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Chauvin Trial Day 12 Wrap-Up: Defense Use-of-Force Expert Witness Falls Short

Chauvin Trial Day 12 Wrap-Up: Defense Use-of-Force Expert Witness Falls Short

Defense needed, but did not get, perfect performance from expert Barry Brodd

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.

Today started off with a major shift in the court’s proceedings, with the state resting its presentation of its case in chief, and the defense beginning its presentation of its own case in chief to the jury.

Up to this point the defense was limited to playing (if you’ll forgive the metaphor in this context) on defense.  With all the witnesses so far having been called by the state, it was the state that controlled not only who would testify at all, but also the scope of that testimony. While the defense had the privilege to cross-examine those witnesses, cross-examination is limited to the scope of direct questioning.  That is, if the state didn’t ask about it on direct, the defense couldn’t ask about it on cross.

Now the tables would be reversed, with the defense able to call witnesses that the state would rather the jury not see, and the scope of the questioning of those witnesses would be controlled by Defense Counsel Eric Nelson and not by the prosecution.

Throughout the day the defense moved speedily through six witnesses, including retired MPD Officer Scott Creighton, involved in Floyd’s year-earlier arrest-related drug ingestion event, and whose testimony included body camera footage of that event; retired paramedic and nurse Michelle Moseng, involved at the same event and the person who had observed Floyd’s sky-high blood pressure of 200/160 [!]; Shawanda Hill, the woman in Floyd’s SUV on May 25, 2020, the date of Floyd’s death; Minneapolis Parks Police Officer Peter Chang, who was present on duty at Floyd’s May 25,2020 arrest, and whose testimony included his body camera footage of that event; Minneapolis Police Department medical training coordinator Nicole MacKenzie, recalled as a defense witness after testifying for the state earlier in the trial; and finally Barry Brodd, the use-of-force expert witness retained by the defense for this trial.

I’ll state up front that all of those witnesses were helpful to the defense narrative of innocence in this case to at least some degree, really without exception.  In my view, however, the three most important, at least in the context of the defense case in chief we’ve seen so far, were use-of-force expert Brodd, Parks Officer Chang, and Floyd ex-girlfriend Shawanda Hill, as well as the body camera footage of Officer Creighton.

Barry Brodd, Defense Use-of-Force Expert Witness

The witness I’ll focus on the most here, however, is use-of-force expert witness Barry Brodd, and that’s not because he did a great job on the witness stand for the defense. Indeed, I found Brodd’s performance to fall astonishingly short of what the defense needed in this case, particularly in the specific context of use-of-force expertise.

In my live blogging comments today I at one point characterized Brodd’s performance as a train wreck for the defense, and I expect some folks will think that’s too extreme a characterization.  Maybe his testimony was far from perfect, one might think, but he hardly became a witness explicitly favorable to the state, as had several state witnesses become explicitly favorable for the defense.  Maybe a fairer characterization is “not great,” but also “not terrible”?

The answer to that question is a hard no.  Maybe in a more normal case a mere “not great” would be enough.  But this is not a normal case.  Even just considering the legal dynamics alone, the state has just spent a bit over two weeks presenting a great number of witnesses, including many highly credentialed expert witnesses, all by a rotating panel of four skilled prosecutors.

Further, there are two main paths of attack for the prosecution on the facts of this case:  first, that Chauvin’s conduct was a substantial contributor to Floyd’s death, and perhaps even the primary cause; and second, that Chauvin was not justified in his use of force upon Floyd.

It’s true that the state must win both those battles. If the defense wins either of those legal battles—that is, convinces the jury either that Floyd died of other causes absent substantial contribution by Chauvin, or convinces the jury that even if Chauvin caused Floyd’s death he was nevertheless justified in his use of force upon Floyd—then as a matter of simple legal reasoning the prosecution cannot prove Chauvin guilty beyond a reasonable doubt.

The state, recognizing this dual challenge, has brought a huge mass of evidence and legal argument to both of those battles (frankly, to an extent that many judges would have found much of the state’s evidence to be cumulative and inadmissible).

In the context of the mechanism of how Chauvin purportedly caused Floyd’s death they’ve attacked on multiple fronts, including blood choke, respiratory choke, positional asphyxiation, denial of care, and probably more I’ve not bothered storing in memory.

In the context of the purported lack of justification for Chauvin’s use of force upon Floyd, the state has brought forward a plethora of Minneapolis police officers and senior management, as well as use-of-force experts, to provide testimony to that effect.

Frankly, I’ve always felt the best defense for the (uh) defense was on the justification for use-of-force front.  The state’s testimony on this issue was sketchy at best, and often catastrophically bad for the prosecution.

Several of the state’s police witnesses on this front were effectively turned into defense witnesses by Defense Counsel Nelson on cross-examination.  Further, I had little difficulty envisioning a narrative of justification for Chauvin’s use of force upon Floyd for every moment of the event encounter between Chauvin and Floyd.

In contrast, the medical defense struck me as much more challenging for the defense, especially with the number of welltcredentialed medical and scientific experts the state brought in to testify (again, arguably in a manner that qualifies as impermissibly cumulative testimony).

Use-of-force justification and polices are vastly easier to explain to a lay jury than are the medical sciences of cardiology, pulmonology, oncology, physiology, and more.

For that focus on the defense of justification to work, however, it had to meet a particular condition—it had to be near perfect, virtually pristine in its clarity, compelling in its obviousness, undeniable in its correctness.

And that’s just in the legal argument context. Throw in the political context, and the racial context, and the rioting, looting, and arson context, and it is all the more important that the defense approach perfection if it is to have any hope of achieving an acquittal.

So while I could not possibly know how Nelson was going to craft that narrative of justification, I knew what it had to look like by the time he was done, and I could envision how I would go about achieving that state of virtual perfection in a justification defense if I were making the effort.

It’s that state of near perfection that use-of-force expert Barry Brodd needed to deliver today, and when I say I felt much of his testimony was a train wreck, it in the context of that very high expectation and standard.  Was he OK? Sure, he was OK, sometimes good, sometimes not good, overall, mediocre.

Did he approach the perfection necessary in this case?  Not. Even Close.

Brodd Direct Questioning

Frankly, I thought Brodd was weak from the very start, on direct questioning by Nelson, In all fairness however, the primary fault for that lies not with Brodd, but with Nelson. He was the conductor of the symphony now, and had the mission of extracting from Brodd a near perfect narrative of justified use of force.

