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.
Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial can access the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including Pandora, iHeart, Spotify, Apple Podcast, Google Podcast, simple RSS feed, and more.
Before I jump into the substance of today’s testimony, I’d like to make a concession, or at least a change of opinion, with respect to Defense Counsel Nelson. During jury selection there were numerous instances in which it appeared to me that he was being overwhelmed not just by the quantity of prosecution counsel—there are 10 or 12 prosecutors working this case, and only one Nelson—but also by the quality of prosecution counsel. The concern I had was that perhaps Nelson was simply not up to this case.
My concession is that after watching Nelson working in the trial proper, I’ve been extremely impressed by his performance. While it’s hard to score the lawyer until the very end of the case, because you never know what they might be intentionally delaying as part of trial strategy, or how they’ll perform when it is time for them to be on offense during their case in chief rather than on defense while the state calls witnesses, I’m pleased to be able to say that Nelson is performing at a level vastly greater than I’d feared might be the case.
So, Counselor Nelson, I tip my hat. With that out of the way …
Today’s court proceedings brought us five more state witnesses. Once again, none of today’s state witnesses appeared to substantively advance the state’s narrative of guilt—never all that clearly stated even in opening statements—and all provided gems useful to the defense narrative of innocence (or, at least, and more technically accurate, of non-guilt).
Today’s witnesses consisted of one Courteney Ross, Floyd’s co-addict lady friend, Seth Bravender, the driver of the ambulance that arrived on scene and a paramedic, Derek Smith, the second paramedic on the ambulance, Jeremy Norton, a Captain on the Minneapolis Fire Department, and David Pleoger, the now retired MPD Sergeant who was in charge of the officers involved with Floyd’s arrest.
The first of the state’s witnesses today was Courteney Ross, who shared Floyd’s drug addiction with him (they met as addicts), and who has been variously characterized as Floyd’s girlfriend or fiancé.
I’ll note that it’s been my experience in these politically charged cases that often the most tenuous of romantic relationships may get recast as a formal betrothal, to provide some social credit that might otherwise not exist, and it’s impossible to really determine the true nature of the relationship. Accordingly, I’m falling back to my grandmother’s description of such things, and referring to Ross as Floyd’s “lady friend.”
Direct questioning was conducted by Prosecutor Matthew Frank, and of course cross by Defense counsel Eric Nelson.
At this point it perhaps goes without saying that Ms. Ross also had a catastrophic emotional breakdown on the witness stand, complete with sobbing and gasping and tears. She partly explained her reaction by noting how devastated Floyd had still been over the loss of his mother, appealing to the video of Floyd calling out “Mama!” as he died. This whole bucket of emotional appeal would take on a very different air once Ross was subject to cross-examination, as we’ll see.
Generally speaking, Ross testified with the kind of evasiveness we’ve come to expect from state witnesses, including telling part rather than the whole truth in response to defense questioning, claiming she couldn’t recall what she’d previously told investigators and compelling the defense to refresh her recollection with transcripts—and this only goes one way, it seems, the only forgotten prior testimony is that which would be helpful to the defense—and so on.
I already covered two of the most notable aspects of Ross’ testimony in our BREAKING post this morning, which you find here: Chauvin Trial BREAKING: “Mama” Was George Floyd’s Nickname For His Drug-Sharing Girlfriend
In that blog post I wrote about the revelation, disclosed on cross-examination by the defense, that Floyd’s pet name for Ross, and the moniker under which he had her listed in his cell phone was “Mama.” Was she the “Mama” he was calling for while restrained on the street.
I also wrote about Ross recounting that Floyd had experienced a previous overdose in March 2020 taking pills similar or identical to those he took on May 25, during which she had to bring him to the hospital because he was experiencing intense stomach pain—much as he was experiencing on May 25 when restrained by police after self-ingesting a bunch of these pills in an effort to avoid their discovery by police.
Further, Ross herself had back in March taken some of these same pills and reported to investigators that she thought they were going to make her die—much like Floyd was saying he felt he was going to die while restrained on May 25 after his self-ingestion of similar pills.
