During the segment, I took up this AP story conveying an allegation of racism in the striking of juror 76. I find fault with the AP story for omitting Judge Cahill’s express finding that the striking of the juror by the defense was made in good faith for a legitimate nondiscriminatory reason. (The AP reporter whom I referred to in my comments is not one of the story’s two authors.)

Judge Cahill took the bench promptly at 8:15 yesterday as promised to announce his rulings on pending motions. Consistent with my previews on Justice & Drew and in my daily updates here, he denied Chauvin’s motions for change of venue and continuance. He shut down the State’s effort to introduce expert testimony from Dr. Vincent on George Floyd’s state of mind during his arrest on May 25, 2020, and granted Chauvin’s motion to admit some of the evidence deriving from Floyd’s arrest in May 2019. The video below includes Judge Cahill’s announcement of his rulings followed by comments from KARE 11’s Lou Raguse.

In his denial of the change of venue motion, Judge Cahill conceded his surprise at the effect of the city’s $27 million settlement of the wrongful death lawsuit brought in federal court on behalf of Floyd’s family. Via Zoom Judge Cahill himself examined each of the seven jurors seated before the announcement of the settlement by city officials at the end of last week. Based on his voir dire regarding their awareness of the settlement and its impact on them, Judge Cahill dismissed two of the seven previously seated jurors for cause.

He took this as illustrative of the problem of publicity that permeates the case and threatens Chauvin’s right to a fair trial, but deems the problem irremediable by change of venue. He counts on the process of voir dire to filter out jurors who have been unduly affected by the publicity and on the jurors’ avoidance of news on the case during their service to protect Chauvin’s fair trial right.

The law on venue addresses pretrial publicity. Late Thursday afternoon defense counsel Eric Nelson filed a memorandum of law along with three related exhibits (here, here, and here) supporting his new trial/change of venue motion. They go into some detail on the pervasive pretrial publicity in the Twin Cities.

Pretrial publicity obviously raises a serious fair trial problem. It may render a fair trial impossible. It has nevertheless been dealt with in voir dire and is a problem that is usually within the capacity of the judicial system to cope. Moreover, it raises the question of an alternative venue within Minnesota that is not susceptible to an obvious answer.

The deepest fair trial problem in this case, however, may be manifest in the closure of the courthouse and the martial security that now protects it. Voir dire has explored this problem to a limited extent as well, but I wonder if the judicial system is capable of dealing with it. I doubt it.

Following a break juror number 96 was called for voir dire. She learned of the settlement of the wrongful death lawsuit via a scrolling headline on television but said it had no impact on her. She described herself as a lover of dogs with a passion for the homeless and the issue of affordable housing. She takes nature walks to relax. She finds the court’s security arrangements reassuring.

She has seen clips of the video on the news two or three times. In her juror questionnaire she imputed the cause of Floyd’s death to his restraint by the police, but said she could set her opinions aside in this case, She described her opinion of Chauvin as “somewhat negative.” At this point in my notes, I wrote that I would want to strike her but she’s going to be the thirteenth juror, and that’s what she is.

She expressed sadness that a person lost his life over a $20 bill, but freely conceded that she didn’t know “what happened prior.” She thought “maybe there could have been a different outcome.”

She strongly agrees with the proposition that the police make her feel safe and strongly trusts the police. “We need law enforcement,” she said, citing the damage her place of employment sustained during the riots following Floyd’s death and its subsequent closure for a week. This case has touched an incredible number of us. Fearing riots and destruction all over again, to my point above, she expressed nervousness about the consequences of the verdict in this case.

She feels the magnitude of the responsibility of taking in the evidence and render the verdict in this case. She expressed the view that there are “strong opinions on both sides.” Despite my doubts about her above, taking all her remarks together, I thought she sounded perceptive and fair. Nelson passed her for cause. After further voir dire that added a bit more of interest — she doesn’t buy the racial critique of the police and the justice system — Steven Schleicher passed her for cause on behalf of the State. When she was seated as the thirteenth juror in the case, the court advised us she is a white woman in her 50’s.

The rest of the day was devoted to voir dire of jurors 99, 103, 109, 110, 111, and 113. We came away empty-handed. All but jurors 109 and 111 were excused for cause.

Juror 109 was subject to a peremptory strike by the prosecution and number 111 by the defense. Juror 111 is a St. John’s college student who works in a bar in St. Joseph, Minnesota. He is an intelligent all-American young man who is woke to the nth degree. He added to my doubt about the future of the United States. I thought the defense had to strike him and Nelson did.

Juror 113 sounded like another young man. He was carjacked in St. Paul on February 11 “next to Macalester College,” a beautiful neighborhood I have reason to visit every week. He expressed reservations about his ability to credit police testimony equally with that of other witnesses. Examined by Schleicher on this point, he could only get 95 percent of the way there. He was excused for cause on Nelson’s motion.

Judge Cahill announced that jurors 101, 106, and 107 have been excused by agreement of the parties while juror 102 was excused as no longer qualifying for jury service in the case.

At the end of the day, Judge Cahill caused some confusion among the reporters including me when he stated that they would be looking to add two more jurors next week to the 13 now seated. Judge Cahill had initially given the number as 16, then as 14. Following our expression of confusion the court advised us that “in accordance with its November 4, 2020, order, the Court will [seat] up to 16 jurors for the trial in the case State of Minnesota v Derek Chauvin.”

CHAUVIN TRIAL DAY 11

When I was trained as a trial lawyer defending companies in personal injury litigation, I was instructed by one of my mentors at the firm that we wanted to avoid post office workers on the jury. His advice became something of a standing joke. It may even have been a standing joke at the time I joined the firm, but watching voir dire in this case over the past two weeks has brought it back to mind.

We haven’t had a post office worker so far, but we have had public school teachers. They have proved to be the functional equivalent of post office workers in this case as to defendant Derek Chauvin, but then again, who in Hennepin County isn’t?