Ideally, this narrative would address not only a narrative of justification that looked good when considering the facts in only a favorable light, but one that also addressed possible points of attack by the prosecution—indeed, that addressed every possible point of attack by the prosecution.

It was on this second point that the direct questioning of Brodd fell short.

Sure, Nelson got a narrative of justified use of force out of Brodd, but it was one that appeared had never been prepared or stress tested for resilience against cross-examination by skilled and motivated opposing counsel.  It looked good on the surface, but the failure to effectively armor this narrative of justification against attack on cross-examination left that narrative—and expert Brodd himself—humiliatingly vulnerable to damage on cross-examination.

And that’s on Nelson, much more so that it is on Brodd. Leadership gains the kudos of success, but also bears the responsibility of failure, and Nelson is the leader in this particular relationship.

That said, I personally cannot imagine ever recommending Brodd as a use-of-force expert witness in any case in which I’m involved, not after his performance here and in the trial of Chicago Police Officer Jason Van Dyke, who would go on to be convicted of murder in the shooting death of knife-wielding Laquan McDonald back in 2014. And that’s true even if Brodd were free, much less if he cost the $11,000 plus he was paid for services on this case.

Nelson’s direct questioning would have appeared to be going well on the surface, as Brodd provided testimony favorable for the defense on point after point.  At least, it would appear to be going well if one didn’t know the likely points of attack that would be made by the prosecution on cross—if one did know those likely points of attack, it was pretty obvious even on direct that they were not being sufficiently armored against attack.

Just as the state’s expert witnesses had done for the state, Nelson’s use-of-force expert witness said the magic words the defense required of him:  in effect, that Derek Chauvin was acting with objective reasonableness, following MPD and current national standards of law enforcement, in his interactions with George Floyd.

Nelson also had Brodd touch upon a number of truly important points in the necessary narrative of justified use of force.

For example, it’s not the severity of the initial call that controls how much force may be used, but how severe the interaction becomes over its entire duration—a call for a minor offense could become a deadly force confrontation.

Further, how much force a reasonable officer was obliged to use was, at the end of the day, a decision made by the suspect—whether they complied or resisted, and if they resisted to what intensity.

Nelson also had Brodd testify about the reality that a reasonable officer was permitted to use force not just against actions being taken by a suspect in the moment, but against actions which were imminently about to be taken (suspect reaching for an apparent, but not yet seen, weapon) or even heightened risks of harm (suspect refusing to show his hands, to maintain position, and so forth).

Nelson also had Brodd make clear that the factors involved in determining the reasonableness of a use of force included not just the three factors bulleted in the MPD manual—severity of the crime, threat of the suspect, resistance/flight of the suspect—but the entire totality of the circumstances and knowledge possessed by the officer.

Brodd also informed the jury that an officer could use force even if a suspect wasn’t using any force against the officer or others—for example, if the officer had a reasonable suspicion that a suspect had committed a crime, and the suspect refused commands to stop walking away, the officer could use force to detain the suspect, and even handcuff the suspect, without having to meet the higher requirements of a formal arrest.

As I discussed yesterday, when Nelson touched upon the issue of proportionately in the context of police use of force upon suspects, I really felt his conceptualization of this was very weak.  He once again presented this concept as one in which the officer is allowed to “up-level,” or what Nelson described as “one-upsmanship,” the degree of force against suspects, use one level higher force than the suspect.

Brodd fully agreed with Nelson’s approach here, but this conceptualization of proportionality, however, has real vulnerabilities to attack, and the prosecution would make full use of them

Nelson also touched upon the relevance of possible intoxication of a suspect, or possible large disparity in size or strength between officer and suspect, as important factors in evaluating threat and risk in police use of force, and once again Brodd agreed. Again, however, Nelson failed to armor these issues against attack, leaving them exposed and vulnerable on cross.

Brodd also confirmed that even a handcuffed suspect could continue to be dangerous to officers or others, or perhaps to attempt flight and escape.

Further, Nelson touched on the importance of matching a suspect’s words to their actions, and being alert to inconsistencies—both in the context of claimed distress as well as purported compliance.

On the issue of positional asphyxia, Brodd indicated that it was really only a risk for obese suspects—which Floyd obviously was not.

On the issue of the bystander crowd, even just two people could qualify as a crowd if they had gathered for a similar purpose.

Importantly, Brodd testified that in his view of the videos of the Floyd’s arrest he could clearly see Chauvin’s attention being distracted away from his suspect and towards the growing and increasingly hostile crowd.  (Did the mob kill Floyd?)

So far, so good.

Then, however, Nelson’s direct questioning of Brodd opened a huge target of attack for the prosecution, when Brodd testified that he didn’t consider prone restraint to be a form of use-of-force.

At. All.

Folks, that’s simply not a reasonable use of the concept of force.  It is common police practice to describe even mere physical presence or verbal commands as a form of force. Certainly anything involving the laying on of hands by an officer on a suspect is going to be considered a use of physical force.

Going hands on may not be a lot of force. It may be just minimal force. Maybe even the most minimal force imaginable.

But definitely force. Certainly not non-force.

The difficulty of describing prone restraint as zero force is that, first, it seems preposterous on its face, but second, it suggests that in that case only zero force was justified under the circumstances.  When the preposterousness is exposed, however, and the actual use of force revealed, then even the most minimal force appears unjustified under the circumstances.

Here’s the video of the direct questioning of Brodd:

Brodd Cross-Examination

Prosecutor Schleicher would make use of every one of these avenues of attack on cross-examination, and more. One indication of the value of Brodd as a witness for the state is that whereas Nelson spent about 45 minutes on direct questioning of Brodd, the state spent almost 1 hour and 20 minutes on cross-examination of him.

Schleicher immediately attacked Brodd’s view that prone restraint was not a form of force at all.

So, Floyd, in handcuffs, prone, on a hard street, that was not a use of force at all. Correct, answered, Brodd. Not even if the enforced position caused Floyd pain?  That position doesn’t cause pain.  Not even with a cop on top of your back and neck?  Not even given the abrasions to Floyd’s face and shoulder from the street?  (Schleicher didn’t mention, but should have, that Chauvin was also grippingd Floyd’s hand in an explicit pain-compliance technique.)