She noted that her “normal” opioids were relaxing and took her pain away, but these strange pills acted as a stimulant, such that she was jittery and couldn’t sleep all night. She had also told investigators that in that March overdose she observed foam around Floyd’s mouth—just as his mouth was foaming on May 25.
This is important evidence, because of the state’s argument in opening that it couldn’t have been the fentanyl in Floyd’s system that killed him, because fentanyl (an opioid) makes people sleep when they overdose on it, and Floyd was clearly not sleeping.
To the extent the drugs ingested by Floyd also contained methamphetamine, however (and we know that the found pills contained both), then they also contained a stimulant, which could explain Floyd’s energized state in forcibly resisting lawful arrest against multiple officers for some 10 minutes.
The meth would also explain why Floyd’s pupils didn’t demonstrate the pin-prick constrictions of fentanyl overdose, but were instead dilated—a condition the state used to argue, again, that it could not have been fentanyl that killed Floyd–the dilation would be induced by the meth component of the drugs.
All of this, of course, suggests an alternative cause of death other than Chauvin’s knee, and that is the self-induced overdose of Floyd via that pill ingestion on May 25.
Cross-examination also revealed that Ross had told investigators that she believed Floyd to have been “clean” (off drugs) for a substantial period of time leading up to May 25, perhaps right up until just two weeks prior to his death.
This “clean” period suggests all kinds of considerations with respect to the question of tolerance, which in turn touches on whether Floyd had such a high tolerance to his drugs of choice that even a three-fold fatal dose might not be able to kill him.
I hesitate to dive into these issues in depth, because I claim no expertise in the medicine of illicit drugs, drug addiction, or tolerance, other than that gained by interaction with addicts and those who treat them.
That said, I don’t believe tolerance works to make an addict more resilient against death by overdose, but merely makes it harder to get the desired high. The mechanism of death by overdose and the mechanism of the high are fundamentally different. The brain develops tolerance to the drug and so requires a greater concentration of drug to get the same high. But that has nothing to do with how the drug kills. In the case of fentanyl, death is usually the result of the drug achieving a level sufficient to stop respiration—and I don’t believe the body develops any tolerance to that biological mechanism.
In other words, if an addict first needs 2 units of drug to get high, he’ll eventually need 4, then 8, then 10, etc. But if a fatal dose is 20 units, then whenever the addict hits 20, he dies, and it matters not a whit how much tolerance he’s developed in the context of getting high. Indeed, one of the great dangers to addicts is that they grow ever closer to fatal overdose as their increasing tolerance to achieve a high demands doses that approach ever closer to fatal levels.
Again, however, that’s a layman’s understanding of these issues. I look forward to hearing expert testimony during the trial.
We also learned from Ross that the passenger in Floyd’s car, Maurice Hall, the man who had earlier tried to pass a bad $20 bill to the clerk in Cup Food and been rebuffed, was apparently Floyd’s drug dealer, or at least one of them.
This provides some insight to why that man’s legal counsel suddenly announced yesterday that if his client was called to testify in Chauvin’s trial he would refuse to provide testimony and would plead the 5th. If I were the drug dealer involved with a fatal overdose of a client, I suppose I’d be pleading the 5th, as well, as I’d be liable to a murder conviction.
Interestingly, the pills that caused Floyd’s hospitalization because of intense stomach pain, and that acted as a stimulant on Ross, back in March, were essentially identical to the pills consumed by Floyd on May 25, 2020, the day of his death.
Note that if the state wanted Hall to testify, that is if Hall’s testimony was going to be favorable to the state and increase the prospects of convicting Chauvin, the state could simply immunize Hall and compel him to testify. The fact that the state is not doing so strongly suggests that they have reason to believe Hall’s testimony would be favorable to the defense and decrease the prospects of convicting Chauvin.
Justice, much?
Re-direct of Ross by Prosecutor Frank came across as particularly weak.
He asked Ross if Floyd had died in his March overdose taking essentially the same pills—obviously he hadn’t—as if this meant that it was physically impossible for Floyd to have died of the same pills on May 25. After all, the overdose in March merely hospitalized him, surely that means they can’t kill him, right?
Oofah.
