Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd. I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.
Today saw the start of the formal trial of Derek Chauvin, with both sides presenting the jury with their first views of the prosecution narrative of guilt and the defense narrative of innocence, in the form of each side’s opening arguments, respectively.
We also saw the state’s first three witnesses as they began to present their case in chief. The first of these was the 911 police dispatcher, the second was a grocery store worker from across the street of the scene of the arrest, and the third was the martial artist who observed Floyd restrained by the officers.
The state’s opening argument was presented by Prosecutor Jerry Blackwell, the video of which is embedded below.
The state’s opening consisted largely of the kind of hyperbole, emotive pleading, and half-truths that we’ve grown to expect from politically motivated prosecutions, and relatively little focus on the facts required to be proven beyond a reasonable doubt in order to secure a just conviction.
For example, Blackwell quoted extensively from the Minneapolis Police Department (MPD) policy manual, but only quoting the “soft” portions of the manual that refer to treating suspects with respect and not using excessive force.
Blackwell somehow neglected to mention the portions of the MPD policy manual that explicitly permit the use of neck restraints, including knee to neck, when dealing with resistant and non-compliant suspects, as well as the portions calling for full-body restraint of suspects believed to be undergoing potentially deadly excited delirium syndrome.
Similarly, Blackwell acknowledged that Floyd had drugs in his system, but only the opioid portion of the drug cocktail on which Floyd was intoxicated. He argued to the jury that Floyd’s opioid (fentanyl) toxicity could not have contributed to his death because opioids make people sleepy, and Floyd was clearly not sleepy (indeed, he forcibly resisted arrest, but Blackwell slides over that awkward reality).
Blackwell neglected, however, to mention that the reason Floyd and his vehicle and passengers were still on scene when the police arrived was because Floyd had passed out in the vehicle and his passengers were unable to rouse him despite their fear that police were about to arrive.
Blackwell also failed to note that Floyd wasn’t merely on fentanyl, the pills he had ingested were a combination of fentanyl and methamphetamine—and as the name suggests, methamphetamine is a powerful stimulant.
Blackwell made great hay out of the fact that the dispatcher who observed scattered portions of the Floyd arrest was purportedly so outraged by what she saw that she called Chauvin’s supervisor to intervene. So shocking was Chauvin’s conduct, he argued, that the dispatcher felt compelled to call the police on the police.
In fact, when that dispatcher testified and her call to the sergeant was played in court, she stated in that call that she had no clear idea if a use-of-force event was even occurring and giggled at the sergeant before hanging up. Hardly the conduct of someone who believed she was watching a police racist murder on a public street in real time. Also, such calls to sergeants were a routine practice when any potential use-of-force event was believed to possibly be taking place, and not something that would be done only in the most extreme case of excessive force.
Blackwell also engaged in the kind of “if the glove don’t fit, you must acquit” rhetoric most of us first encountered during the OJ trial. He repeatedly referred to the “9 minutes and 29 seconds” of Chauvin’s knee on Floyd’s neck as “the most important time in this trial,” and of course completely ignored everything leading up to that point. This repetitive reference to the time Chauvin’s knee was on Floyd’s neck is also a constantly repeated refrain being shouted by Benjamin Crump and other leading protestors outside the court room.
Blackwell described the whole series of events as being based merely on Floyd passing a fake $20 bill, which is merely a misdemeanor, for which a ticket could have been given, and not something worthy of a man’s death. Ignored was Floyd’s subsequent forcible non-compliance with arrest for some 10 minutes, or his ingestion of a fatal dose of fentanyl/meth in an effort to prevent discovery of the illicit drugs.
Blackwell also spent a lot of time conflating “putting Floyd on the ground” with “putting Floyd in a life-threatening prone position.” The first is incontrovertibly true, but in fact Floyd was only ever transiently in an actual prone position, if ever, and usually only because he squirmed into that position himself.
He made, of course, incessant reference to the various videos, and even played a carefully selected portion of the most prejudicial of the bystander video, because of course the prosecution must drive the jury to deliver a verdict based on the emotions driven by that video, and not by the totality of the circumstances and perfectly reasonable alternative explanations for Floyd’s death other than Chauvin’s knee.
To counter the likely defense argument that Chauvin kept his knee on Floyd’s neck because Floyd continued trying to squirm away from the officers, Blackwell proposed instead that this movement by Floyd was a reflex as his death approached, and occurred only because of Chauvin’s use of force, not the reverse.
Blackwell also told the jury that he would present experts to prove that there were no circumstances under which MPD restraining policy allowed for a knee on the neck of a suspect. In fact, having personally reviewed the MPD use-of-force policy in effect at the time of Floyd’s death, not only did the text of that document explicitly allow for knee-on-neck restraint under appropriate circumstances, MPD training materials included photographs demonstrating knee-on-neck as an approved restraint technique.