Given that description, and of course that Floyd was complaining of pain throughout, Brodd’s characterization of Floyd’s prone restraint as being one not involving pain or discomfort became ridiculous.

Ultimately Brodd would concede that perhaps Floyd’s prone restraint could have involved pain or discomfort—indeed, we would hear “could” and “possible” a great deal in Brodd’s testimony on cross-examination—which of course now meant that the prone restraint as applied to Floyd was, by Brodd’s own standards, a use of force after all.

A common occurrence in Brodd’s cross-examination was that Schleicher would make some claim favorable to the prosecution—for example, that Chauvin’s knee was on Floyd’s neck throughout the prone restraint, a claim that had already been contested throughout the state’s case in chief—and then essentially badger Brodd—the defense use-of-force expert witness!—into agreeing with the state’s position.

Another favorite tactic of Schleicher used in the cross-examination of Brodd was to isolate specific facts of the event, separate them from the greater context of the totality of the circumstances so as to place them in a light most favorable to the state, and then badger Brodd into conceding that this view was either correct, or at least possible.

Schleicher often facilitated this “facts in isolation” tactic by supplementing his cross with still photographs of the 9 minute plus prone restraint, or perhaps isolated 10 second videos obviously carefully chosen to maximize the apparent reasonableness of the state’s position, and minimize the reasonableness of the defense position.

Is a suspect’s intoxication, by itself, sufficient to justify a use of force by an officer? Can an officer use force on someone merely because they are intoxicated? Brodd agreed not. What about a suspect’s disparate size, could an offer use force on someone merely because they were much larger than the officer? Brodd agreed not.

Of course, nobody is attempting to justify the use of force on the basis of any of those factors in isolation—rather, those are among the many factors that play a role in the totality of the circumstances.

This necessary clarity of the use-of-force concept, however, was lost during Brodd’s cross-examination.

Schleicher showed Brodd various snapshots of the gathering crowd, staring with two people present, then four, then six—but all during periods when the crowd had not yet grown loud and hostile, but was still calmly filming events.  Was this calm crowd a threat to the officers that should distract their attention from Floyd? Of course not, and Brodd agreed. But, of course, what was missing was the relevant context of when the crowd was loud and hostile.

What Brodd should have done in each of these instances was simply to decline to provide a an opinion, to a reasonable degree of professional certainty (the relevant legal standard) by considering these elements in isolation. He should have explained that his role as an expert witness was precisely that, to deliver an opinion to a reasonable degree of professional certainty, and that meant considering the totality of the circumstances.

While it’s true that witnesses on cross-examination will largely be pressed to give just yes or no answers to questions from opposing counsel, expert witnesses are given considerably more leeway than are non-expert witnesses, and Judge Cahill has proven to be inclined to allow experts exactly that leeway.

Instead, Brodd would accept the single-factor hypothetical, which was of course carefully framed such that a yes favored the state, and then agree that the hypothetical was true—or at least “possible.”

These isolated, out-of-context questions touched upon such important issues as how much weight Chauvin was applying to Floyd—as if a still photo of a moment frozen in time could convey shifting weight balance over a 9-minute period.

Similarly, is it hard to move a suspect into recovery prone? No, it’s easy, answered Brodd.  Of course, the necessary context also involved whether the officer’s attention was diverted to the growing crowd, whether rolling Floyd backwards away from the cruiser would have dangerously exposed both Floyd and the officers themselves to passing traffic behind them, and even whether it reasonably appeared that doing so was a necessary precaution at all—after all, for most of that 9 minutes Floyd was talking, and EMS was believed to be just a minute or two away.

Isn’t the passing of a bad $20 bill really a small crime, no matter if the state lists it as a felony, compared to say domestic assault, which the state lists as a misdemeanor, at least in the context of risk of physical violence?  Sure, answered Brodd.  Of course, the necessary context is that the use-of-force upon Floyd was not premised on his passing of a $20 bill—for which he likely would have ended up with just a summons—but for his forcible resistance of the officer’s lawful efforts to place him in the squad car. Not even the prosecution contests that the police were privileged to their use-of force for that purpose.

Schleicher also effectively eliminated the notion that officers were privileged to use force to prevent an apparently imminent threat, or to mitigate the prospects that a reasonably inferred threat might occur. Under the Schleicher model there were either active threats—suspect violence in action in the moment, against which an officer could use force—or there were mere risks, against which zero force could be used by an officer. Period.

The simple truth is that not even non-officers have to wait until they are the victim of a violent attack before they can use defensive force.  We are all privileged to use defensive force to stop even an attack that merely reasonably appears imminent and has not yet been executed.

Another important consideration is that there is a distinction between offensive force and protective force.  Sure, an officer may be privileged to use offensive force to neutralize an active attack, or an imminent attack, or a reasonably inferred risk of an attack. But an officer can also use force for protective purposes.

For example, we’ve all seen in the movies where an officer places a hand on a suspect’s head as they place a suspect into a patrol car. That’s a use of force that’s not intended to neutralize an attack by that suspect, but to protect that suspect from head injury as he enters the vehicle—and it’s completely justified as such.

Similarly, if an officer saw an intoxicated person wandering near the edge of a cliff, he’d be privileged to use force to compel that person out of the zone of danger, even though the person presented no active threat to the officer or anybody else.

In this context, there is an argument to be made that for the early portion of the restraint of Floyd the prone restraint was being used to neutralize any threat he may present to the officers arresting him or to the process of arrest itself—but that for the last few minutes of the restraint it was being used protectively for the benefit of Floyd, to ensure that he didn’t regain consciousness on a busy road and that he remained present for the arrival of medical professionals.

Under the Schleicher model, however, it was either active threat, force allowed, or no active threat, a mere risk of a threat, zero force allowed.

And, sure enough, Schleicher badgered Brodd into agreeing that officers could not use force against a mere risk, thus zero force allowed—and surely after Floyd lost consciousness he was at worst a risk, not an active threat, and thus Chauvin was not privileged to use force against Floyd at all.

Schleicher also morphed the concept of “situational awareness” from one in which an officer was obliged to manage a difficult and complex array of sensory inputs, to a model in which an officer who failed to perfectly integrate every possible value without error failed to meet the standard of an objectively reasonable police officer—and when Brodd was questioned by Schleicher on these points the responses were yes, yes, yes, and the occasional, could.