Unfortunately for Frank, Ross’ response to this line of inquiry only helped the defense—how often does that seem to happen with these state witnesses? When he asked her, in effect, he took the pills in March and they didn’t kill him then, right, she answered: “No. In fact, he had a lot of energy.” Again, driving home the role of the stimulant methamphetamine component of the drug cocktail in all of this.
Here’s the video of Ross’ testimony on direct, cross, and re-direct:
Ross Direct Questioning
Ross Cross-Examination
Ross Re-Direct Questioning
The second of the state’s witnesses today was Seth Bravender, the driver of the ambulance that responded to the Floyd scene, and a paramedic who helped provide care to Floyd as well as driving him to Hennepin County Medical Center (HCMC).
Direct questioning was conducted by Minnesota Assistant Attorney General Erin Eldridge, apparently one of the few of Attorney General’s Keith Ellison’s actual staff attorneys whom he trusted to participate in the case (most of the other prosecutors on the case are high-end private attorneys brought in specifically for the purpose). Cross examination was, of course, conducted by Defense Counsel Eric Nelson, the only attorney on the defense “team.”
An early interesting reveal in Bravender’s direct testimony arose when Eldridge asked him to describe his training. He noted that he’d first been an EMT, and that required relatively little training, a 6 credit college course, but that now he was a paramedic, and that took a year-long course of instruction.
This is notable because while MPD officers will have had some first aid training, they are not trained to even the level of an EMT (the standard for the Minneapolis Fire Department). That means that the first-aid training of MPD is way, way below that of the paramedics who were en route to the Floyd scene with code 3 lights and sirens.
Would it be reasonable for a police officer, trained below EMT standards, to simply wait the mere couple of minutes he expected it to take for the highly trained paramedics to arrive, rather than attempt to provide basic first aid in a busy street and in the presence of an angry and hostile mob threatening imminent physical violence?
I would think so.
It’s also notable that Bravender noted that the time interval between receiving the code 2 (non-emergency medical call) and the code 3 (emergency medical call, lights and sirens) was only about a minute and a half. It wasn’t as if the officers on scene waited 10 minutes before escalating the call from code 2 to code 3. They saw that Floyd had bloodied his nose in resisting arrest, called the code 2, then within 90 seconds escalated that to a code 3 when they realized Floyd was in greater distress than a bloody nose could explain.
That strikes me as pretty prompt.
Bravender also provided important testimony that buttressed the defense argument that the angry, hostile, and imminently threatening crowd was an important factor in decision-making at the scene. Bravender and his paramedic partner Smith both quickly decided to do a “load and scoot” on Floyd, rather than attempt to treat him on site, in part (I expect in whole) because of the presence of the angry mob.
The state tried to undercut this view of the mob in two rather dishonest respects.
First, they kept asking if anyone in the mob had actually attacked the officers or paramedics. Of course, that’s not the point. The mere presence of a threatening mob is sufficient to influence decision making, without having to experience an actual attack.
Second, Eldridge repeatedly conflated the matter of “moving” Floyd into the ambulance, where the paramedics; equipment was located, and “moving” Floyd three long blocks away from the scene before providing care so that the mob could be escaped.
By conflating these two, she suggested that the reason for the move was to better provide Floyd with care, and by implication not to escape the mob.
Providing better care is certainly the reason to move Floyd into the ambulance. It’s clearly not the motivation for providing him only limited (one paramedic) care until the ambulance has driven three long blocks away.
A key theme hit by Eldridge repeatedly through her direct of Bravender was the notion that Floyd’s death was the result of a delay in beginning chest compressions, and by implication therefore the death was a result of the police not beginning chest compressions earlier.
After all, however limited their medical training, anybody can do simple chest compressions. This failure constitutes an unlawful killing!
Of course, this begs the question that the officers knew chest compressions were appropriate and necessary, and likely to make a life-saving difference.
First I question whether they had this subjective awareness. We heard repeated testimony today, or saw it on video footage, of the various officers attempting to assist the paramedics in helping Floyd. Chauvin himself helped get Floyd onto the gurney and helped guide the gurney to the ambulance. Another of the four officers, I forget now which but whose body camera ID ended in 5Z7, joined Floyd in the ambulance at Chauvin’s direction, and provided chest compressions to Floyd while the ambulance drove those three long blocks away from the mob and until the fire department arrived at the ambulance.
