CHAUVIN TRIAL - observations of the third week of the trial
Observations of week three of the Chauvin Trial – April 12-15, 2021
Day 11 of Chauvin Trial – Before the jury was brought into the courtroom, defense counsel requested that the jury be sequestered in light of the police killing of the 20 year old Black man (Daunte White – another name to add to the already too long list) the night before (which turns out to be a case of the police officer thinking she was firing a taser instead of her gun – stupid police) and subsequent demonstrations. The judge denied the motion. The defense has been asking for sequestration since the beginning and the Judge has resisted ruling that the jury will only be sequestered when they start deliberation. He anticipates the closing arguments will happen Monday, April 19th.
The first witness of the day was Dr. Jonathan Rich, a cardiologist who specializes in advanced heart disease and was testifying as an expert. He was called to explain how heart disease factored into the death of Mr. Floyd and he conclusively ruled it out. He also ruled out drug overdose as cause of death. Much of what he testified about has been discussed ad nauseum by prior experts, he just put the final nails in the coffin, so to speak. For some reason defense counsel decided to ask the expert to speculate as to whether Mr. Floyd would have died if he’d just gotten into the squad car without trouble. Dr. Rich, of course, said he would not have died. But then defense counsel tried to get him to say that he could have died of a heart attack or drug overdose without the police restraining him in a prone position. The doctor would not bite – he said no. On direct, he testified that Mr. Floyd would be alive today if it had not been for the conduct of the police. He also testified that there were many ways Mr. Floyd’s death could have been prevented, like if they put him on his side immediately or given him CPR immediately after they found no pulse. He also pointed out that Officer Lane asked two times whether he should be rolled over and Chauvin said, “No, just leave him.”
The afternoon session was quite short with Philonise Floyd testifying to provide the jury with a sense of who George Floyd was, to further humanize him. In the 15 minutes he testified he drew a loving picture of his brother who dearly loved his mother and 4 brothers and sisters, was an excellent athlete, and a friend and mentor to Philonise.
The next witness for the state was another expert. This one was Prof. Seth Stoughton, a law professor who studies regulation of policing. He was retained by the state to evaluate the case to give his opinion which was that the defendant never needed to put Mr. Floyd in the prone position and so his conduct was unreasonable, excessive and contrary to normal police practices. I suspect the purpose of his testimony was to provide the jury with a final exposure through video and audio of Mr. Chauvin’s conduct and statements uttered by Mr. Chauvin. The prosecutor showed many small clips that highlighted the discussions between the officers during the time they restrained Mr. Floyd. As Mr. Floyd’s speaking was slowing and his breathing was severely compromised, Officer Lane suggests they “roll him on his side.” Chauvin’s response was “no, he’s staying put.” That was approximately 4 minutes after Mr. Floyd was placed in the prone position with Chauvin’s knee on the neck. One minute later Lane says, “he’s passing out” and another minute later suggests to “roll him on his side.” Office Keung says “he’s not responsive right now” and Chauvin says, “huh?” Meanwhile Keung had checked Mr. Floyd’s pulse and tells Chauvin that he can’t find a pulse. The expert also discussed Chauvin’s failure to provide medical aid when it was clear that Mr. Floyd needed it.
On cross examination, Mr. Nelson pointed out that a prior expert, Sgt. Jody Stiger, said that putting Mr. Floyd in the prone position at the beginning was reasonable, which differed from Prof. Stoughton’s opinion. Of course, Sgt. Stiger also said that they should have put him on his side immediately after getting control.
Day 12 of Chauvin Trial – Morning Session - The prosecution rested their case and the defense began its case with testimony about the prior arrest of George Floyd on May 6, 2019. The judge informed the jury that the testimony was merely for the purposes of showing how opioids affected Mr. Floyd and has nothing to do with his character. They showed the body worn camera video of Scott Creighton who testified about the encounter with Mr. Floyd. The video showed the officer approaching the passenger side of the vehicle where Mr. Floyd was sitting. There were two other officers at the driver’s side yelling instructions to the driver as well. It was chaotic with lots of yelling. You could see Mr. Floyd complying with the officer’s commands to put his hands on dash and then on his head and the door was opened and two officers got Mr. Floyd into handcuffs with very little resistance. The officer who was talking with Mr. Floyd had his gun drawn and Mr. Floyd kept saying don’t shoot me and don’t hurt me.
The next witness was a retired paramedic, Michelle Moseng, who was called to the precinct to check on the arrested Mr. Floyd (we never learned what he was arrested because that would have gone to his character). She testified that Mr. Floyd admitted to being addicted to opioids and that he’d taken 7-9 percocets. He was talking with her and responding to questions. She took his blood pressure which was 216/60 and she recommended he go to hospital. All other vitals were normal, including his heart. He didn’t want to go at first, but eventually he was taken, monitored for two hours and discharged. On cross the prosecutor pointed out that as a result of this encounter Mr. Floyd did not die in police custody.