This meant, in Schleicher’s telling, that it was nonsense to imagine that the hostile crowd might have distracted Chauvin from his suspect, but rather Chauvin had an absolutely legal obligation to pay perfect and equal attention to everything, simultaneously, without failure.

That, folks, is neither a reasonable expectation for any human being, nor is it a view that, if believed by the jury, makes things any easier for Chauvin’s defense.

As I mentioned, there’s about 1 hour and 20 minutes of this stuff, all about as equally bad as what I’ve described above, so I can’t possibly step through all of it. I do, however, encourage you to watch the video of Brodd’s cross-examination here:

There was also a re-direct of Brodd by Nelson, and I will say that Nelson made up some important ground there, ground not greatly diminished by Schleicher’s subsequent and very brief re-cross of Brodd.

By then, however, Brodd was in a very, very deep hole that he ought not to have been in to begin with. And, frankly, I wonder if the fault for the poor cross-examination doesn’t fall to Nelson as well. Perhaps Nelson drilled Brodd hard on how to handle the very predictable attacks brought to bear by Schleicher –but given that Nelson had not pre-empted these attacks on direct, I’m thinking perhaps that preparation did not occur. It certainly looked as if had not occurred.

Here’s the re-direct of Brodd:

And the re-cross of Brodd:

Bottom Line for Brodd Testimony

For me, the bottom line for Brodd’s testimony as the defense use-of-force expert witness in this trial was to deliver a perfect and coherent use-of-force justification that was largely, if not entirely, invulnerable to substantive damage upon cross-examination by the state.

I know that sounds unrealistic, but I can tell you I’ve seen it done. It was accomplished by the use-of-force expert in the George Zimmerman case, for example.

Because I don’t believe Brodd accomplished that necessary mission, in my view he felt short of requirements for this trial.  I’m not certain whether that’s more the fault of Nelson or more the fault of Brodd. I am certain, however, that it is Chauvin who faces paying the price.

Direct of Peter Chang, Parks Officer

On a more positive note for the defense, the testimony of Parks Officer Peter Chang was pretty fantastic for the defense.  This includes both the in-court testimony of Chang himself, as well as the “virtual testimony” provided by the body camera footage of Chang at the scene of Floyd’s arrest—which video captured a lot of “testimony” by such characters as Shawanda Hill, the female passenger in Floyd’s car, Morries Hall, the male passenger in Floyd’s car, and even Charles McMillian, the 61-year-old bystander witness of Floyd’s arrest.

Chang was on duty in a nearby park when he heard the radio chatter about Floyd’s arrest, including that police were taking someone [Floyd] out of a vehicle, believed he heard a struggle over the radio, and self-assigned himself as backup to the scene.

Chang had remarkably favorable testimony for the defense, perhaps most importantly that he perceived the growing and angry crowd as a prospective threat to the officers on scene.  Indeed, he described the crowd as “very aggressive” to the officers. Unfortunately, not as much was made of this on direct of use-of-force expert Brodd as I would have liked to have seen.

Even better than Chang’s actual testimony in court, however, is what was captured by his body worn camera.

First, the manner in which the footage of his camera continually panned left and right over the scene, from where he was tasked with controlling Hill and Hall by Floyd’s SUV, to across the street where the officers struggled with Floyd and then endured the insults and threats of the hostile crowd, was physical conduct that strongly reinforced his stated perception of the crowd as aggressive.

The commentary of Hill, Hall, and McMillian was particularly helpful to the defense.

Hill can be heard exclaiming aloud: “Man, [Floyd] STILL won’t get in the car. Just get in George!” and “WHAT is he doing? Now he’s going to go to jail!”

Morries Hall can be heard muttering about Floyd: “He over there fighting with the law and sh!t!”

McMillian is overheard telling Hill and Hall: “I saw everything, [Floyd] f’d up. He f’d up. I tried to get him to get into the car, told him he can’t win.”

It was pretty good stuff for the defense.

Here’s the direct of Peter Chang:

Cross-examination of Chang, conducted by Prosecutor Frank, was what I would describe as ineffective.  You can watch that here:

Direct Questioning of Shawanda Hill

Not only did Shawanda Hill, the female passenger in Floyd’s SUV and also described as his “ex-girlfriend” appear in the body camera footage of Officer Chang, she also appeared in court today to testify in person.

And, remarkably, overall her testimony was favorable to the defense, which would explain why despite being Floyd’s friend she was called as a witness by the defense and not by the state.

The most important part of her testimony for the defense was describing how Floyd was initially pretty regular in demeanor when he first attempted to pass a bad bill in the Cup Foods store, but that shortly after returning to the Mercedes SUV he suddenly fell asleep. Indeed, he fell into such a deep sleep that she could not rouse him, or when roused he immediately fell asleep again. It was bad enough that she gave up the idea of getting a ride home from Floyd, and called her daughter to come pick her up.

Once Nelson got that testimony out of her, he was done with her direct questioning, which you can view here:

On cross-examination Hill surprisingly presented some difficulty for Prosecutor Frank.  At one point when he was having difficulty getting a straight answer from her, she kindly offered to explain if he liked.  He invited her to do so.

Accepting his invitation, Hill immediately began a lengthy monologue about how Floyd had tried to pass a bad $20 bill, how he wouldn’t awake when police were knocking on his car window with a flashlight, how she was desperately trying to get him to rouse and comply with police, and—

At that point a horrified Prosecutor Frank abruptly interrupted her.

At which point she looked at him accusingly and said “YOU SAID EXPLAIN!”

Cross didn’t go any better for Frank after that.

Floyd fell asleep? Yes. But you woke him. Yes …. but then he fell asleep again.  But he did wake up? Yes … but he was not coherent at the time.

Frank switched to asking if Floyd had expressed any chest pains, shortness of breath, other similar symptoms of a heart attack, which Hill said he had not.

So, other than being sleepy and nodding off, he seemed normal?  Yes, Hill agreed.

Well, OK – but does that mean normal for an opioid addict high on fentanyl?