The State has invested in jury consultant Christina Marinakis to advise the numerous lawyers working to put Chauvin away. She has been in court at the counsel table every day so far. Given the fact that the average Hennepin County juror comes in with a negative attitude to Chauvin and a hostile opinion of his conduct in the famous video, I wonder why her services are necessary.

They are necessary because, whatever the outcome, Attorney General Keith Ellison doesn’t want his handling of the case to be second-guessed. He wants to be able to say he did everything in his power to convict Chauvin of the murder of George Floyd. After all, he’s up for reelection next year.

I take it from the examination conducted so far that the optimal juror for the prosecution is a public school teacher. Defense counsel Eric Nelson has rightly struck the two who have been called for voir dire. They would have been a nightmare for the defense.

I’m sure Ms. Marinakis has gone over the juror questionnaires and rendered a sophisticated assessment of who is most likely to have an open mind to Chauvin’s defense. Jurors with an open mind to Chauvin’s defenses are the best that he can hope for and the State is making sure that they stay off the jury. The State exercises its peremptory strikes on them.

Does any prospective Hennepin County juror really have an open mind on Chauvin? We found one yesterday, but he won’t be on the jury. The optimal defense juror is the deer hunter. He was juror number 116.

When juror number 116 identified within the first minute or so of his examination by Nelson as an avid fisherman — he fishes competitively — I guessed he would be good for Chauvin. He also identified in response to Schleicher’s examination as a deer hunter.

He had heard about the settlement of the wrongful death lawsuit and was concerned about the safety of his family in the event he served on the jury, but his view of Chauvin was “neutral.” Further, his view of Black Lives Matter was “somewhat unfavorable.” Why? Because he “doesn’t think that riots help.” He didn’t necessarily want to serve as a juror, but he felt that he could “absolutely” be fair and impartial. Schleicher spent a few minutes following up before using a peremptory challenge to strike him.

I start with juror number 116 stuck because he stuck out. Chauvin didn’t have a crack at many like him over the past two weeks and it didn’t take Schleicher long to figure that the State didn’t want him. I hope they didn’t pay the big bucks for that advice.

I thought the prosecution counterpart to juror number 116 yesterday was juror number 118, but she made it onto the jury. She was the fourteenth juror seated in the case. Having been passed for cause by both Schleicher and Nelson, she will serve as an alternate.

After her selection, we were apprised by the court that she is a white woman in her 20’s. She too professed indifference about her possible service on the jury. When she identified at the outset as a social worker, however, I thought Nelson needed to strike her. She sounds like an honest and empathetic woman. If you were in trouble, you would want to seek help from her.

She wants to hear everyone out. She wants to hear both sides of this case. Her impressions of both George Floyd and Derek Chauvin were “somewhat negative to neutral.” She wondered what prompted Chauvin to place his knee on Floyd’s neck. She wants to hear about Chauvin’s police training. As a social worker, she was trained to support everyone and extend “basic respect” to all. Based on her training as a social worker, she looks at every side of the issues she deals with.

She must live in the Minneapolis suburbs. When the riots hit following Floyd’s death, she was afraid of the migration of the violence to the suburbs. She also must have a handle on the reality principle insofar as she is concerned about her identification as a juror. However, she assured Nelson that she would not allow her concerns to affect her verdict. I would have wanted to hear more about that.

When Nelson passed her for cause, it was obvious she would pass muster with the prosecution. I don’t think you need a jury consultant to tell you that a social worker fits the profile of a juror who is likely to be favorable to the prosecution. Without knowing anything about the prospective jurors who are up next, I thought Nelson should have pressed her harder on the question of fear and on her commitment to impartiality. I thought he should have struck her if he couldn’t make out a challenge for cause.

We began the day with juror number 115. She was probably the true counterpart to the deer hunter. She is a nursing assistant who expressed no concerns for her physical safety. She was okay with the release of her name by the court at some point in the future when it is deemed safe. I take it that she does not contemplate a possible not guilty verdict and related consequences.

Her view of Chauvin is “somewhat negative.” George Floyd should not have had to die. It “was not his time to go.”

Did we need more? She participated in one of the protests within a week of Floyd’s death. She made a sign to march with a friend in the protest. (I missed what the sign said.)

She strongly agrees that blacks are not treated equally in the criminal justice system. Where did she get the information to support her opinion? She took a “gendered woman studies class in college.” Need I add that her opinion of Black Lives Matter is “very favorable.”

As Roberto Duran put it, “No más!” I don’t think Judge Cahill would have granted a challenge for cause, but Nelson didn’t try. He used a peremptory strike on her.

Juror number 117 confessed that her English was insufficient to follow expert testimony or even instructions in the law such as the presumption of innocence. Judge Cahill excused her for cause on his own motion.

Like everybody else, juror number 119 had heard about the world-beating settlement of the case by the city of Minneapolis for $27 million. He conceded that it affected his view of the case. He understood the presumption of innocence but he didn’t think he could afford it to Chauvin. Judge Cahill excused him for cause on his own motion.

Ditto juror number 120.

Juror number 121 presented as another case study in the profile of a juror adverse to Chauvin despite professing to be fair and impartial. He has worked in a retail warehouse for three years. He wants to serve as juror in the case and he has strong opinions about it.

When he described himself early on as interested in philosophy and social issues, I thought Nelson would have to strike him. The alternative title of Nietzsche’s Twilight of the Idols is How to Philosophize with a Hammer. This guy wanted to philosophize with a hammer on the jury.

He has watched the bystander video. He has watched the body cam video. He has a “very negative” opinion of Chauvin. He was of the view that Chauvin “used unnecessary and excessive force.” He thought that Floyd’s death resulted from it. And so on, and so on.