Unlikely conduct for racist police murderers, I think.
The direct questioning of Bravender by Eldridge further provided support for the defense narrative of the angry mob when body camera footage of the paramedics on the scene was played. The voice of MMA “expert” Williams as well as that of 1-year off-duty firefighter Hansen can be clearly heard calling the officers “b!tch.”
Once again, overall I thought the direct questioning of Bravender was more helpful to the defense than it was to the prosecution.
On cross-examination by Nelson, more points were scored for the defense. In particular, Nelson did a good job on cross in getting Bravender to acknowledge the very different roles of the police on the one hand and EMS on the other. For example, it’s the police who have to deal with the danger of the scene—EMS will stage some distance off and wait for a code 4 (all safe) before coming in to provide care.
Bravender also recounted frequently coming upon scenes in which police were struggling with a suspect.
On another important issue, Nelson asked Bravender if sometimes people who overdose become violent when they are resuscitated or regain consciousness. Although the state objected, Cahill allowed the question, and Bravender answered in the affirmative. Indeed, Bravender testified, he’d personally seen it happen.
Further, Bravender testified that when they were called out on an overdose call, it was standard practice for them to be accompanied by police—precisely because of the heightened danger of such circumstances.
Bravender also agreed that he’d told earlier investigators that when he arrived on scene Floyd was on his left side. This is important because the state is in part arguing that Floyd died of positional asphyxia because he was kept prone on his stomach, and should instead have been in the “recovery position.” Well, the recovery position is to be up on one side of the body, and the left side suits this purpose just fine. Thus Bravender’s description placed Floyd in precisely the recovery position the state argues was appropriate.
Nelson also asked Bravender if the ambulance carried ketamine, and when the answer was affirmative Nelson asked why. The answer, of course, is that ketamine is a powerful sedative that can be used to calm violently resisting suspects, many of whom are violent because of drug overdose.
This both highlights the risk police officers face in handling overdose calls, but also provides a subjectively reasonable basis for the officers to want to wait on the ketamine paramedics believed to be moments away rather than provide care to the apparently overdosed Floyd themselves.
Here’s the direct, cross, and re-direct of Bravender:
Bravender Direct Questioning
Bravender Cross-Examination
Bravender re-Direct
Bravender re-Cross
Next up was Derek Smith, who was Bravender’s paramedic partner on the ambulance (Bravender was the driver and paramedic, and Smith came across as the senior of the two.
I’ll jump right to the money on Smith, and this occurred during his cross examination by Nelson, when Smith expressed the belief that “there was no reason the cops couldn’t have started chest compressions on Floyd sooner.” I’m sure those on the “lynch Chauvin now!!!!” bandwagon will take this statement as some kind of definitive proof that Chauvin is criminally responsible for Floyd’s death.
Of course, it’s nothing of the sort. First of all, there’s no way to know if providing chest compression earlier would have been of any use to a badly overdosed Floyd with existing serious hypertensive and cardiac disease, and a three-fold fatal overdose of meth/fentanyl drug cocktail in his system.
Absent Narcan, which the officers didn’t have, they would have been doing chest compressions on a patient likely already dead or who was otherwise beyond saving.
Further, Smith’s comment is from the perspective of a paramedic with the narrow mission of saving the life of his patient. He knew nothing about what had gone on before he arrived on scene, nor of the many policies and tactical considerations relevant to the police but not to himself.
After all, Smith had the option to “load and scoot” Floyd and immediately evacuate the presence of the angry, threatening mob, all the while able to rely on being defended by the officers if things went bad. Chauvin and the officers did not have the option to simply run away.
To put it another way, just because Smith would have preferred that the officers had provided chest compressions in the presence of the angry, threatening mob, even if would have added as little as 1% better chance of survival for Floyd, that opinion is completely detached from the broader context with which the officers were obliged to deal. It’s merely an opinion, not an authoritative conclusion, and a poorly informed opinion, at that.
