feb. 13, 2022).

[2] Mannix, Mayor Frey: Hennepin Healthcare doctor failed to follow directive on ‘excited delirium’ training, StarTribune (Feb. 14, 2022).

New Evidence of “Excited Delirium” Training by MPD

So far, prosecution witnesses repeatedly have testified that the Minneapolis Police Department (MPD) has rejected the concept of “excited delirium” as a valid medical concept for use by its police officers in confronting suspects.

On February 12th, however, Andy Mannix of the StarTribune reported that its public records request has discovered a recent MPD training video that teaches officers how to respond to excited delirium and using studies with “excited delirium” in the titles.

In this training video, Dr. Paul Nystrom, an emergency physician at Hennepin Healthcare and also a moonlighting MPD police officer, says officers should no longer use the words “excited delirium” to describe the real phenomenon and instead use a name like “severe agitation with delirium.” He also stated, “We all agree the entity exists.” But, says Mannix, not everyone agrees, especially the American Medical Association.

Dr. Nystrom, however, in the video criticizes “specialists” and “experts” who have rejected the science of excited delirium. “I wouldn’t go into an operating room and tell an anesthesiologist how to practice. Most of us [policemen] don’t appreciate somebody else getting in our lane when they don’t do the things we do.”

He also uses the same acronym used in the previous training—“NOTACRIME” to help officers remember how to identify the syndrome:” “N=Nudity; O=Objects (person acting violently toward objects such as glass or shiny objects).”

This new training has been endorsed by MPD’s Deputy Chief of Professional Standards, Troy Schoenberger, who said it meets AMA policy, including having a medical professional teach the course. He added, “This training was important in the transition away from the use of the term ‘excited delirium,’ while still recognizing that there are symptoms that officers may observe, along with his [Nystrom’s] recommendations as to how to properly care for patients exhibiting those symptoms.”

A contrary opinion on the new training was voiced by Dr. Michael Freeman, an associate professor of forensic medicine at Maastricht University in the Netherlands. The new training, he said, is “window dressing” that fails to meet the AMA policy, and instead reinforces dangerous police practices based on shoddy research.

Also critical of the new training was Dr. Max Fraden of Hennepin Healthcare. “This is a change in name only. And the issue with excited delirium is not the name.” Last year Fraden and other hospital staff presented a petition to the its  leadership to stop training law enforcement on the concept, and leadership responded by saying they had stopped such training in 2018 and any new training would involve “trauma-informed care” and anti-racist framework.” Fraden, however, said the new video “seems very opposed to what Hennepin leadership says their policy is.”

Mayor Frey’s office said it “will be reviewing with external medical experts what appears to be a failure to follow a directive,” and the Mayor has directed the department to terminate its contract with Dr. Nystrom.

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1 Federal Criminal Trial for George Floyd Killing: Prosecution Witnesses (Part (I), dwkcommentaries.com (Feb. 2, 2022); Federal Criminal Trial for George Floyd Killing (Part (II), dwkcommentaries.com (Feb. 11, 2022).

2 Mannix, Minneapolis Police Department still teaching controversial ‘excited delirium’ syndrome—despite claiming it had stopped, StarTribune (Feb. 12, 2022),

 

 

 

 

 

 

 

 

Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part II) 

On Monday morning (February 7) the federal criminal trial of former Minneapolis policemen (J. Alexander Kueng, Thomas Lane and Tou Thau) resumed in the federal courthouse in St. Paul before U.S. District Judge Paul Magnuson and a jury of 12 and 6 alternates. During the first phase of the trial (January 24-28, 31 and February 1-2), the prosecution presented 11 witnesses.[1]  The following is a summary of the testimony of the eight prosecution witnesses who testified in this resumption of the trial through February 11.[2]

Dr. David M. Systrom, Jr.

A physician at Boston’s Brigham and Women’s Hospital and assistant professor of medicine at Harvard Medical School and an expert witness for the prosecution, Dr. Systrom first described how the lungs and diaphragm work: breathing in compresses the stomach, spleen and liver with carbon dioxide being the waste product of cellular metabolism, and if it does not leave the body, it will build up in blood and tissue (acidosis.)

In his opinion, George Floyd died of asphyxia due to compression of his upper airway and inadequate breathing caused by being held in prone position. Yet this “was an eminently reversible respiratory failure right up until the time he lost consciousness.” It “was quickly reversible if the impediments to breathing were removed.” But they were not removed, and the “fatal combination” of “obstruction and restriction” of his breathing ultimately caused him to lose consciousness and his heart to stop.