Yet he professed his ability to be neutral. In a sidebar out of our hearing, Nelson moved to strike him for cause. Judge Cahill denied the challenge for cause but expressly found that the juror was evasive and lacking in credibility.

Nelson exercised another of his peremptory challenges to strike the juror and cited the Minnesota Court of Appeals’ McKinley case in support of his challenge for cause (“A district court does not err when it sustains a for-cause challenge of a juror…because the juror is untruthful, evasive, or lacking in candor during voir dire”). In response, Judge Cahill stated that he would revisit the question if Nelson ran out of peremptory challenges while we remain in search of the fifteenth juror — the third alternate — today.

The court is calling in twelve prospective jurors in search of a third alternate who will be released next Monday if the other fourteen show up. When we find the third alternate today, we will take a break until the commencement of the trial proper with opening statements next Monday.

In the summary provided by the court after juror 118 was seated, here are the fourteen jurors — the twelve regular and two alternates — who will decide this case:

• No. 2: white male; 20s
• No. 9: multi/mixed-race woman; 20s
• No. 19: white male; 30s
• No. 27: black male; 30s
• No. 44: white woman; 50s
• No. 52: black male; 30s
• No. 55: white woman; 50s
• No. 79: black male; 40s
• No. 85: multi/mixed-race woman; 40s
• No. 89: white woman; 50s
• No. 91: black woman; 60s
• No. 92: white woman; 40s
• No. 96: white woman; 50s
• No. 118: white woman; 20s

CHAUVIN TRIAL DAY 12

In part 11 of this series yesterday I concluded that juror 116 — the deer hunter — filled out the profile of the optimal juror for Derek Chauvin. The prosecution exercised a peremptory challenge to strike him, as it has the few other prospective jurors who turned up with a neutral view of Chauvin and a mind open to his defenses.

Juror number 127 proved even better for Chauvin than the deer hunter. He was so good that Judge Cahill upheld the prosecution’s challenge to him for cause. He is a former over-the-road trucker who made a career change at age 50. Having found an apprentice program that served his needs, he now works in construction as a pipefitter.

He is hostile to the media based on their political agendas of one variety or another. He emphasized how “put off” he is by the media “trying to influence him.” He also emphasized his impartiality. “The evidence,” he said, should “stand on itself.”

As I guessed at this point, he is deeply in tune with the reality principle. He would have worried about the threat to his personal safety posed by jury service. Why? “After viewing Lake Street and all that, it’s concerning.” Lake Street is the heavily damaged east-west thoroughfare running through the heart of south Minneapolis that was targeted in the riots and looting following the death of George Floyd last year.

“I don’t want to be afraid to make the right choice,” he added with respect to the verdict he would render. “It’s not about them, it’s about a person’s life right now.”

This was the ideal juror for Chauvin. He respects and appreciates the police. Indeed, on a related point in the juror questionnaire, he pungently expressed his hostility to the movement to defund the police as “lunacy.”

I could go on, but let me cut it short. His favorable attitude toward the police and the testimony they would give made him the subject of a challenge for cause by prosecutor Steve Schleicher, the outside attorney contributing his services to Chauvin’s prosecution by the State. Judge Cahill upheld Schleicher’s challenge to him for cause under the Minnesota Supreme Court’s Logan case.

After Judge Cahill excused him for cause, he announced that he had thought about the defense challenge to juror 121 for cause overnight and revisited the Minnesota Court of Appeals decision in the McKinley case cited by defense counsel Eric Nelson on Monday. Based on McKinley Judge Cahill retroactively restored the peremptory challenge Nelson had exercised to strike him and upheld Nelson’s challenge to him for cause. As it turned out, however, Nelson had no occasion to use it.

Juror number 129 is the mother of three. She had concerns about the safety of her family if she were to serve in the case. She was extremely nervous stating her views as a potential juror. Judge Cahill examined her off audio and excused her for cause on his own motion. I inferred that her family responsibilities had something to do with it.

Juror number 130 reverted to a profile closer to the norm in this case. He was active in the protests that followed Floyd’s death. The video and “everything [he] saw” affected him. He conceded that he would probably be lying if said he could be fair and impartial to Chauvin. Judge Cahill also excused him for cause on his own motion.

I thought we would come away with the fifteenth juror that Judge Cahill wanted before noon. We were running up against my imaginary deadline with juror 131. He is an accountant with plans to move out of the state at the end of May. He is interested in sports. I understood him to have a stake in the NCAA men’s basketball tournament.

He is familiar with the facts of the case and the video from news accounts. He has a “somewhat negative” impression of Chauvin and his fellow officers during Floyd’s arrest. He thinks the duration of Floyd’s restraint “may have been unnecessary.” He has a neutral impression of Floyd. I assessed him in my notes at this point as a tough juror for Chauvin.

At work, he has discussed what can be done “to end racism.” He wants to do his part. He started by reading a book on the subject — what book? he couldn’t remember — but he didn’t quite finish it. He thinks that blacks are treated unfairly in the criminal justice system.

He holds himself out as an analytical person. He droned on in a monotone that sounded like a parody of an accountant. He stated that he would focus any decision on the evidence produced in court. I have in my notes that I don’t believe him, but I can’t articulate why. Nelson passed him for cause at this point.

I think Schleicher and the State’s jury consultant must also have assessed the accountant as favorable to their case. Schleicher’s initial questions to him asked about the new puppy he and his wife have taken on. Schleicher seemed to be killing time until he passed the juror for cause as well.

Schleicher elicited the juror’s attitude toward athletes taking a knee during the national anthem. He is not crazy about it. He would prefer the expression of their views in a different form but understands their intention.

He is not altogether on board with Black Lives Matter. He doesn’t hold them responsible for the rioting but thought they may have contributed to it. He strongly disagrees with defunding the police. “They perform a valuable service to society,” he said. As for Blue Lives Matter, “They haven’t done enough to change the conversation” on “equality and gun control.”

