Chauvin Trial Day 2 Wrap-Up: State Focused on Feelings, Judge Scolds Firefighter

Chauvin Trial Day 2 Wrap-Up: State Focused on Feelings, Judge Scolds Firefighter

Testimony from MMA “Expert,” Bystander Witnesses with Limited Knowledge, & Grumpy Firefighter

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 Chauvin court wrap up the testimony of martial arts and security “expert” Douglas Williams, a bystander witness to Floyd’s in-custody death.  It also saw the state proceed through four women I’ll refer to as the “minor witnesses,” because they were bystander witnesses who under 18 years of age at the time of the incident.  Finally, the state brought the firefighter bystander witness to the stand, with court recessing partway through the defense cross-examination of her.

The most interesting event of the day was certainly during the testimony of the firefighter, when Judge Cahill cleared the jury from the room and scolded her for being argumentative with the defense during cross, before sending her to bed with no dinner and telling her to come back to the courtroom for further cross at 9:30am tomorrow (kidding about the bed and dinner part).

Before I dive into today’s testimony, there were a couple of procedural questions that folks brought up today, and it’s probably best to address them up front.

Witness Notes

One of these is the issue of a witness referring to notes while testifying.  This occurred with witness Williams, the MMA/Security/“Bro!” witness for the state.  Early in today’s cross-examination of Williams by the defense, Attorney Nelson noticed that Williams was holding some papers in his hand and kept looking at them, and asked Williams if they were notes. Curiously enough, Williams denied they were “notes,” but said he used them when he couldn’t remember things. Sounds like notes to me, but whatever.

Legally speaking, the problem with a witness holding notes is first of all that the witness is supposed to be testifying from memory.  Notes can be used by a witness to refresh their recollection, but then must be put down and the testimony again given from that (now refreshed) memory.

Even then, notes intended for such purposes must have been disclosed beforehand to the parties as part of the normal discovery possible, before the witness can make use of them on the stand—the parties are entitled to know what the notes actually say.  These notes of Williams were obviously not shared with the defense beforehand, and I rather doubt even the prosecution knew Williams was bringing them.

One fundamental concern about notes, of course, is that they could be written by anybody and handed to a witness with no actual personal knowledge of the events in question who simply reads off them to the jury.  There’s no way to cross-examine or impeach a piece of paper, after all.

So, the way Williams was using his notes was inconsistent with proper court procedure, and its procedure that matters.

Apparently, defense counsel didn’t think it enough of a problem to make a big stink over it, other than to ask Williams to limit himself to using the notes only to refresh his recollection.

Those of you who enjoyed my coverage of the Zimmerman trial might remember that one of the state’s medical examiners who testified at trial brought a whole bunch of notes with him, none of which had been disclosed to the defense.

When defense counsel Don West asked to see them—as was his right—the doctor adamantly refused to share them, grabbing them close to his person and screeching that they were his notes, his personal property, that he prepared in his own spare time.  It was reminiscent of Gollum and his precious ring.

Absent the notes, it turned out the doctor had no real recollection of any of the medical examination of Trayvon Martin, and so proved another among a great many of the prosecution’s witnesses who had zero, or even negative, value for the state’s case against George Zimmerman.

So, that’s the deal with Williams’ notes.

Direct, Cross, Re-Direct, Re-Cross, etc.

The second procedural question had to do with the sequence of questioning of the witnesses.  Currently the state is presenting its case in chief, so these are state witnesses.

The state questions its witnesses first, in what is called direct questioning.  Then the defense gets to question the witness, in what is called cross-examination—unless the defense has no questions, in which case that witness is done.

After the defense has subject the witness to cross-examination, however, the prosecution may want to ask the witness additional questions in what is referred to as re-direct question. Then the defense also can ask the witness more questions in what is called re-cross examination.

After that we may be re-re-direct, re-re-cross, etc., all the way down.

Importantly, however, each round of questioning is limited to the scope of the round of questioning that occurred immediately prior.

That is, if the state’s initial direct examination asked about issues A, B, and C, on cross-examination the defense can ask about A, B, or C, but they cannot ask about issue D—if they attempt to do so, they are exceeding the scope of direct, and that questioning outside of scope is not permitted.