To counter the utter lack of any physiological indication of injury to Floyd’s neck, Blackwell instead cited as proof of the pressure purportedly applied by Chauvin the road rash on Floyd’s bare shoulder and the bloody injury to Floyd’s nose. In fact, the road rash to Floyd’s shoulder would have occurred as a result of Floyd squirming while being held on the street, and his nose injury demonstrably occurred when Floyd was resisting being placed in the squad car (his blood was found on the plexiglass divider in the squad car at nose height).
To counter allegations that it was Floyd’s physiology—serious hypertensive and cardiac disease—that killed him, rather than Chauvin’s knee, Blackwell threw out a variety of very specific cardiac incidents and claimed none of those occurred. Indeed, Floyd had suffered from those conditions for years and hadn’t died yet.
Absent was any attempt to explain away the likely defense argument that it was the combination of that hypertension, cardiac disease along with the decision to forcibly fight four officers for 10 minutes and ingest an overdose of fentanyl that overwhelmed Floyd’s ability to survive, not merely the comorbidities alone.
To counter likely defense arguments that the force used on Floyd was in part necessary because he was so much larger than any of the officers—including Chauvin—with whom Floyd chose to physically resist, Blackwell argued that a suspect’s size was never an excuse for the use of excessive force. Well, of course, there’s never any excuse for excessive force—excessive force is by definition inexcusable. A suspect’s size, however, is always a possible basis for the use of an increased degree of non-excessive force.
There is, of course, much more, as the state’s opening statement went on for nearly an hour, but if you’re interested in more detail you can enjoy the video here:
Defense Counsel Eric Nelson focused much of his opening statement urging the jury to apply their powers of reason and common sense to the actual evidence and law—which is, of course, the jury’s duty—rather then relying on emotive rhetoric. Along these lines, Nelson repeatedly banged the “reason” and “common sense” drum.
He also sought to undercut the emotive and repetitive cites to the “9 minutes and 29 seconds” repeatedly called out by Blackwell by emphasizing the enormity of evidence that had been gathered in this case, including over 50,000 potential exhibits, investigation by over 50 Minnesota technicians, 20 agents from the FBI, a dozen search warrants, interviews of 50 members of the MPD, interviews of EMS and fire department personnel, much of the MPD command staff, and over 200 civilian witnesses, many of whom actually saw nothing of what happened. Clearly the evidence around this case was more than just under 10 minutes of video.
Nelson offered the jury a framework for understanding that day’s events that was both simple but yet far more comprehensive than the “9 minutes and 29 seconds”: look to the totality of the event, including the events at Cup Foods where the bad bill was passed, the events at the Mercedes where Floyd had passed out and refused to show his hands and in which illicit pills were found, the events at the squad car where Floyd forcibly resisted arrest and where more of Floyd’s drugs were found, and finally the events following when Floyd was placed in the care of medical personnel who were so fearful of the angry crowd that they were compelled to drive Floyd away from the scene before attempting to provide care.
Nelson provided context around the initial officers drawing their service pistols—the much larger Floyd was refusing to show his hands when approached, conduct for which the MPD routinely drew their pistols—and for why the MPD was called in the first place—not just the bad bill, but Floyd’s repeated refusal to actually pay for or return the cigarettes and his apparent state of intoxication.
Also referenced, of course, was the evidence that Floyd had ingested illicit drugs as evidenced by both the search of the Mercedes and the search of the squad car, the fentanyl/meth pills being found in both locations, and with Floyd’s saliva and DNA found on those pills located in the squad car.
To counter Blackwell’s argument that surely the police didn’t need to restrain Floyd as they did, considering there were four of them and they were all armed—as if shooting Floyd would have been an appropriate option for those officers—Nelson noted the tremendous size disparity between Floyd—6’ 3” and 223 pounds—and Chauvin, the largest of the officers involved—5’ 9” and 140 pounds.
Nelson also noted that the surrounding, angry, vocal crowd was sufficiently threatening that it actually diminished the ability of the officers to provide the attention and care to Floyd that they otherwise would have been able to provide, because the crowd demanded the attention of those officers. In other words, the crowd itself was a contributing factor to Floyd’s death.
Indeed, we know that the EMS who placed Floyd in the ambulance were themselves sufficiently afraid of the crowd that they declined to attempt to resuscitate Floyd at the scene, but instead first drove several blocks away.
Again, there’s more, but for further details on the defense opening argument I refer you to the video below:
None of the state’s first three witnesses was sufficiently compelling, in a positive way, to be worth detailed analysis here, so I’ll just touch upon their testimony briefly, and provide links to the video of their testimony below.