As I say, I think Schleicher was killing time. Just before my imaginary noon deadline, Schleicher passed him for cause. He is the fifteenth juror Judge Cahill wanted in case any of the first fourteen don’t show up for opening statements on Monday. The courtroom as reconfigured to meet public health recommendations can only accommodate fourteen jurors.

Court is adjourned until Monday. Here are the final fifteen jurors — the first twelve are regulars, the others alternates — presented by the court:

• No. 2: white male; 20s
• No. 9: multi/mixed-race woman; 20s
• No. 19: white male; 30s
• No. 27: black male; 30s
• No. 44: white woman; 50s
• No. 52: black male; 30s
• No. 55: white woman; 50s
• No. 79: black male; 40s
• No. 85: multi/mixed-race woman; 40s
• No. 89: white woman; 50s
• No. 91: black woman; 60s
• No. 92: white woman; 40s
• No. 96: white woman; 50s
• No. 118: white woman; 20s
• No. 131: white man; 20s

Court TV has compiled a retrospective on the jurors each side has removed through peremptory strikes. The talking heads of CourtTV are in search of a racial angle. The jurors struck by Schleicher on behalf of the State are all white. The jurors struck by Nelson make up a rainbow coalition adverse to Chauvin in one way or another, but I don’t think that’s quite how Court TV put it. I call the ten-minute Court TV video “A toast to those who are gone.”

After Jury Selection, The Formal Trial Began On Monday, March 29th

Chauvin Trial Day 1 (Updated)

I have been struggling with a bug that has sapped my energy and shortened my day yesterday. These notes are accordingly abbreviated.

On Sunday I complained that the Star Tribune sought to bypass the issues in the case in the interest of framing it as a (racial) passion play. The Star Tribune is of course not alone in this regard, but is it really needed or illuminating at this point?

The Sunday page-one story I cited was written by reporters Reid Forgrave and Maya Rao. On Monday, however, the Star Tribune published reporter Chao Xiong’s examination of the cause of death issue in George Floyd’s cause of death at heart of arguments in Chauvin trial.”

When I saw Chao yesterday morning I congratulated Chao on the story. He told me he had a hard time finding people who would talk to him for it. Given my comments on Sunday, I want to note it for the record.

All fifteen jurors selected showed up to sit on the case yesterday morning. Judge Cahill dismissed the fifteenth juror selected before swearing the fourteen in. The fifteenth was the third alternate.

In my rundown on the jury on Sunday, I assumed that the first twelve jurors serve as the regulars who will deliberate on the verdict if they make it to the end and that jurors thirteen and fourteen are alternates. I assume that to be true even though no such announcement has been made.

Jerry Blackwell is one of the attorneys contributing his services to the prosecution without charge. He made the opening statement on behalf of the State yesterday. I have embedded the video below.

Although I was surprised by his detached tone, I thought Blackwell did an excellent job. I was not surprised by his use of the famous bystander video that everyone has seen.

An opening statement is not argument. It is to be limited to a summary of the evidence that will be introduced in the case. It should provide a roadmap to the case the attorney will present to the jury.

The underlying message of Blackwell’s opening is that the State has a ton of evidence they will introduce to prove up the charges against Derek Chauvin. Among the witnesses who will testify against Chauvin are the Minneapolis Chief of Police and other Minneapolis police officers.

The theme of his opening was a relentless: 9:29. Nine minutes and 29 seconds is the length of time Chauvin had his knee on George Floyd’s neck.

Blackwell buried the issue of Floyd’s drug intoxication at the time of the incident until somewhere near the end of his remarks. According to Blackwell, Floyd’s years of drug abuse had rendered him tolerant of the levels found in his system following his death.

Blackwell anticipated and undercut the testimony of Hennepin County Medical Examiner Andrew Baker. He will call a raft of experts to deal with it, including a doctor who trained Dr. Baker as a medical examiner.

Blackwell’s opening went on for around 55 minutes. Although there was thematic repetition, the themes were effective and the substance was powerful.

Defense counsel Eric Nelson immediately followed Blackwell. I have embedded the video below.

When Nelson rose to speak I wanted to hear what his case was — what he would prove on behalf of Chauvin. Nelson began, however, by invoking reasonable doubt. This is a confession of weakness. I cannot imagine a weaker point with which to lead off.

Nelson did nothing to set the video in the larger context afforded by the body cam videos. He did nothing to exploit the holes in Blackwell’s opening. Maybe they aren’t holes.

Nelson discussed the evidence of Floyd’s drug intoxication and consumption at the time of the incident. The prosecution contends that Chauvin asphyxiated Floyd. Nelson referred to the paucity of physical evidence on autopsy supporting asphyxiation. The State wasn’t satisfied with Baker’s work, he said, so they contracted other physicians for this case.

Nelson finished in about 23 minutes. All in all, I thought it was a perfunctory performance.

Following the opening statements the State called three witnesses. The first was dispatcher Jena Scurry. The direct examination by Assistant Attorney General Matthew Frank was a plodding bore, but she was a good witness for the State. Watching the scene unfold at 38th and Chicago on a video monitor in her office, she thought “something wasn’t right.” She called the cops — MPR sergeant David Fleeker (I’m not sure how his name is spelled) on the cops.

Next up was bystander Alisha Oyler, who was working on May 25 at the Speedway Station across the street from Cup Foods. Although she took several videos, she professed not to remember much about the events. Are you kidding me? She was a terrible witness except insofar as she gave the State the opportunity to replay the famous bystander video by juxtaposing it with Oyler’s.

At this point I headed off for an urgent care visit. I watched the testimony of martial arts expert David Williams II on my cell phone. Williams was a bystander on the scene at the time of the incident. He can be heard on the video. I didn’t realize that martial arts experience made him an expert on cause of death, but he opined on the “blood choke” he observed Chauvin working on Floyd. He watched it kill him like a fish.