Let’s imagine that on cross-examination the defense permissibly asks about issue A and B, but not about C.  Then if the state wants to engage in re-direct, the state can only ask about what the defense just covered—issues A and B.  Issue C is no longer on the table for re-direct, because it wasn’t covered on cross.

The natural result is that each round of questioning tends to get narrower and narrower as the prior round focuses on an increasingly smaller subset of the issues originally covered on direct.

Hopefully that makes sense—it would be much easier to draw as a figure than it is to describe using words, but there we are.

Leading Questions

Also, I had a question about asking leading questions, which the prosecution tended to do a great deal with a number of today’s witnesses.  A leading question is one which suggests the answer to the witness, and these are not permitted on direct questioning (meaning, questioning of your own witness), but are permitted on cross-examination.

If a prosecutor, say, wants to get their witness to share their personal knowledge of an event, and is particularly hoping to have the witness testify that a green car came driving down the road, the prosecutor might properly ask, “And after you exited the store, did you observe anything noteworthy on the road outside?”  If instead the prosecutor asks, “And after you exited the store, did you see a green car come driving down the road?” that would be a prohibited leading question, because the question suggests the answer.

Here the state seemed to ask a great many leading questions of its own witnesses, and I was asked why the judge permitted this to occur.

It’s important to understand that it’s not for the judge to call out such things as prohibited leading questions, it’s up to opposing counsel to do that.  If opposing counsel objects to a leading question, then they literally object—“Objection, leading.”—and if the question was genuinely an improper leading question the judge will uphold the objection and the question and any answer will be struck.

If opposing counsel does not object, however, then there’s nothing for the court to sustain, and the leading question is allowed to pass.  The judge isn’t going to stop it on his own.

Why might opposing counsel allow this? Well, leading questions do allow questioning to proceed much more quickly, and it can make the entire court day very cumbersome to jump on every leading question. If the question and answer are unlikely to damage opposing counsel’s arguments or would inevitably come in anyway after a long series of arduous but permissible non-leading questions, it’s just more efficient—and more likely to stay within the trial judge’s favor—to let the leading question go.

The result is that we sometimes see a great many leading questions even though they are technically not permissible—or perhaps more accurately, even though they are technically objectionable.

Jury Instructions: Coming Soon

Finally, someone has asked about me writing about the jury instructions for the relevant criminal charges in this case. I’ve got those but will probably hold off writing about them until sometime this weekend, when court is not in session.

OK, so let’s jump into today’s testimony.

State’s Witness: Douglas Williams, MMA/Security/“Bro” Bystander

Court adjourned yesterday while state witness Donald Williams II was undergoing direct examination, so naturally things continued today with the state picking up where they left off.

You’ll recall that Douglas Williams is the MMA/Security “expert” who was the bystander witness of Floyd’s arrest who rather aggressively challenged the police on scene.

As was the case with most of the state’s witnesses today, the purpose of Williams testimony seemed to be largely to share emotive observations of Floyd’s in-custody death—albeit at least in Williams’ case there may have been a secondary motive to attempt to leverage his purported martial arts and security “expertise.”

Much of Williams direct testimony focused on Floyd’s demeanor as he died:  “He was in pain, his mouth was wide open, with drool and slob, and dryness, and eyes rolling back, and trying to gasp for air and trying to be able to breath, and trying to move his face from side to side.”

Williams also made several comparisons between Floyd’s demeanor and the death of the fish he’d captured earlier in the day and kept in a plastic bag as they died, a story he’d first recounted yesterday.

Another interesting theme among the state’s witnesses today made it seem as if they’d all ben carefully coached to make sure they denied that the crowd of angry bystanders had in any way acted in a manner that could be perceived as threatening by the officers.  Yet, throughout their testimony they also couldn’t help but recount actions of themselves or others that could easily be perceived as threatening.

For example, Williams denied engaging in any threatening behavior, but then in an effort to make Officer Thau look bad he recounted how Thau had put a hand on his chest to push Williams back to the sidewalk—which action was only required because Williams had stepped off the sidewalk and aggressively approached to within a foot or so of Thao.