In any case that was it for cross-examination of Hill, which you can view here:

There was also a brief redirect of Hill:

OTHER WITNESSES

The other witnesses of the day were retired MPD Officer Scott Creighton, involved in Floyd’s year-earlier arrest-related drug ingestion event, and whose testimony included body camera footage of that event; retired paramedic and nurse Michelle Moseng, involved at the same event and the person who had observed Floyd’s sky-high blood pressure of 200/160 [!]; and Minneapolis Police Department medical training coordinator Nicole MacKenzie, recalled as a defense witness after testifying for the state earlier in the trial.

Their testimony is relatively short, and partly as a result worth listening to, but I’m afraid I’m out of time for providing commentary on it, and in any case it generally doesn’t require in-depth analysis.  I have, of course, included the video of their testimony below:

Creighton Direct Questioning


Creighton Cross-Examination

Creighton Re-Direct

Creighton Re-Cross

Moseng Direct Questioning

Moseng Cross-Examination

MacKenzie Direct Questioning

MacKenzie Cross-Examination

And that’s about all I have for all of you this evening for our end-of-day wrap-up commentary and analysis of today’s court proceedings. Don’t forget to join us again in the morning for our LIVE streaming and LIVE blogging of tomorrow’s court proceedings, as well as for tomorrow’s end-of-day wrap-up commentary and analysis.

Course Special: Lawful Defense Against Rioters, Looters, and Arsonists

Before I go, in view of the ongoing riots raging presently in Minneapolis, and likely to explode across the nation when this case arrives at a verdict (or mistrial), I’ve also taken the liberty of putting together a special opportunity to access our best-selling course, “Lawful Defense Against Rioters, Looters, and Arsonists,” available in both online streamed and DVD formats.  You can learn more about that course, by clicking here.

And thanks, as always, to both Legal Insurrection and CCW Safe for the support that makes my coverage of this case possible.

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. He wrote the first edition of the “Law of Self Defense” in 1997, which you can now order in its current edition for just the price of shipping and handling by clicking here.  To know YOUR state’s use-of-force laws in an actionable way that will keep you safer physically and legally, take our state-specific advanced use of force class either streamed online or via a shipped DVD with a 100% no-question- asked money-back guarantee, here:  Law of Self Defense State Specific Use-Of-Force Class.

[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]

 

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Comments

Mr. Branca,
I was hoping you could explain why a change of venue wasn’t granted in this case.
Is granting a change of venue exceedingly rare? I just can’t imagine what would ever qualify for one if this case doesn’t? Are there any high profile cases that have received a change of venue that you can think of?

Thank you!

    If I remember correctly, Minnesota only allows a change of venue in a very limited set of circumstances. I believe there has to be imminent danger for the defendant, not just a hostile jury pool or potential threats.

    Judge had discretion to order change in venue, but not unreasonably decided the entire state of Minnesota was awash in the Floyd propaganda, so what was the point?

      luckystars in reply to Andrew Branca. | April 14, 2021 at 12:33 am

      Polly Class murder case in Sonoma County, CA
      I got change of venue. I was called for jury duty and we all thought we were called for that case. A guy I worked with said ” We should all dress up in togas and show thumbs down, then drag him behind a pickup truck.
      My corrupt lawyer who I paid but blew the statute ran me out of money on a civil case.
      I lost the arbitration and was in pro per. So I was watching court cases and stumbled on the courtroom of her killer Richard Allen Davis. So they were arguing change of venue and I sent a note to the Judge telling him what I heard on jury duty.
      I got the trial moved out of the county. What I said to the judge is “you either believe in this system or you don’t. He can’t get a fair trial in this county, even he deserves a fair trial.”
      The press came to my house and I refused to speak to them.
      But bottom-line is what I said. That is the magic of this republic.
      Hey, I lived with a toddler 3 blocks from where this child was kidnapped from.
      It wasn’t about anything but the judicial rights we have as Americans.
      btw I am a visionary, and usually 20-30 yrs ahead of my time.
      Rest my case.

    Joeybags4 in reply to fogflyer. | April 14, 2021 at 7:02 am

    Because Minneapolis is stupid af and decided that there were still stores left in town which needed to be destroyed.

      lurker9876 in reply to Joeybags4. | April 14, 2021 at 8:46 am

      Or they were rebuilt from last year’s riots. Which I’m surprised if they did that. After this, I would not run a business anywhere in this town or state at all.

      Now Rashida and AOC are pushing for “NO POLICE!!!!” Imagine eliminating police, coast guard, military, and all that.

      This country cannot survive this “transformation”.

        drednicolson in reply to lurker9876. | April 14, 2021 at 1:43 pm

        They secretly mean “NO [local] POLICE!!!!”

        So they can replace them with Stasi-esque hired muscle in uniform who answer only to them.

        Ironclaw in reply to lurker9876. | April 14, 2021 at 7:47 pm

        They tried that, had to allocate an extra $26 million to try to recruit new cops when it didn’t work.

    Ben Kent in reply to fogflyer. | April 14, 2021 at 9:01 am

    DON’T LIE TO ME

    I am so angry. For months America was told by BLM and all the other race-baiters the cop was RACIST. The police are RACIST. The system is RACIST. It was the pretext for changing our society.

    In fact, the prosecutors never presented evidence that the cop was racist (which they would have if they had any – because it goes to possible motive). You can bet they looked very hard to find any credible evidence of racism and would have used it against him if they did find it.

    Le Bron James tweeted that the cops “are hunting blacks”

    None of that was true. AND we learn in this trial that Floyd “ate too many drugs” by his own admission. He O.D.ed. So, not only was he not killed by a racist cop – he wasn’t even killed by a non-racist cop.

    The amount of deceit and manipulation is astounding. Lies to advance a divisive agenda. People don’t like being lied to. When people learn the truth – they end up hating the liars. I think their will be a backlash.

    And trial should have been moved out of Minneapolis. Because, while its true the news is everywhere state-wide, other cities in the state don’t seem to riot at every chance they get.

Mr. Branca,

Based on your expert opinion of the legal system and trials in general, do you think that a conviction is what will most likely occur? Or do you think hung jury or acquittal is more likely?

Thank you!

    I’m a pro. I don’t wager on jury verdicts.

    Olinser in reply to oogabooga. | April 14, 2021 at 3:47 am

    With this jury the BEST that Chauvin can probably hope for is a hung jury with the numbers in his favor to possibly dissuade them from trying again. Without some unbelievable bombshell from the defense there’s no way a couple of the jackasses that the judge let through will vote for acquittal.