Williams’s testimony beyond his observations at the time are objectionable in my opinion, [UPDATE: but Judge Cahill disagrees. See his order on defendant’s motions in limine paragraph 22. I regret this oversight in my original comments here. Consistent with his ruling, Judge Cahill struck Williams’s assertion that Chauvin’s choke killed Floyd, but the jury heard it.]

This guy is a devastating witness for the State. Williams continues this morning.

NOTE: In the interest of clarity I have retitled my previous 12 installments to reflect their focus on jury selection. I am starting the numerical sequence over with this installment to reflect the first day of the trial proper.

Chauvin Trial Day 2

Minnesota martial arts practitioner Donald Williams returned to the stand and concluded testimony that began Monday afternoon. He reiterated his observations culminating in Floyd’s death: tremendous pain in Floyd’s face, his eyes rolling back in his head, his mouth open, drooling, gasping for air. All the while Chauvin kept his knee on Floyd’s neck, Williams’s “energy” did not let him feel he could intervene. After Floyd was loaded into the ambulance, Williams called 911 believing he had witnessed a murder.

The scope Judge Cahill afforded Williams on direct examination required penetrating cross-examination. I didn’t think defense counsel Eric Nelson rose to the occasion either in his attempts to distinguish mixed martial arts from police restraint or in his recitation of the vulgar names Williams had called Chauvin as Floyd lay prone under Chauvin’s knee. Like the bystanders who followed Williams to the stand, I thought Williams’s anger was understandable given his perception of what he had witnessed.

Williams drew on his training in mixed martial arts to speak with authority on the issues in the case. He referred to his education at “the academy” (of mixed martial arts) and his experience in the ring as “an artist.”

An attorney friend wrote me to comment on Judge Cahill’s admission of Williams’s testimony about chokeholds and related issues. He thought Judge Cahill should not have allowed it, but suggested that Nelson’s cross should have pounded away at key points:

The easy stuff–you are not a physician, not a pathologist, have never seen anyone asphyxiated….

You have never conducted an autopsy and have no idea how to do one.

In your opinion did you assume that Floyd’s breathing was normal before he was restrained by Chauvin?

Did you assume his lung function was normal?

Did you consider whether he was suffering from fentanyl intoxication?

Did you consider whether his lungs had an abnormal amount of fluid in
them due to fentanyl and were not functioning properly?

Mr. MMA you understand that here in Hennepin County when anyone dies under suspicious circumstances the County Examiner, who is a pathologist, conducts an autopsy?

You are not asking this jury to consider your opinion of the cause of
the death of Mr. Floyd as equal in weight to the official autopsy by
the Hennepin County Medical Examiner.

The point is that Williams’s pretensions to expertise should have been punctured on cross. I don’t think Nelson put up a fight on the basic points.

After Williams we heard from five more bystanders whom I want to take up as a group:

1. Examined by Jerry Blackwell, Darnella Frazier just turned 18. She is the teenager who recorded the video that approximately everyone saw after she disseminated it via Facebook. The prosecution took her testimony as an opportunity to review the video. She was choked with emotion throughout her direct examination. After Nelson asked her on cross whether the video had changed her life — why? I don’t know — Blackwell had her fill out the details on redirect. She sees Floyd as her father, her cousins, her brothers, her uncles, her friends because they are all black. “And I look at that and I look at how that could have been one of them. It’s been nights I stayed up apologizing and, and apologizing to George Floyd for not doing more…”

2. Darnella’s nine-year-old cousin Judea testified briefly without cross-examination. Judea can be seen in photos and stills with Darnella. She was wearing a t-shirt with LOVE printed on it. Judea saw Chauvin with his knee on Floyd’s neck. What she saw made her “sad and kinda mad.”

3. Examined by Assistant Attorney General Erin Eldridge, Alyssa is another 18-year-old bystander who recorded video of the scene. She lives in the neighborhood and went to Cup Foods with her friend Kailyn to buy snacks and an aux cord for her car. She saw Chauvin with his knee on Floyd’s neck, and two other officers holding him down. Alyssa’s testimony gave the prosecution another opportunity to play a video of the incident.

“At first he was vocal and then he got less vocal,” she said. “You could tell he was talking with smaller and smaller breaths, and he would spit a little when he talked, and he tried to move his head because he was uncomfortable.” She described Floyd’s descent into unconsciousness: “You could see in his face that he was slowly not being able to breathe, his eyes were rolling back, and at one point he just kind of sat there,” she said. “Or laid there.” Talking about it with difficulty, she cried. “It was difficult because I felt like there wasn’t really anything that I could do as a bystander,” she said. “I felt like I was failing him.”

4. Examined by Eldridge, Alyssa’s friend Kailyn accompanied Alyssa to Cup Foods on May 25. She lent Alyssa the cell phone she used to record her video of the incident. Alyssa asked her to remain in the car. A “gut feeling” prompted her to get out of the car. She heard Floyd calling out from under Chauvin’s knee. She felt that Chauvin’s restraint of Floyd wasn’t needed. She had a gut feeling Floyd was dead before the ambulance arrived. Seeing Chauvin reach for his Mace in response to the bystanders, she was afraid of him. Nelson passed on cross-examination.

5. Examined by Deputy Attorney General Matthew Frank, the last witness of the day was Minneapolis firefighter and EMT Genevieve Hansen. Her testimony continues this morning. She lives in the neighborhood of Cup Foods and was on a walk when she happened on the scene. She too took a video on the scene and called 911 after the ambulance left the scene to complain about the officers’ treatment of Floyd. It is evident that she is heavily invested in Chauvin’s conviction.

She walked around the scene after her arrival. She saw the officers restraining Floyd. She was concerned because he wasn’t moving and he was cuffed, with three men restraining him. His face was swollen and smashed into the ground. She noticed fluid coming from his body. She assessed Floyd as having an altered consciousness in which he was oblivious to painful stimuli. She identified herself as an EMT and wanted to render medical assistance. She wanted Floyd’s pulse to be taken. She is “totally distressed” she was unable to do so.