Next witness was Shawanda Hill, who was not very happy to be there. She testified that she ran into Mr. Floyd at Cup Foods and he offered to give her a ride home, which she accepted. He was happy, talkative, alert, etc. When they were in the car together they talked for about 8 minutes when Floyd fell asleep. She tried to waken him and especially when cops were approaching the car. She also got a phone call from her daughter, so she was distracted. But she testified about being startled and afraid when the police officer showed his gun and Floyd immediately put his hands on the steering wheel. That was essentially the extent of her testimony.
The next witness was Officer Peter Chang, who was the Park Police officer that assisted on the call involving Mr. Floyd. They showed his body worn camera video (which was about 30 minutes long), which basically only showed that he was ordered to watch the SUV and Shawanda and Morries. He did testify that he thought the crowd was aggressive and loud and he was concerned about the officers, but he did not go to assist, was never called to help and he did not hear over the radio the officers call for more help. He just stayed and babysat the passengers. You could see Shawanda grow concerned because she couldn’t see what was going on, and neither could Chang, and her concern grew when ambulance arrived. She was merely told he was being taken to the hospital, nothing more. On cross-examination, Chang testified that when he arrived he observed Mr. Floyd sitting on the ground, not agitated or upset, talking clearly, answering questions and then walking cooperatively toward the squad, not someone who seemed under the influence. What I found most interesting is that over his radio, you heard that EMS was in the wrong location and was directed to Cup Foods, which is why they were late. Then the fire truck arrived after the ambulance left and was then advised by dispatch where to go because EMS was calling to find out where they were. I suspect the defense will use this as another excuse as to why Chauvin remained on Mr. Floyd’s neck because he thought EMS or fire would be there momentarily.
The last witness of morning session was Off. Mackenzie who had testified during the state’s case but was recalled to define “excited delirium” for the jury. It was not helpful at all and the only thing the state pointed out was that Officers are required to put someone in side recovery position and that they are not qualified to diagnose “excited delirium,” only qualified physicians can do that.
Day 12 of Chauvin Trial – Afternoon Session – Barry Brodd is a self-employed consultant after having been a police officer for about 29 years and was called as an expert in the “use-of-force.” His direct testimony lasted 45 minutes during which he stated, “I felt that Derek Chauvin was justified, and was acting with objective reasonableness, following Minneapolis police department policy and current standards of law enforcement, in his interactions with Mr. Floyd.” He further opined that he did not use deadly force. He testified about what he called “one upmanship” and stated a police officers doesn’t have to fight fair; they can go up a level to obtain compliance. He also did not consider his term “prone control” to be a use of force. He said taking Mr. Floyd out of the car and putting him on the ground was reasonable and that it was safer for officer and suspect because suspect’s mobility is diminished, it takes away use of hands, and limits what they can do with feet. Further, if officer was justified in using prone control, maintaining prone control is not a use of force because it doesn’t hurt. Much of the language of Mr. Brodd used has been repeatedly used by Mr. Nelson in cross examination of the state’s witnesses. The expert used no exhibits to bolster his opinion, but on cross-examination, the prosecutor used many clips from body worn cameras to question Mr. Brodd’s opinions. At one point in the video when Mr. Floyd’s speech is strained and his movement slows, the expert describes that as Mr. Floyd becoming more compliant, in other words the expert believed that Mr. Floyd was still resisting arrest even though he was almost not moving and taking his last breath. But, the prosecutor pointed out, Mr. Chauvin continued the “prone control” restraint until the ambulance arrived. Also the expert stated that when Mr. Floyd was not moving, “he was resting comfortably on the pavement.” ARE YOU KIDDING ME. Mr. Nelson’s attempt to rehabilitate his expert on re-direct failed miserably. The expert continued to blame Mr. Floyd for resisting and the crowd for being “potentially” disruptive.
I can’t help but point out that the New York Times reported that Mr. Brodd served as an expert on behalf of Jason Van Dyke, a Chicago police officer who shot and killed 17-year-old Laquan McDonald, in 2014. He was convicted of murder in 2018, despite Mr. Brodd stating that Van Dyke’s use of force was justified.