    Joeybags4 in reply to oogabooga. | April 14, 2021 at 7:05 am

    Im thinking the State has done just enough for lesser offence of second-degree manslaughter, which carries a maximum of 10 years behind bars if convicted.

    Not guilty on second-degree unintentional murder and third-degree murder. Minnesota state law differentiates between intentional and unintentional second-degree murder.

    The second-degree murder charge is punishable by up to 40 years in prison. Third-degree murder carries a 25-year maximum sentence.

Nelson has a very difficult job. Because of all the biased news coverage before the trial, the presumption of innocence is dead. Nelson will have to prove to the jurors that Chauvin’s actions did not cause Floyd’s death, even if Floyd was a “dead man walking” because of the large overdose of fentanyl/meth.

Even more difficult, Nelson will have to convince the jurors that they can safely vote “not guilty” without facing life-altering repercussions. I expect that any jurors who vote “not guilty” will be branded as “racists” for life, and their homes and families will be subjected to riots, threats, and probably arson.

Within hours after the verdict, the news media will violate any promises of juror anonymity and publish photos, names, and addresses of any jurors who fail to vote to convict. I wonder whether any jurors can vote honestly under this pressure.

    mailman in reply to OldProf2. | April 14, 2021 at 4:28 am

    Surely there are numerous examples of the same force being used on to make suspects compliant that didnt die? Should these examples be brought up with an explanation that the only difference is that those who survived having a knee applied to the back of the head to force compliance was that they were not high on drugs they had ingested to hide from the police?!!!?

    The Friendly Grizzly in reply to OldProf2. | April 14, 2021 at 7:07 am

    Within hours after the verdict, the news media will violate any promises of juror anonymity and publish photos, names, and addresses of any jurors who fail to vote to convict.

    There are things that – if they happened to a few journalists, preferably during live coversage – would stop that practice. Stating them in detail might raise the ire of the LI site owners, so I will not go into detail.

    Use your imaginations; your mileage may vary.

During my law enforcement career of 15 years, (followed by the practice of law for 23), I trained extensively in all aspects of use of force (empty hand/all batons/speed cuffing/all firearms) and was a certified instructor in 3 states in all of these disciplines. I say this not to brag, but to describe the basis of my opinions. I was fortunate enough to train with some of the foremost, nationally -known instructors such as John Peters and John Farnam. I am constantly amazed by the so-called expert witnesses in many of these police cases. Frankly, they almost all stink.

Kudos to you, Mr. Branca, in your continued coverage and detailed wisdom in your daily posts. I was also fortunate to both take both your state course and instructor course.

    Joeybags4 in reply to OldLawman. | April 14, 2021 at 7:07 am

    This “expert” was either threatened by BLM or just plain moron. I mean he couldnt explain his way out of wet noodle handcuffs.

      Gremlin1974 in reply to Joeybags4. | April 14, 2021 at 5:56 pm

      I am going with Moron. What use is an expert who can’t even defend his own opinions from such simple legal tricks?

This trial seems to be moving down a similar path, the cross examination is as powerful or more powerful than the direct. It’s almost like neither side is great on the offense and better on the defense. They haven’t had somebody internal audit the initial testimony in preparing the questioning for points of counter attack.
Brood went out on somewhat of a limb and given his experience should of had a better way to protect what he said on direct when it came to cross. I agree that Neloson left the door open as well, He let himself get caught up in the sippet game, he could have shut that down early by saying that he bases in opinion based upon the totality of the situation and not broken into individual segments

2nd Degree wasn’t even close to be proven. So if they convict it will be a manslaughter charge. Although maybe just maybe the riots will backfire on prosecution because I bet some jurors are afraid of being doxxed but the fear of not having cops on the streets is greater knowing your city is going to burn either way. F’ed up situation that should be a mistrial but the fact that Nelson only asked for sequestering the jury and not a mistrial is very interesting. Either he knows something we don’t by observing the jury and having their background or he is preparing for an appeal.

I thought Brodd should have answered “It depends” to about 90% of the State’s questions and force them to qualify the context.

Same as saying “it’s possible”…. but disallows the blank check he was giving the prosecutor who then spent it all over town like Floyd’s fake $20 bills.

    Gremlin1974 in reply to Andy. | April 14, 2021 at 5:58 pm

    “That really depends on the totality of the circumstances throughout the event, these things can not be taken in isolation”

    That is all he had to say.

Was that little talk the judge gave to Ms Hill before swearing her in normal? It almost seemed like he was trying to discourage her from testifying. Also why ask her if she would be willing to answer if asked if she was intoxicated on that day? It seems to me if a witness responds to a subpoena and shows up to testify a judge shouldn’t try to interfere in the process or try to coach the witness on what she can say (Judge: “you can’t offer an opinion on whether GF was intoxicated only on how he appeared”). Why not let defense counsel ask the questions and let the state raise objections if they feel the questions were out of line.

    KevinW1 in reply to Keith_. | April 14, 2021 at 12:25 am

    She had a lawyer and was going to plead the 5th so her questions were limited to just observations. Similar to Morice “Ricardo” Hall.

      Keith_ in reply to KevinW1. | April 14, 2021 at 12:49 am

      She said that she didn’t have a lawyer and the judge said that she could plead the 5th if she chose. I thought a witness either pleads the 5th – in which case answer no question – or agree to testify and answer each and every reasonable question posed.

        Christopher B in reply to Keith_. | April 14, 2021 at 6:00 am

        Not a lawyer but I suspect that it’s probably done on a ‘line of questioning’ basis, i.e. she couldn’t plead self-incrimination just to get Nelson to stop asking questions once she started giving her observations of the scene but could have done it if he switched to a new topic, say, where Floyd got the pills.

Midfiaudiophile | April 14, 2021 at 12:29 am

The other thing I noticed about Park’s testimony is the fact that the video actually proceeded to the fire engine arriving and then eventually leaving, showing the 5 minutes of wasted time in arriving at the hospital when “every second counts”.

Possibly Nelson has an emergency medicine expert that may have some thoughts on that delay and lack of information provided to attending doctor and their impacts on Mr. Floyd’s prognosis. Not as neat a solution as use of force, though.