In a further effort to, I suppose, make himself look good, and authoritative, Williams described how he was obliged to restrain other members of the bystander crowd to keep them from aggressively approaching the officers—which, of course, would suggest that the officers had good reason to believe the bystander crowd was inclined to close aggressively on them.

Yet another common theme among the day’s witnesses is that they were intent on engaging in mind reading of Floyd, Chauvin, and others.  With respect to Floyd, for example, Williams was prone to describe fear and pain as if he knew for a fact what Floyd was suffering, instead of limiting himself to his actual observations.  It’s fine to say that Floyd appeared to be suffering fear and pain, and articulate why, but not to definitely define Floyd’s mental state.

Similarly, Williams was prone to engage in mind-reading of Chauvin, at one point describing Chauvin as definitely having no feeling, no remorse, no humanity. Naturally the defense objected, and Cahill instructed the jury to disregard.

And, sorry, but yet another common theme among the witnesses today was that even after the paramedics arrived and checked Floyd for a carotid pulse, Chauvin had still not removed his knee until Floyd was lifted up onto the gurney. As mentioned by a commenter in today’s LIVE coverage, this raises an interesting question.  That is, if the paramedic was able to touch Floyd’s carotid pulse without Chauvin having to move his knee, then clearly Chauvin’s knee was not placed on Floyd’s carotid artery and could not have been occluding carotid blood flow.

I hadn’t considered this issue, and it seems that perhaps Nelson had not either, or I would have expected to him to drill down more on this point.

Before he closed out direct examination of Williams, Prosecutor Frank made sure to dive into how Williams felt about the whole experience—that feeling was of course, negative, as was the case with all the state’s witnesses. How Williams or the other witnesses felt, however, has little to do with whether Chauvin violated any of the criminal statutes under which he has been charged.

It’s also notable that Williams would describe making his 911 call after the ambulance left with Floyd as “calling the police on the police”—a catch phrase used repeatedly by Prosecutor Blackwell during opening statement.  The message, of course, is that Chauvin’s conduct as a police officer was purportedly so egregious that it was necessary to take the extraordinary step of calling the police on the police.

Here’s this morning’s direct examination of Williams (following, of course, on the direct that had begun yesterday afternoon),

Williams: Direct

After Frank was done with direct, defense counsel Nelson took up cross-examination of Williams for the first time. It was here that Nelson took notice of Williams’ notes, and the exchange described above took place.

Nelson did a good job exploring relevant use-of-force issues such as the disparity in weight between Floyd—some 230 pounds—and the police officers—the largest of whom, Chauvin, reportedly weighed 140 pounds.  He did this by exploring the use of weight classes in wrestling and martial arts, which obviously divides competitors by weight differences of as little as 10 or 20 pounds, much less the nearly 100-pound difference between Floyd and Chauvin.

Nelson also explored some of the more technical aspects of various choke holds, including distinguishing “air chokes” and “blood chokes,” as well as attempting to get Williams to concede that an effective carotid (blood) choke requires constriction of the carotid arteries on both side of the neck.  Here it should be recalled that Chauvin was applying pressure to only one side of Floyd’s neck, not both.

Williams’ responses here were largely incoherent and confusing and often self-contradictory, and he insisted a carotid choke required constricting only one side of the neck.  Obviously, questioning counsel cannot himself testify and contradict a factual claim by a witness of this sort, absent immediately available impeachment evidence, but the defense has its own use-of-force expert witness it intends to call, and presumably he’ll be more articulate and better informed on these matters than is Mr. Williams.

Williams did agree that a carotid choke results in loss of consciousness in a matter of seconds, which is obviously a vastly shorter time period than the 9 minutes or so in which Chauvin had his knee on Floyd’s neck. Clearly Chauvin could not have been applying a carotid choke for that 9-minute period, during nearly all of which Floyd was demonstrably conscious and moving.

Nelson also was able to undercut much of Williams’ testimony claiming that he’d merely been “professional and professional” while a bystander witness, by referring both to video footage of Williams at the scene as well as to the transcript of an interview Williams had with police investigators.