The first state’s witness was Jena Lee Scurry, the 911 dispatcher who handled the Floyd call. Blackwell had promised the jury that she would testify that she was so outraged by what she observed of the arrest via closed circuit camera that she felt compelled to call the police on the police. As already discussed above, the reality was far less compelling. Nelson did a reasonable job on cross on undercutting her testimonial value for the state, and using her testimony to provide context helpful for the defense.
Scurry Direct Examination:
Scurry Cross Examination:
Scurry Re-Direct Examination:
The state’s second witness was Alicia Oiler, a woman who at the time worked at the Speedway grocery store (I think it’s a grocery store) across the street from the Cup Food where Floyd was restrained.
I don’t want to go so far as to suggest that Ms. Oiler was the Rachel Jeantel of this trial, but I could see Rachel from here. Oiler generally had her face resting on her hand and appeared utterly bored throughout both direct and cross-examination. Her testimony was largely mono-syllabic and consisted of a large number of grunted “uh-huhs.” She also seemed remarkably unable to recall relevant events, especially considering how extensively the state surely must have worked to prepare their second witness for their case in chief.
Much of Oiler’s testimony was around a series of a half-dozen very short cell phone videos she had taken of the events of the day. None were anywhere as informative as the other much longer bystander and surveillance videos already available. The only apparent reason to include them at all was that the state had spliced the Oiler videos into a longer surveillance video, and so had an excuse to expose the jury yet again to a longer video of what happened.
Frankly, I think showing the longer videos in such length and so repetitively is likely to do more harm than good to the prosecution narrative. First, at some point a certain degree of exhaustion is likely to set in with the jury—OK, already, we get it, move on. Second, the more context provided, the less this event appears to be an open and shut case of police racist murder, and the more reasonable doubt is raised.
Perhaps the most interesting facet of Ms. Oiler’s testimony was the apparent freak-out by television “commentators” afterwards, who seemed frantic to convince the audience that Oiler’s testimony shouldn’t be taken as a sign that the prosecution had decided to intentionally “throw the case.”
Oiler Direct Examination:
Oiler Cross Examination:
Oiler Re-Direct Examination:
The state’s third witness of the day was Donald Williams, the bystander who purportedly has expertise in “security” and “martial arts.” Those of you who have watched the bystander video will perhaps best remember Williams as the “bro” bystander actively engaging with the officers while Floyd was restrained on the street.
Williams’ “security” background appears to consist primarily of being a bouncer and similar non-credentialed activities, and his martial arts background consists of some high school and junior college wrestling, and some mixed martial arts training in a local gym—where, Williams said, he trained not only with members of the Minneapolis Police Department, not only with members of the FBI, but also with members of the CIA. Having had the opportunity to meet my share of CIA personnel, color me skeptical that they are announcing themselves as such at the local MMA gym. Further, much of Williams’ purported MMA expertise was substantially undercut by his apparent ignorance of the techniques he testified about, but more on that in a moment.
It appears that Williams was not formally recognized as an expert, and thank goodness for that, but much of his testimony was of the form one would expect from an expert, including conclusory opinions rather than merely recounting his observations.
Of particular note, Williams affirmatively characterized Chauvin’s neck restraint as constituting a so-called “blood choke.” In fact, it could not possibly have been anything of the sort. A carotid choke hold, which involves cutting off the blood supply to the brain, requires pressure to both of the neck’s carotid arteries. Applying pressure to only one side of the neck, as Chauvin’s knee was doing, cannot block both arteries, and Floyd’s neck was not so positioned on the street that the ground would provide the necessary force to the opposite side of Floyd’s neck. Further, a “blood choke” results in the loss of consciousness within seconds and does not require nearly 10 minutes to achieve that physiological state.
In addition, Williams spent much time describing how small movements on the part of Chauvin were intentional “shimmies” intended to “tighten” the “blood choke” that Chauvin was demonstrably not applying. The notion that Chauvin’s body might have been moving slightly in order to maintain the neck restraint of the continually squirming and very large Floyd appears not to have occurred to Williams.
The court only got partially through Williams’ testimony today, and he’ll be back on the stand tomorrow. I expect the state has more direct for him, after which we’ll get to see what Nelson makes of this purported security and martial arts expert.
I will note that the last couple of minutes of Williams’ testimony was not broadcast, as my view of the proceedings lost signal at the source end, but I doubt we missed much. After just a few minutes the signal returned to show the court going into recess for the day.
In the meantime, here’s the video of Williams’ direct examination today:
Until next time, stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service. If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here: Law of Self Defense Membership Trial.
[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]
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