Hi all,
I am new to the site and I am very impressed by both Mr. Branca and Mr. Jacobson’s thoughtful and insightful analysis. The comments are generally thoughtful as well. Thank you all for actually talking the time to watch the trial, unlike the majority of the media, who seem to be just cheerleaders for the prosecution. I understand why, I am a liberal, not one of these neo Marxist, woke lunatics claiming to be liberals, but an actual classical liberal. I believe the police sometimes are rude, abusive and very occasionally brutal. I also believe they are human beings, trying to do the best they can in environments that are often hostile, with suspects who obviously will say and do almost anything to stay out of jail. When I saw the Floyd video without any context. I found it revolting and I was pleased that the officer would probably be jailed.
I have a confession to make, for about 5 years I was addicted to opiates and meth. The only reason I mention this shameful aspect of my past is because I believe I can shed some light on this case. When an addict gets busted they will often swallow the drugs they are carrying for obvious reasons. When I learned Floyd had a 3 fold fatal dose of fentanyl I immediately suspected that he did this. When I learned that the pills contained meth in them as well I became convinced that this on top of his poor health killed him. Meth causes your heart to beat very quickly, the fentanyl depresses your desperation meaning while GF may have survived either the meth or the fentanyl the combination of the two meant his heart was beating faster than normal and because his desperation was compromised his body couldn’t cope and he had a cardiac arrest. Tragic, but not Chauvin’s fault. A quick aside about fentanyl, the police put out warnings in my city when the drug begins to flood the market, for street addicts to be extremely cautious. The tiniest dose can and often does kill hard core opiate addicts, and it kills them quickly. Hence GF going from alive to dead VERY quickly. Its especially tragic because had he been honest with the cops chances are they could have administered Narcan immediately (most first responders carry it now). And his life could have been saved. Narcan saved my life in a similar situation once.. Be honest if you’re overdosing, yes you might be busted but better busted than dead. Look up “goofball” overdoses for more information.

    Keith_ in reply to katesully. | April 14, 2021 at 4:49 am

    Great post! You make some great points. If GF had been honest with police and admitted he had ingested fentanyl and meth they could have administered Narcan – but he didn’t = GF’s death not Chauvin’s fault. I hope Nelson is able to make this point to the jury!

    Also you make a good point about how the combination of fentanyl and meth is especially lethal. Fentanyl depresses respiration rate while meth increases heart rate – a one-two punch that is hard to recover from! Again I hope that Nelson makes this point to the jury.

    goddessoftheclassroom in reply to katesully. | April 14, 2021 at 6:43 am

    I wish you all continued blessings of health and wellness. I lost my son a year and a half ago to fentanyl-laced heron.

    Char Char Binks in reply to katesully. | April 14, 2021 at 7:17 am

    You should be an expert witness. You seem to have more expertise than many of those admitted, and you won it the hard way.

I would be interested in hearing what Mr Branca thought about the Judge’s decision not to allow Mr Halls statements to police be admitted into evidence. Was there ever a good case to be made for an exception to the hearsay rule?

As a non-Lawyer I am really confused about this hearsay rule. A recording of a police interview of Mr Hall is not admissible because it is considered “hearsay” It would only be admissible if Mr Hall agreed to testify – which he refuses to do. Meanwhile it is OK to play video’s from that day in which jurors can hear the words of people who have not been called to testify on the stand. What about confessions made to police? If a murder defendant confessed of murder during interrogation after an arrest but pleads the 5th in court is that confession admissible in court?

    GWB in reply to Keith_. | April 14, 2021 at 6:39 pm

    It shouldn’t be the recording of the interview that was considered hearsay, but the content. I don’t know what wasn’t admitted, but if it concerned a situation of “his girlfriend told me X about him,” then it’s inadmissible. If he said “his girlfriend turned to me and said X” and X was related to what they were witnessing with GF, then it wouldn’t likely be hearsay. If she told him something about the year past incident, and he related it to the police, then it’s hearsay. Given this trial isn’t of GF, then a lot of things might be considered hearsay if they were about GF, and not the incident.

It seems that a lot of comments went missing.

The most devastating evidence the defence must over come is the original video that went viral of Chauvins knee on Floyd’s neck area .
I think just about everyone who first saw it said what the hell is that cop doing ,I know I did .
Yet looking at all the facts it’s become obvious that it was a self inflicted drug overdose and the knee had nothing to do with that .
But how do you convince people that still believe that is the cause of death ?
Even the States own expert medical witness said that there is no way the knee could cut off blood to the brain or block Floyds airway .
I was curious to see what pressure was on Floyd so I put my left knee on my weight scale at home with my right knee on the floor .
I weigh 165 lb but with my left knee on scale the scale with foot lifted off floor like in video the weight on scale was only around 20 to 30 lbs and could even shift my weight to have as little as 10lbs on the scale .
Those weights could obviously not harm anyone and in fact the state has never articulated how it could have .
Nelson must demonstrate in court with Chauvin putting his knee on Nelsons neck in exactly the same position and time as he had done on Floyd .
For sure Nelson would not be harmed and it would be , if the gloves don’t fit you must acquit moment.
It would be the only way to get it in people’s head that what they thought when they first saw as a fatal action is actually harmless.

    Joe-dallas in reply to kevinbrown. | April 14, 2021 at 7:52 am

    Kevin’s comment – “I weigh 165 lb but with my left knee on scale the scale with foot lifted off floor like in video the weight on scale was only around 20 to 30 lbs and could even shift my weight to have as little as 10lbs on the scale . ”

    My educated guess would have been in the 25-30lb range with 35lb being the max, the weight is split between the two legs. Most of the weight is still on the foot. Fwiw, I am a competitive cyclist, and the body weight on the saddle( seat) is only 20-30 lbs, leaning forward on the handle bars is only in the 3-4lb range. So your test reaching only 20-30 lbs is clearly reasonable.

      So… where is the rest of your weight? I assume an average sized bicyclist, maybe 130+lb? You’re really continuously putting ~90 pounds on the pedals? All the time? (I’ve spent some time riding bikes, and I spent plenty of time sitting. Just saying.)

    Midfiaudiophile in reply to kevinbrown. | April 14, 2021 at 12:57 pm

    “Yet looking at all the facts it’s become obvious that it was a self inflicted drug overdose and the knee had nothing to do with that .”