Nelson noted that Williams had called the officers “such a man,” and “bogus,” and “such a tough man,” and “a f’ing p*ssy,” and a “f’ing bum.’ Indeed, Nelson pointed out that Williams had call the officers “a bum” no less than 13 times. When asked if this was true, Williams became thoroughly hostile as a witness, repeatedly responding “if that’s what the video shows,” until Judge Cahill finally had to order him to answer the questions.

Here’s the defense cross-examination of Williams.

Williams: Cross

On re-direct by prosecutor Frank, Williams described the police at the scene as being a “human sh*t show,” to which Cahill naturally sustained a defense objection.  Frank attempted to undercut some of Nelson’s cross about weight classes and such by asking Williams whether in MMA fights or wrestling one’s opponent was handcuffed.  Naturally the answer is no—unless, I suppose the opponent had just attempted to pass a bad $20 bill and then fought off lawful arrest.

Here’s the state’s re-direct of Williams.

Williams: Re-direct

Finally, the defense decided to re-cross briefly, by asking Williams if any time he had ever been choked out in martial arts he’d been able to hold a conversation while that was happening.  The prosecution made a silly objection based on hearsay, which Judge Cahill overruled.  Williams simply answered that he hadn’t previously been engaged in conversation when he was being subject to a carotid choke.

Here’s the defense re-cross of Williams.

Williams: Re-cross

But we’re still not done with Mr. Williams, because the state decided to do a re-re-direct.  Here, the state asked Williams about whether in martial arts one was obliged to stop their choke hold if an opponent tapped out, and Williams laughingly said yes.  It’s not clear to me what the corollary to police use of force is here—are the police supposed to release a restrained suspect if he taps out?—but in any case we were finally finished with Williams as a witness.

Here’s the state re-re-direct of Williams.

Williams: Re-re-direct

State’s Witnesses: The Four “Minor” Witnesses

Next up came a series of four witnesses I’ll refer to as the four “minor” witnesses because all four were female minors (under 18 years of age) at the time they were bystander witnesses to Floyd’s in-custody death.  Although two of the four have since achieved adulthood, Judge Cahill nevertheless allowed all four some special treatment, such as not having to give their names while on public broadcast.  Accordingly, I simply refer to them as Minor 1, Minor 2, Minor 3, and Minor 4, respectively. (Their names are, however, public knowledge, if anyone cares enough to look them up in public media reports.)

Frankly, I felt these witnesses added very little of substance to the trial, although they did through plenty of coal onto the emotive steam engine, each being emotionally distraught, sobbing, even crying on the witness stand. After all, the common theme went, they’d stood there and watched as the police killed George Floyd.

Indeed, two of these witnesses were not even subject to any cross examination by the defense at all.  In the case of one, Minor 2, this was almost certainly a prudent strategic decision by the defense, as she was only 9 years old as of this day of testimony. She had little to add that the other bystander witnesses wouldn’t separately testify to, and one wonders what level of cruelty it required of the state prosecutors to have her subject to such traumatic recollection for not very good purpose.

Another of the four “minor” witnesses, Minor 4, was also not subject to cross, likely because it would have served no substantive purpose for the defense.

Minor 1

Minor 1, however, was subject to direct, cross, and re-direct, and videos of all three are below.  This witnesses’ actual first name appears to have been Darnelle, and she was the older (at the time 17, now 18, year old) cousin of the very young Minor 2.

Minor 1 and Minor 2 had travelled together to the Cup Foods convenience store for snacks, and like the other bystanders largely saw the same things occur.

As noted, there was lots of emoting, lots of mind reading, lots of conclusory statements of fact—“We all knew what was happening was wrong.” “Objection.” “Sustained, jury will disregard.”—but little of genuine substance that the video didn’t reveal on its face.  Floyd was restrained by three officers, including Chauvin’s knee, complained about breathing and being in pain, called for his momma, worsened physiologically, and apparently died on the street, and Chauvin never “let up to get up.”

Like every other bystander witness, none of the “Minor” witnesses had a full understanding of what was occurring even during the limited period they were watching Floyd’s arrest, and none had any idea whatever of all of Floyd’s conduct that led up to him being restrained on the street as he was by the police.