Nelson began his cross-examination. Among the points he made is that she didn’t know that the officers had already requested Code 3 medical assistance on the scene before Hansen arrived. Hansen said she didn’t believe it.

She is an argumentative witness, to say the least. She argued with Nelson. She argued with Judge Cahill. When she refused to relent, Judge Cahill excused her to return this morning. I’m embedding the two-hour video of Hansen’s testimony yesterday below. It begins at about 5:00 with Hansen’s video and the recording of her 911 call. Nelson’s cross begins at about 1:09:30.

The testimony of these bystander witnesses featured videos and photographs of the incident. The testimony was raw and emotional. I’m not sure why, but the witnesses were allowed to testify to the effect of the incident on them. I didn’t think that Nelson found a productive line of cross-examination on either Darnella or Alyssa. Hansen is another story.

Chauvin Trial Day 3

Firefighter EMT Genevieve Hanson returned to the stand for cross-examination by defense counsel Eric Nelson Wednesday morning. Did she show the officers on the scene identification as a firefighter? She did not. Nelson had nothing more for her. With a question or two more from prosecutor Matthew Frank on redirect — she believed George Floyd needed immediate medical attention, but the officers other than Tou Thao didn’t talk to her — she was released.

Frank then called 19-year-old former Cup Foods cashier Christopher Martin to the stand. In May 2020 he was living with his mother and sister in an apartment above Cup Foods while pulling his shifts at the store from 3:00-8:00 p.m. Martin’s testimony took us inside Cup Foods to observe the events leading to George Floyd’s fateful arrest on May 25. Frank drew on Cup Foods surveillance video from inside the store to accompany Martin’s testimony. This is a video we have not seen before.

The video shows Floyd hanging around in the store. He seems to have had his phone serviced in the store that day. He appears jumpy but genial in the video.

Martin chatted with Floyd before Floyd purchased cigarettes with the counterfeit $20 bill that prompted the call to the police. Based on Floyd’s delayed response to Martin’s question and his difficulty articulating, Martin figured Floyd was high. A few minutes later Martin sold Floyd a pack of cigarettes that Floyd purchased with a $20 bill that Martin thought was obviously counterfeit.

The rule at Cup Foods was that if an employee took a counterfeit bill it was docked from his pay. When Floyd left the store Martin raised it with his manager. Martin went out twice with coworkers to Floyd’s Mercedes to seek payment. They spoke to Floyd’s friend on the passenger side (I understood that he too had tried to pass Martin a counterfeit bill) while Floyd mimed “woe is me” in the driver’s seat.

At the manager’s instruction, one of the coworkers called the police. Two officers arrived and met with the manager, who showed them where Floyd was parked across the street.

Within a few minutes, Martin heard a commotion outside the store. He heard yelling and screaming. He saw Derek Chauvin with his knee on Floyd’s neck. He called his mom and told her not to come downstairs. He started a recording of the police subduing Floyd but deleted it after the incident. He said he was emotional watching the arrest, expressing “disbelief and guilt” over what he views as his contribution to it.

He saw the ambulance arrive and watched the officers and crew load Floyd onto it. Watching the ambulance head off, he thought they were not headed to the hospital and that Floyd had died. Martin is a credible and effective witness.

The State then called Christopher Belfrey. He too lives in the neighborhood. Forty-five years old, Belfrey is another of the bystanders who recorded a video of the incident leading to Floyd’s death, though his recording begins with Floyd’s initial arrest in the Mercedes. He was startled by the officer pulling a handgun on Floyd. He stopped recording and moved his car when he heard sirens approaching. He resumed recording. He said he felt “Kinda scared” when one of the officers stared at him. He thought the incident was over when he saw Floyd placed in one of the police squads and drove off with his fiance. Nelson let him go without cross-examination.

The State then called Charles McMillian. Sixty-one years old, Mr. McMilliam proved in his own way to be a devastating witness. He was a bystander who urged Floyd to cooperate with the police. He can be heard on the video telling Floyd “You can’t win.”

He began sobbing after prosecutor Erin Eldridge played police bodycam video of Floyd saying over and over that he couldn’t breathe and calling for his mother. “Oh my God,” Mr. McMillian said as he hung his head and cried. Hearing Floyd call for his mama, Mr. McMillian stated, “I feel helpless. I don’t have a mama either, but I understand him.” He said his mother died this past June. As events unfolded, his instinct told him “it was over for Mr. Floyd.”

The State played video we hadn’t seen before during McMillian’s testimony. He can be heard talking to Chauvin. He told Chauvin on the scene after Floyd’s departure that he was “a maggot.” He told Chauvin his knee on Floyd’s neck — “that’s wrong.” Chauvin responded he “had to control a sizable guy.” Again, Nelson passed on cross-examination.

The 47-minute video below captures all of Mr. McMillian’s testimony. It is well worth watching in its entirety.

Pro bono prosecutor Steve Schleicher called Minneapolis Police Lt. James Rugel to close out the day. Rugel runs the department’s technology unit. His testimony laid the foundation for the introduction of the department surveillance and bodycam video.

Without much in the way of commentary from Rugel, Schleicher played each of the officer’s bodycam footage of the incident leading to Floyd’s death. The video below includes Rugel’s foundational testimony as well as the bodycam video played for the jury.

The bodycam video is the first evidence of the larger context of the knee on the neck scenario. We haven’t heard much about it from either the prosecution or the defense. It’s easy to miss, but you can hear Floyd explaining his drug use — “I was just hooping earlier.” One of the officers describes Floyd’s eyes as “shaking back and forth really fast. Is that PCP?” I think it is Officer Kueng who observes to Floyd, “You’ve got foam around your mouth too.”