    Prosecution presented 5 respected physicians (Medical Examiner 1, Medical Examiner 2, Pulmonologist, Cardiologist, Living Forensic Pathology) that opined that the drugs weren’t the cause of death. They also presented data from NMS Labs on the fact that there are a significant number of DWIs (about 25-35%) among opioid users that occurred at similar or higher levels of blood fentanyl concentration.

    That’s pretty overwhelming testimony on the overdose front. It would be irresponsible of jurors to ignore it absent extremely strong medical testimony from the defense. Now, you or I, doing our own research and using our past knowledge might come to the conclusion that the medical experts overstated their confidence in that front and reach reasonable doubt… but jurors aren’t supposed to work that way.

      “They
      also presented data from NMS Labs on the fact that there are a
      significant number of DWIs (about 25-35%) among opioid users that
      occurred at similar or higher levels of blood fentanyl concentration.”

      What percentage of those DWI overdose cases survived only because they were given NARCAN, and would otherwise have been overdose fatalities?

        Midfiaudiophile in reply to Andrew Branca. | April 14, 2021 at 1:43 pm

        That is an extremely interesting question that I hadn’t thought of, and truthfully I don’t have any idea.

        Midfiaudiophile in reply to Andrew Branca. | April 14, 2021 at 3:25 pm

        I’ll add that based on what I’ve heard from Dr. Fowler so far, he is exactly the sort of compelling expert medical testimony that may allow jurors to ignore some of the comments made by prosecution experts, especially insofar as he explains how they might have missed some signs without assigning blame.

    Those weights could obviously not harm anyone
    That’s where I’m going to disagree. Even 10lb can cause serious damage if applied in the wrong place, in the wrong way.
    Now, that doesn’t mean I think any pressure from Chauvin necessarily killed GF.

      lurker9876 in reply to GWB. | April 14, 2021 at 6:48 pm

      Well, if I dropped a 10 lbs weight onto my toe from six feet high, my toes will definitely hurt big time. So this would be applied in the wrong place and in the wrong way.

      Fowler used several studies, some mentioned burking done back in the medieval times. Burking means forcing a victim on the surface and place stones atop of the victim and after a long while, the bystanders would sit on top of the victim until the victim died after maybe 30 minutes to an hour. I’m making up the numbers but someone did post about this.

Thanks for your kind words Keith! I hope Nelson is able to put these points forward too. I So much of what we (the public) were told about the Floyd case is untrue. I feel a great amount of sympathy for the man, I know how hideous addiction is to get over first hand. I also had my share of cops that weren’t very kind when I was using so I obviously wanted Chauvin strung up when I first saw that video. Now, although I could never say it to most of my fellow liberals I hope he gets off. He isn’t a perfect person and his actions weren’t perfect that day, but I feel he and the other officers did the best they could in a situation where, like most suspects including me back in the day routinely lie to police. If anyone on this board happens to use opiates, or has a friend/loved one who does, consider buying Narcan over the counter. Its kinda like an episode pen for an allergic person.. Not always, but sometimes you can feel yourself going under. I’m guessing thus happened to GF when he slid down the police car.

Two quick things about what he said, at one point he said “My face is gone” this suggests a meth freak out which my be why he was very very anxious about getting in the car and terrified he’d be shot. Also bear the end, just before he became unresponsive he said “Tell my kinds I love them.” And kept insisting he was going to die. Addicts know when they’ve taken too much and probably won’t survive. When I would overdose I could always tell it could be the end. Fentanyl has killed two friends of mine and they were daily users of heroin. Mix it with meth and it would be more shocking if GF hadn’t died. A total tragedy for all involved.

    Ben Kent in reply to katesully. | April 14, 2021 at 9:10 am

    Kate – Your comments bring a new dimension to this. Thank you. I’m thinking the defense should have a former addict testify as an expert about the experience of overdosing. This would put things in perspective and add clarity.

    It is wonderful that you overcame your fetanyol addiction. Stories like yours are insirational.

I could be mistaken, but I think the lack of multiple experienced defense attorneys engaged in witness prep is clearly showing in Brodd’s direct and subsequent cross. Having one defense attorney in a case of this magnitude doesn’t allow for a fresh set of “eyes” on evidence and several attorneys thinking of all the possible “traps” into which their witness could fall (and the direct questioning could fail to avoid) during witness prep.

I have only been following this from a distance but after yesterday, I’m beginning to believe the Attorney General planned to have this case heard in the Spring so when they failed to make their case, there would be nicer weather for the Burn Loot Murder riots.

Thank you so much Ben! Addiction is such a waste of time and energy and I’m so glad that at least do a tiny bit of good can come out of my experience. What I remember from my one overdose on only opiates was my mind telling my lungs to breathe but it was like the connection from my brain to my body wasn’t working. I knew I was going to die, but couldn’t force myself to breathe. Luckily a friend saw me and slapped and shook me. People criticized Chauvin for keeping the hold in place but when I came too I was fighting and would have tried to get anyone holding me down off of me. Another poster wrote about the brain being in fight or flight mode from trying to save your life and he/she was right. Plus many times I took a lot of meth I would panic and I could easily imagine believing anyone trying to help me was trying to hurt me. Especially if it was a police officer. When most meth addicts are home or in their cars they’re always keeping out the window looking for the police. I could easily see GF coming too and being in a panic over the police. He could have even tried to run away and been hit by a car. It’s a huge tragedy that GF died but it will be a greater tragedy if the man who was trying to help him is punished for it. He was doing the best he could in a horrible situation, people don’t realize how VERY VERY quickly you can go from alive and fine to dead with just a tiny bit of fentanyl.

Katie J. Sullivan 🍀

What happened with Day 13 thread and what are Nelson’s plans for today? Aside from the new motion of acquittal with Carhill’s expected denial.

on a busy road
I keep hearing this and am just dumbfounded. No one decided that directing traffic at least one lane away from the officers trying to restrain Floyd would have been a good idea? There were two police cars tehre, and no one in 10 minutes thought blocking a lane with the other police vehicle was a good idea?

How much might this have given Chauvin some “breathing room” as far as relaxing the force used on Floyd?

Brodd was a Train Wreck, he came across as either not knowing his subject and/or he just seemed king of stupid.

Well, at least this testimony answers the question I’ve heard a couple people ask, which is, “who the heck passes a bad $20 bill, and then goes back out to his car and just sits there waiting for the police to show up?” So the answer is, “a guy who just can’t wake up.”

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