Here’s the direct examination of witness Minor 1 (Darnelle) by state prosecutor Blackwell:

On cross-examination I felt Nelson did a good job getting out of Minor 1 what he could. Indeed, I felt that outside the purely emotive Minor 1 provided more substantive value to the defense than she did to the state.

As with Williams, Nelson was able to wheedle out of Minor 1 testimony consistent with the bystander crowd being an arguably threatening mob to the police.  She denied they were threatening, but then conceded conduct, such as repeatedly stepping off the sidewalk towards the police, and becoming increasing loud and angry, that could readily be perceived as threatening.

Indeed, at one point Chauvin and Thau each reached for their OC spray, conduct that Minor 1 and other of the day’s witnesses professed was utterly unnecessary, but which was certainly circumstantial evidence that the officers felt they might imminently need to defend themselves from physical assault.

Here’s the cross-examination of Minor 1:

This conflict in testimony was highlighted again when Prosecutor Blackwell asked on re-direct if Minor 1 had seen a single thing that would indicate that Chauvin was frightened by the crowd. She said she had not, but her own testimony only moments earlier about Chauvin reaching for his OC spray belies that claim.

Here’s the re-direct of Minor 1:

Minor 2

As already mentioned, there wasn’t much to Minor 2’s testimony, as one would expect from a 9 year old, so I won’t spend much time on it here.  Again, Minor 2 was not even subject to cross-examination, so we have only the direct questioning by the state, again by Prosecutor Blackwell.

Minor 3

Minor 3 was another female, now 18 years old, and in high school. She was subject to direct questioning by a female prosecutor we haven’t seen in an active role yet this trial, prosecutor Eldridge.

Minor 3 was one of a pair of girls who drove to the Cup Food to buy an “aux cable.”  The other of the two girls would testify immediately afterwards as Minor 4. Neither Minor 3 nor 4 added much of substantive value to the trial, though there was of course a great deal more emoting.

Interestingly, when the various videos are played during Minor 3’s testimony, we can clearly hear MMA witness Williams telling Officer Thau, “I will kick the f*ck out of you. I will kick the f*ck out of you. You’re a b*tch, bro.”  We can also clearly hear the firefighter Hansen, who will be the last witness of the day, also calling Officer Thau a b*tch.

Here’s the direct questioning of Minor 3:

On cross examination Nelson scored some real points.  Referring to a transcript of a phone interview Minor 3 had with investigators shortly after the event, Nelson pointed out that she told those investigators that she had seen the police restraining Floyd check his pulse multiple times before the ambulance got there.  She also repeated this narrative of the police checking Floyd’s pulse in discussion with the prosecution only days prior to her testimony today, to which the defense apparently had discovery access.

Minor 3 claimed she had no clear recollection of saying the officers checked Floyd’s pulse “multiple times,” but had to concede the point when Nelson handed her the transcript of her interview.

She also conceded that the bystander crowd around the officers was genuinely angry, which will be an important circumstantial factor in the officer’s reasonable perceptions of their practical options in that context.  Indeed, it’s worth noting again that not even the paramedics stayed on scene to treat Floyd, but rather immediately loaded Floyd into the ambulance and drove a safe distance away from the angry crowd before doing so.

Here’s the cross-examination of Minor 3:

Prosecutor Eldridge did a very short re-direct of Minor 3, hardly worth mentioning, so I won’t.  Here’s the re-direct of Minor 3:

Minor 4

State’s witness Minor 4 was essentially an emotional wreck throughout direct questioning by Prosecutor Eldridge, with sobbing and weeping on the witness stand. The state got nothing out of her they hadn’t already gotten from the other Minor witnesses, and the defense did not even both cross-examining her.

Here’s the direct questioning of Minor 4:

State’s Witness: Fire Fighter Genevieve Hansen

State’s witness fire fighter Genevieve Hansen appeared on the witness stand in her full dress uniform, presenting quite a different sight than she had as a bystander witness clad in sweatpants on the sidewalk.