We see the officers try to get Floyd seated in the squad car. He is wildly resisting and yelling he can’t breathe. Somewhere along the way, it is noted that Chauvin’s body camera was under the squad car.

CHAUVIN TRIAL DAY 4

The State opened the day with the testimony of George Floyd’s girlfriend Courteney Ross. She discussed her relationship with Floyd dating to the day in August 2017 that he asked her how she was doing when she was waiting in the lobby of Harbor Lights to visit her son’s father. She recalled Floyd asking her, “Sis, you okay, Sis?” She said she wasn’t and he asked if he could pray with her. Floyd was working at Harbor Lights as a security guard.

Ross was called to provide so-called “spark of life” evidence regarding Floyd. Such evidence is admissible in a murder case to provide a human portrait of the victim. In this case, it presents one more factor contributing to the prejudice Chauvin must overcome to have his case determined on the facts.

The State also used Ross’s testimony to raise the issue of Floyd’s drug use in a sympathetic form. Both Ross and Floyd struggled with opiate addictions in the course of their relationship. She said that they both suffered from chronic pain and started with prescription opiates. They consumed illegally obtained oxycontin and oxycodone together off and on throughout their relationship.

On his fateful trip to Cup Foods Floyd was accompanied by Morries Hall (the man in red) and Shawanda Hall (the woman in the back seat). I take it from Ross’s testimony that they were Floyd’s suppliers. Earlier this week Morries Hall filed a notice that, if called as a witness, he would assert the Fifth Amendment.

In March 2020 Ross saw Floyd’s behavior change to reflect current drug use. They took bigger pills that month that had a stimulative effect on her. In early March she found him doubled over in pain, complaining that his stomach hurt. He was suffering an overdose — she apparently told the FBI it was a heroin overdose — requiring some five days in the hospital. Ross noticed foam around his mouth as she drove him to the hospital.

Floyd was using again in May 2020. The May pills had the same effect on her as the big pills they had previously consumed.

Ross was followed by three witnesses who provided emergency medical services to Floyd on May 25: Seth Bravinder, Derek Smith, and Jeremy Norton. What I got out of these witnesses in excruciating detail is that Floyd was dead when he was picked up at the scene and that efforts to revive him were unsuccessful. He had no pulse from the first time he was checked at the scene.

The State closed the day with retired Minneapolis police sergeant David Pleoger. I take it that Pleoger is one of the many Minneapolis officers who retired in the aftermath of Floyd’s death.

Pleoger is an important witness. He was the shift leader when Floyd died and took the call from Jenna Scurry asking about the use of force she observed on her monitor in the dispatch center. Pleoger evaluated the use of force under department policy as a routine part of his job. He went to the scene and interacted with the officers both at the scene and at Hennepin County Medical Center, where Floyd had been taken. Floyd’s death, however, elevated the case to superior authorities.

On Pleoger’s bodycam Chauvin is heard speaking with Pleoger about the incident at the scene: “Not really, but had to hold the guy down, he was going crazy. Wouldn’t go in the back of the squad.” Chauvin did not immediately disclose that he placed his knee on Floyd’s neck.

Schleicher elicited Pleoger’s opinion concerning the moment when the use of force against Floyd should have ended. He replied: “When Mr. Floyd was no longer offering up any resistance to the officers, they could have ended their restraint.” Pleoger agreed with Schleicer that it should have ended when Floyd was handcuffed and on the ground.

Prosecutor Steve Schleicher got the answers he wanted from Pleoger, but I thought his testimony was hedged in tone and unenthusiastic. The words came out right, but something was off.

I have posted the full video of Pleoger’s testimony below. The testimony begins at about 15:00. The testimony referred to immediately above comes at about 01:21:00.

 

Chauvin Trial Break

On Friday Minneapolis Police Department Lieutenant Richard Zimmerman took the stand. He is the department’s senior homicide investigator and its most senior officer period. He was called to the scene on the evening of George Floyd’s death. Having subsequently watched bodycam videos of the restraint of George Floyd, he found it unreasonable and excessive in relevant respects under department policy.

Zimmerman is an extremely credible witness. He seems to me like a character who might have walked off the TV series Homicide. Defense counsel Eric Nelson found no meaningful avenue of cross-examination with him. He is a strong witness in support of the prosecution.

I have not found a video of Zimmerman’s testimony in its entirety. The chunk below is the best I could do. It provides a substantial glimpse of how it went.

The Chauvin Trial So Far – 4/8/21

Here in Minnesota and around the country, all eyes are on the trial of former Minneapolis police officer Derek Chauvin for the alleged murder of George Floyd. We are nearing the end of the prosecution’s case, so this is perhaps an opportune moment to assess what has happened so far. While not listening to every moment of the testimony, I have followed the trial closely. Much could be said, but here are a few big-picture observations:

* The defense got off to a slow start. Eric Nelson, Chauvin’s only in-court lawyer, was rather passive during jury selection and, I thought, delivered a sub-par opening statement. But he has gained steam during cross-examination of the state’s witnesses, which he has done skillfully. And the jury has seen him as one fallible man standing against the immense power of the state. This might create sympathy in unexpected quarters.

* The state preemptively showed the officers’ body cam videos that revealed, not just the last minutes while Floyd was being restrained on the street, but the 20 minutes or so that preceded. This was certainly a revelation to most or all of the jurors. Based on their answers during jury selection, they had all seen the famous last nine minutes that were posted on social media by a bystander, but had no idea of how George Floyd, big and strong and out of his mind on drugs, had battled police officers to a standoff, culminating in their acceding to his demand that he lie on the street rather than sit in the back of their squad car while waiting for an ambulance. Jurors also were probably surprised to learn that Floyd had been foaming at the mouth and complaining of not being able to breathe from the moment when officers came on the scene.