Dr. Systrom noted how “Floyd’s position on the ground with his arms cuffed behind his back and the officer on top of him was problematic” as the arms and shoulders work as “adjunct respiratory  muscles” to help create space for full diaphragmatic breathing.  This restricted breathing resulted in low lung volume and inability to draw sufficient breathe leading to complaints about “shortness of breath” followed by Floyd’s loss of consciousness.

Also supporting Systrom’s opinion was Floyd’s end-tidal carbon dioxide level of 73 milliliters of mercury, twice the normal level and “life threatening” and often associated with an increase in the hydrogen ion concentration in the blood and low oxygen. In addition, he testified that there was no evidence suggesting a heart rhythm disorder or effects of methamphetamine or fentanyl.

Even after Floyd’s heart stopped, Dr. Systrom testified, there was still a chance to save him if CPR had been started immediately, but that did not happen.

Nicole Mackenzie

MPD’s medical support coordinator, Mackenzie testified that Kueng and Lane recently were in her MPD academy “emergency medical responder” class. They were taught about the need to roll subjects into the “side recovery position” so they could breathe instead of keeping them prone on their stomachs. They also were taught that responders have a duty of care to people in medical emergencies.

Kueng and Lane, she testified, acted inconsistently with that training when they continued to restrain Floyd after he became compliant and showed clear signs of needing help, including struggling to breathe.

When Mackenzie was asked about Thao, his attorney’s objection was sustained because Thao was not present in the video shown by Mackenzie.

That attorney presented PowerPoint training materials used by MPD until last year showing officers pinning a man down by his neck when responding to an excited delirium call and another showing a nude man punching through a wooden fence and fighting off a horde of police officers trying to subdue him. Under those circumstances, Mackenzie said, “your normal techniques for compliance might not work” and restraining someone, even with a knee, might be a life-saving measure.

Vik Bebarta

Another prosecution expert witness was Vik Bebarta, professor of emergency medicine, toxicology and pharmacology at the University of Colorado in Denver. She testified that Floyd died from “a lack of oxygen to his brain” when he was “suffocated and his airway was closed [and] he could not breathe.” “When the airway is blocked, you pass out, stop breathing and your heart stops.”

In addition, he said that the amounts of methamphetamine and fentanyl were too low to have caused his death. Videos of Floyd in Cupp Foods before the encounter with the police outside showed him carrying a banana and talking to clerks and other customers. Floyd was alert. “There is no sign that he was showing any signs of an imminent drug overdose.”  In contrast, someone “heavily impaired would not laugh or smile or have a conversation.” In addition, Floyd subsequently was able to walk handcuffed with police from his car to the police car across the street.

Bebarta also said Floyd did not display any symptoms typically associated with the excited delirium condition, such as high pain tolerance, superhuman strength and endurance and he did not die from what would be referred to as that condition.

Under cross examination, Bebarta admitted that police officers do not have the education and experience of medical doctors, but they learn basic life support and “have the ability to check a pulse and check for breathing.”

Bebarta also noted the three-minute lag between (a) paramedic Derek Smith’s arriving on the scene and checking Floyd’s carotid artery for a pulse  and (b) the start of chest compressions in the ambulance when every minute of delay in starting CPR reduces a patient’s chances of survival by 10%.

Under cross-examination by Paule, Bebarta says the slang “speedball” refers to Heroin and cocaine. Sometimes people “rectally” take drugs that sometimes is referred to as “hooping.” “Excited delirium” is not a diagnosis and does not have a good list of symptoms, but often shows as agitation with psychosis. Floyd did not exhibit delirium.

McKenzie Anderson

A scientist with the Minnesota Bureau of Criminal Apprehension, Anderson was in charge of processing Floyd’s car and one of the squad cars on May 25, 2020. She testified that pills found in his car tested positive for methamphetamine.

Under cross-examination by Gray, Anderson says on 5/27/20 she seized from Floyd’s car: shoes, strap and blood stains. She did not see or seize any pills. This search was looking for blood evidence, counterfeit money and a cell phone.

She also said that a lab determined that a pill from the squad backseat contained methamphetamine and Floyd’s saliva and thus probably came from his mouth. From Floyd’s car she seized $20 bills that turned out to be counterfeit, which are illegal to possess.

In a December 2020 search of Floyd’s car, she collected two pills that later were identified as a “mixture of fentanyl and methamphetamine.”

Richard Zimmerman

A MPD Lt. and its most senior officer, Zimmerman sais if an officer (from lowest in rank to chief) sees another officer using too much force or doing something illegal, you need to intervene and stop it.