Before even direct questioning of Hansen began, the prosecution submitted to the court some video evidence of the scene and audio evidence of a 911 call by Hansen, and that was “published” before Hansen took the stand. Here is that evidence as published in court.

Hansen Video and 911 Audio

Once direct began, this time led by Prosecutor Frank, much time was spent polishing Hansen’s training and experience, albeit as of today she’d only been a firefighter for two years, and so for barely one year at the time of Floyd’s arrest.

Most of Hansen’s testimony was little different than that of the Minor witnesses: a lot of emoting and mind-reading, but little of substantive value. Like them, she had only a limited view of what was happening and had no knowledge of what had led to Floyd being restrained on the street.

When asked what she would have done had she been permitted to “treat” Floyd, most of what she recited was action actually taken by the officers, like calling 911 and checking Floyd’s pulse.  Other proposed actions would have been effective only if Floyd’s cause of death was actually Chauvin’s knee, which of course is a key issue in dispute and appears to be an unlikely cause of death on the available evidence.

Other possible actions suggested by Hansen were of a sort that neither the officers on scene, nor Hansen in sweatpants, was in a position to provide, like use of a breath bag or of Narcan for drug overdose.  In short, if Floyd required such care, he’d need to wait for the paramedics already called for by the officers.

It is notable that at no time did Hansen make any reference to Floyd’s ingestion of a three-fold fatal dose of methamphetamine/fentanyl speedball, to prevent discovery of the illicit drugs by police—a far more likely cause of death than Chauvin’s knee.

Like Williams, Hansen had also called 911—called the police on the police—to report her conclusion that she had just seen police kill a man, but then had hung up before completing her report to a police sergeant. She had no good reason for hanging up, other than getting distracted by events with other bystanders and late-arriving fire department personal at the scene.

It seemed that Hansen did an OK job as a state witness on direct, which you can view her.

Hansen: Direct

Things went less well for Hansen on cross examination by Nelson, however, largely because she proved rather outrageously hostile and uncooperative—to the point where a very irate Judge Cahill would eventually clear the jury from the court room and chastise her directly before sending her home for the day and adjourning court.  More on that in a moment.

On cross Nelson touched on the substantial training required to be a fire fighter and rhetorically placed Hansen into a hypothetical situation similar to that of the officers. Would it be difficult for her to follow her training and do her job putting out a fire if she was being shouted at by a threatening mob?  Hansen insisted it would not negatively impact her ability to do her job at all, but the protestations came across as entirely insincere.

He also explored whether she had ever before sought to interfere with police securing a scene for called medical personnel, and Hansen had to concede she had not.

An interesting exchange occurred when Hansen insisted to Nelson that a main reason for her concern was that she believed fire fighter EMTs could have been on scene prior to Floyd’s death, and that the delay in medical personnel suggested something had gone wrong.  Nelson pointed out that the police merely call for medical, period, and it’s the dispatcher who determines whether paramedics or fire fighter EMTs gets sent.

This whole exchange opened an entirely new narrative for the defense, in that the fault of providing timely care to Floyd might have been that not of the officers, who called for care promptly, but of other components of the city’s response system.

Hansen gradually became increasingly hostile and uncooperative. When asked if she remembered making particular statements to investigators, she denied knowledge. When offered a transcript to refresh her recollection, she refused to look at it. When compelled to look at it, she conceded that she’d made the statement, but then attempted to provide a lengthy, complex, and legally irrelevant explanation for why she made the statement she’d initially denied remembering having made.

As noted eventually Judge Cahill had enough of Hansen, cleared the jury, and chastised Hanssen directly. Even while he was chastising here, she continued to be argumentative, this time directly with Judge Cahill.

As you might expect, that went poorly for her.

That chastisement closed out the court for the day, so we’ll use it to close out today’s wrap-up post.

Here’s the cross-examination of Hansen, which will continue tomorrow morning.

Hansen: Cross (Part 1)

And if you only want to see Hansen being chastised, here’s the short video clip of that portion of the day’s proceedings.

Hansen: Scolded by Judge Cahill

OK, folks, that’s all I have for today. I’ll be back tomorrow morning with live coverage of the Chauvin trial once again.

Until then, 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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