* George Floyd’s girlfriend was a key witness. The state tried to present her as a let’s-go-for-a-walk-in-the-park flower child, but it soon became evident on cross-examination that she and Floyd were drug addicts. This was the first time the jury learned that Floyd’s death may have been caused by a fentanyl overdose, not by police officers kneeling on him. In fact, Floyd overdosed on fentanyl in March, just two months before his death, and spent five days in the hospital. Perhaps he took just a little bit more, a fatal overdose, in May.

* The state presented a parade of Minneapolis Police Department witnesses, including the Chief of Police, who threw Chauvin under the bus, alleging that he violated MPD policies in his restraint of Floyd. They were followed by use-of-force expert witnesses. But how did the jury view this testimony? Jurors may have been surprised to learn that there was nothing wrong with kneeling on Floyd on the street. That was consistent with MPD guidelines, and the experts agreed it was fine. Their complaint is that Chauvin and the others should have gotten off Floyd when he stopped struggling and grew quiet, and should have turned him over on his side. But there is no MPD policy that clearly states this. Rather, the Chief and other witnesses expressed their opinions as to how the broad, general use-of-force policy should be applied in this instance.

* So the state has effectively reduced its claims against Chauvin from nine minutes to four. I am willing to believe that it would have been better practice for Chauvin and the others to get off Floyd at some point, but seriously: failure to get off a guy who is crazed with drugs and has been battling with officers for 15 minutes, and more or less winning, is murder? or manslaughter? I don’t think that is an easy sell.

* Yesterday, a senior official of Minnesota’s Bureau of Criminal Apprehension testified. Nelson’s cross-examination was effective. He brought out the fact that the normal procedure is for the BCA to investigate a crime or alleged crime, and write a report. That report is delivered to the relevant authorities, who then decide whether to bring criminal charges against one or more defendants. But that normal procedure wasn’t followed here. Rather, criminal charges were brought almost immediately against Chauvin and the other officers, while the investigation was just beginning. Charge first, investigate later–that is how things proceeded, under political pressure. Watch for this to be a significant theme in Nelson’s closing argument.

* The other subtext of Nelson’s cross-examination was the sheer power of the state that is determined to destroy his client: 50 BCA officers, 27 FBI agents, 440 reports, hundreds of witnesses interviewed, and so on. Atticus Finch and his client Tom Robinson faced better odds.

* Moreover, embarrassing testimony emerged yesterday. Two vehicles, the SUV in which Floyd, his drug dealer, and a woman friend were seated, and the MPD squad car, were impounded and processed by the Bureau of Criminal Apprehension. But white pills in those vehicles were left unchecked. Why? Because the BCA didn’t realize that drugs were a factor in the case. It was only in January, as a result of a request by defense counsel, that the BCA finally identified and tested pills in one of the vehicles that turned out to contain fentanyl–a lethal dose of which was in Floyd’s blood when he died.

So, is there any chance that Derek Chauvin might be acquitted? As you can tell from these notes, I have become sympathetic to his defense. But it is too early to tell what conclusion the evidence will point toward.

The prosecution will conclude its case with expert witnesses on the cause of death, the key issue in the case. Did Minneapolis police officers kill George Floyd by kneeling on him, as the local and national press has relentlessly asserted for nearly a year? Or did Floyd die of a drug overdose, with the officers essentially bystanders? The medical evidence on both sides will be critical. We know that when he died, Floyd had something like three times a lethal dose of fentanyl in his system. How will the prosecution try to overcome that fact?

Again, the jury is likely to be surprised. Far from claiming that the officers’ kneeling on Floyd–entirely proper, at least for the first five minutes or so–killed him outright, I expect the prosecution will argue that the officers’ restraint was a contributing factor in the larger context of Floyd’s drug overdose and other health issues. Minnesota law says that a defendant can be guilty of manslaughter or murder if his wrongful conduct was a “substantial causal factor” in the decedent’s death.

When this trial began, I doubt that any juror expected the prosecution to argue that whatever Derek Chauvin did was not the sole cause, or the primary cause, of George Floyd’s death, but rather a “substantial causal factor” along with a fentanyl overdose and other serious health issues. Will the jury be willing to destroy Derek Chauvin’s life and send him to prison on this theory?

That raises, once again, the question of whether Derek Chauvin can possibly get a fair trial. Everyone knows that if the jury doesn’t convict, and probably if it doesn’t convict Chauvin of murder, the city of Minneapolis will go up in flames. This is why the power of the state is arrayed so unanimously against him. Chauvin may have misjudged, may have screwed up, for four minutes on May 25, 2020. But he is being sacrificed to raisons d’État.

Everyone is against him, including his own police department. The three officers who were with Chauvin on May 25, and who also have been charged, presumably won’t testify. Their lawyers will insist that they take the 5th–as, by the way, Floyd’s drug dealer did yesterday. The dealer was with Floyd on May 25 and pled the 5th on the ground that he may be prosecuted for supplying Floyd with the overdose of fentanyl that killed him. But the jury won’t see that.

The trial so far as been the world vs. Derek Chauvin and Eric Nelson. While the “dream team” prosecution has rotated counsel from the Attorney General’s office and various high-priced lawyers from Minnesota and D.C. who are working for free, Eric Nelson, outmanned and outgunned, has stood up alone for his client. Over the last two weeks, he has grown visibly tired and yesterday he lost control over some exhibits through sheer exhaustion. (No one who hasn’t tried a jury case, even one of relatively modest length like the Chauvin trial, can understand what hard work it is.) Maybe the jury will look down on him, compared with the well-heeled prosecution team. Then again, maybe they will relate to a classic underdog story.

The trial’s result likely will come down to the medical testimony on both sides that we have not yet seen. But so far, I think Chauvin’s defense has held its own and probably has surprised most members of the jury. The political class may have expected to usher Derek Chauvin off to speedy oblivion for the sake of a greater good, but instead, they have a fight on their hands.