On 5/25/20 at home, he received call to go to 28th & Chicago because an arrestee had to go to hospital. There he met officers outside Cup Foods about 90 minutes after Floyd died. He asked Lane and Kueng what’s going on.

Thomas Lane’s body cam video showed him telling Zimmerman that they did not know Floyd’s condition and that Floyd seemed like he was on something, “just kind of paranoid.” Nor did Lane say that Floyd had been pinned under Chauvin’s knee for more than nine minutes or that the officers could not detect Floyd’s pulse or that he had appeared to stop breathing.

Zimmerman testified, “The knee on the neck—the officers should have intervened at that point and stopped it. . . . It can be deadly.”  And “rank and seniority don’t change the duty to intervene.” Moreover, Zimmerman admitted he had thought poorly of Chauvin and “I think it’s pretty much known throughout the department that he’s a jerk.”

Kelly McCarthy

McCarthy, the Mendota Heights Police Chief, testified in his role as Chair of the Minnesota Board of Peace Officer Standards and Training, which licenses all officers in Minnesota. He said, Once someone is in your custody [as an officer], they are essentially your baby. You have restricted their freedom of movement. . . so there are things they can no longer do for themselves, so because you’re the one who took them into custody, you are now responsible for those things.” These officers’ training includes learning about “positional asphyxia” and the risk of handcuffing someone, use-of-force and civilians’’ constitutional rights. Training on use-of-force and firearms is annually required.

Alyssa Funari

On May 25, 2020, Ms. Funari, then 17 years old, was at Cupp Foods and observed the police restraining George Floyd on the pavement. His distress, she testified, was obvious to several bystanders, as they observed the policemen ignore pleas to relent and render aid. She said she “instantly knew Floyd was in distress. . . He was moving, making facial expressions that  he was in pain. He was telling us he was in pain.” She warned the officers that Floyd was near unconsciousness. At one point, she “observed that over time he was slowly becoming less vocal and he was closing his eyes. He wasn’t able to tell us he was in pain anymore and he was just accepting it.” She said, “Is he talking now? He’s about ready to knock out.” Yet she did not see any of the officers provide aid to Floyd.

Under cross examination by Thao’s attorney, Robert Paule, Funari said, I “believe he [Thao] did look” at the other officers restraining Floyd. “He might not have been watching the whole time, but he knew what was going on.” He turned around “a few times” to observe the other officers and Floyd .

Matthew Vogel

A FBI special agent, Vogel presented snippets of bystander and police video with timelines and transcripts to help the jurors sort out sometimes confusing videos. It included video of Kueng and Lane talking to Sergeant David Pleoger about what had happened, but saying incorrectly that Floyd was still breathing when paramedics arrived and not saying anything about their inability to find Floyd’s pulse.

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[1] Federal Criminal Trial for Killing of George Floyd: Prosecution Witnesses (Part I), dwkcommentaries.com (Feb. 2, 2022).

[2] Olson, Pulmonologist says officers could have saved George Floyd’s life, StarTribune (Feb. 7, 2022); Karnowski & Webber (AP), Lung expert: Officers could have saved George Floyd’s life, AP News (Feb. 7, 2022); Mannix & Olson, Officers ‘inconsistent’ with medical training when they detained George Floyd, says police trainer, StarTribune (Feb. 8, 2022); Karnowski (AP), Police trainer testifies: Officers failed to aid Floyd, Twin Cities Pioneer Press (Feb. 9, 2022); Olson, Second physician testifies George Floyd died of asphyxia, not drugs or heart attack, StarTribune (Feb. 9, 2022); Karnowski (AP), Toxicologist: Drugs, ‘excited delirium’ didn’t kill Floyd, Assoc. Press (Feb. 10, 2022); Xiong & Olson, New footage played in federal trial shows officers did not tell superior that Floyd had no pulse, appeared to stop breathing, StarTribune (Feb. 10, 2022); Karnowski (AP), Lieutenant: Officers should have intervened in Floyd killing, AP (Feb. 10, 2022); Bailey, Officers charged in George Floyd’s killing omitted key details from the scene, Minneapolis officer testifies, Wash. Post (Feb. 10, 2022); Olson & Xiong, New body camera video: Officers didn’t tell second supervisor about restraint of Floyd, StarTribune (Feb. 11, 2022); Forliti & Karnowski, Teen bystander: Knew instantly Floyd was ‘in distress,’ Asoc. Press (Feb. 11, 2022); Live: Federal trial of 3 former Minneapolis officers in George Floyd death, StarTribune.