Day 13 of Chauvin Trial – Morning Session – Dr. David Fowler testified for the defense as the expert forensic pathologist. He testified for a little over two and half hours on direct droning on at times about anatomy especially relating to the heart. His opinion is that the cause of Mr. Floyd’s death was as a result of “cardiac arrythmia hypertensive cardiovascular disease during restraint.” He also listed the “contributing causes” as fentanyl and methamphetamine use, carbon monoxide (from the tailpipe of the squad car), and paraganglioma adding adrenaline to the whole mixture. He declared that the manner of death was “undetermined” as oppose to “homicide” which the Hennepin Country Medical Examiner determined. Breaking down some of the contributing causes, the expert acknowledged there were no blood tests determining the level of carbon monoxide in Mr. Floyd’s blood, so they did a statistical analysis based on all sorts of different studies. I think this could be a double-edged sword for the defense because it was the police that exposed Mr. Floyd to that toxic exposure if that is what happened. The expert also concluded that because there was no bruising on Mr. Floyd’s back and neck, there wasn’t enough weight applied and that means the police restraint did not cause asphyxia. Several prosecution experts explained that bruising does not occur in all situations involving asphyxia. It remains to be seen as to whether the jury will find reasonable doubt from this testimony. The afternoon session will start with the cross of Dr. Fowler.
Day 13 of Chauvin Trial – Afternoon Session – The prosecutor in his cross examination sought to clear up any confusion for the jury. He pointed out that Dr. Fowler’s report was 31 pages long. He also pointed out that Dr. Fowler did not factor in the body armor and gun belt in determining Chauvin’s weight. He asked Dr. Fowler if he ever investigated the squad car to see how much emissions were releases, so he really had no idea how much carbon monoxide Mr. Floyd was exposed to. The doctor was asked on direct to identify a “white object” in Mr. Floyd’s mouth just prior to him being handcuffed, the implication was that it was a pill. On cross, the prosecutor showed video of Mr. Floyd in Cup Foods and you could see him chewing a white object. This was a case of battling assumptions and no one could prove conclusively that the “white object” was a drug. The doctor mistakenly thought there was more than one pill on the squad car floor. In fact he admitted to being mistaken quite a few times. The prosecutor also pointed out that Dr. Fowler was not able to pinpoint the exact time of Mr. Floyd’s death. This was important because the doctor is saying he died of sudden heart failure, but he could not say exactly when in the timeline it occurred. He would not agree that it appeared that Mr. Floyd’s breaths slowed down and his speech grew softer. He stuck to his guns that he died suddenly but he couldn’t say when. The most compelling part of the cross-examination was when Dr. Fowler agreed that as a physician, he would have liked to have seen someone start CPR on Mr. Floyd immediately after he stopped breathing and there was no pulse found. This is not a full report on his cross-examination, and I admit to being biased in this case, but it shows some of the highlights.
Court ended its session an hour early because they didn’t want to start a witness who would take longer than the time allowed.
Day 14 of the Chauvin Trial - The defendant will not be testifying and the defense rested their case, choosing to call no further witnesses. The prosecution called Dr. Tobin, the "breathing" expert, to rebut Dr. Fowler's testimony about carbon monoxide and other issues. His testimony began at 11:15 and cleared up all the speculation about Carbon Monoxide poisoning. The defense expert failed to take into consider the test results of the arteriole blood gas test performed on Mr. Floyd at Hennepin County, which found his blood saturated with 98% oxygen. That means there would only be a maximum of 2% carbon monoxide. Dr. Fowler testified that it could be in the range of 10-18%. He certainly got that wrong.
Dr. Tobin also talked about the various studies performed about the hypopharynx and the impact on the narrowing of the hypopharynx because of low oxygen reserve. Dr. Fowler testified that he could find no studies, but Dr. Tobin said there were up to 20 studies that reach that conclusion. I'd say the defendant's expert's opinions were proven to be suspect.
Jury was sent home and closings will take place on Monday. After the closings, the jury will be instructed about the charges Chauvin faces, which are Second Degree Murder (which carries a sentence of not more than 40 years), Third Degree Murder (which carries a sentence of not more than 25 years), and Second Degree Manslaughter (which carries a sentence of not more than 10 years).
Second Degree Murder requires a finding that a person “cause the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense.” This is called “felony murder” and I seriously doubt he’ll be found guilty of this.
Third Degree Murder requires a finding that a person “who, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
Second Degree Manslaughter requires a finding that the death is caused by a “person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.”
The defendant is obviously hoping for a full acquittal. The burden of beyond a reasonable doubt is a very high burden for the state. Will they be able to prove “a depraved mind, without regard for human life” is the big question. I suspect Chauvin will be found guilt of Second Degree Manslaughter and no one will be happy with that result. He will not get enough time in prison to satisfy the masses. Justice, in my opinion, can only be achieved if he is found guilty of Third Degree Murder.