Otherwise, Smith’s testimony was rather boring. In essence the entirety of his testimony was that Floyd was apparently dead when Smith got on scene, he was dead when the ambulance fled the three blocks, he was dead when the fire department joined him, and he was still dead when the ambulance dropped Floyd off at Hennepin County Medical Center.
As with Bravender, in direct of Smith Prosecutor Eldridge pushed hard on the notion that Floyd’s death could be attributed to the transient delay of the officers in providing earlier care to Floyd, but again all this ignores the tactical environment in which the officers were making their decisions.
Smith was subject to only direct examination by Eldridge and cross by (of course) Nelson, and here are those videos:
Smith Direct Questioning
Smith Cross-Examination
The next state’s witness was Jeremy Norton, a Captain with the Minneapolis Fire Department.
Bottom line with Norton was I really didn’t see his testimony as being at all helpful to the state—except, perhaps in acting as a “white knight” for off-duty firefighter and bystander witness Hansen—and to the contrary chunks of his testimony struck me as favoring the defense.
Yes, again, another state’s witness whose net testimony appeared to benefit the defense more than the state.
(It’s hard to overemphasize how familiar this pattern is to me based on my experience covering the George Zimmerman trial—probably because of similar drivers, both being apparently politically-motivated prosecutions lacking the substance necessary for an evidence- & law-based finding of guilt.)
Again, Eldridge led direct here, and it was just boring, boring, boring. If anything, it made the fire department look bad.
First the department received a code 2 for a mouth injury, just like the paramedics, then it was upgraded to a code 3 for lights and sirens, just like the paramedics. When the fire department actually got to Cup Foods, however, the ambulance had already fled the angry mob.
As a result, the fire department personnel basically looked around, saw nothing, entered Cup Foods looking for a patient, again saw nothing, and finally came across a police officer in the back of the store who told them they were supposed to be meeting the ambulance three long blocks away. So they loaded back up in their truck and took off to find the ambulance.
Not exactly a sterling example of professional performance.
Now, perhaps this wasn’t the fault of the fire department—maybe they did everything perfectly. But it certainly was not the fault of the police officers, whose only role is to make the medical calls to dispatch. After that the call is out of the officer’s hands. And the more it looks like fault might lay in hands other than the police, the weaker the prosecution’s narrative of guilt looks.
On cross-examination Nelson again scored important points, this time walking Norton through the timeline of events involving when the police placed their medical calls and when the fire department actually showed up. That time interval was approximately 12 minutes, vastly greater than off-duty firefighter Hansen had claimed was typical, and presumably much longer than the officers on the scene could reasonably have expected.
Again, maybe this 12-minute response time was no fault of the fire department, who knows. But it certainly wasn’t the fault of the officers, and accordingly again diminishes the prosecution’s narrative of guilt.
On re-direct, Eldridge tried to do damage control by conflating the time interval between when the police made the medical call and when the fire department arrived, on the one hand, and when the fire department received that call and arrived, on the other. The latter interval may be important in determining fire department performance, but it’s irrelevant to the reasonable perceptions of events by the officers on scene—all they knew was that they’d made the call for code 3 medical, and the fire department wasn’t there yet, and when fire did show up, it was too late.
Norton was subject to direct by Eldridge, cross by (of course) Nelson, and re-direct by Eldridge, and here are the videos of that:
Norton Direct Questioning
Norton Cross-Examination
Norton Re-Direct
The last witness of the day was David Pleoger. Now retired, on May 25, 2020 Pleoger was the MPD Sergeant responsible for the precinct zone in which the Floyd event took place, and the supervisory sergeant over Chauvin, Thau, King, and Lane.
Pleoger was questioned on direct by Prosecutor Schleiter, and on cross by (of course) Nelson.
Pleoger struck me as testifying with no particular bias, although of course he exists within the larger political dynamic of Minneapolis and a year’s worth of propaganda around the case, and it would be difficult for that to have zero impact. Still, he struck me as giving pretty much “just the facts” testimony.
It appeared to me, however, that the prosecution had placed a large bet on Pleoger. Specifically, the state wanted Pleoger to testify before the jury, unequivocally, that Chauvin’s continued use of the knee restraint in the three minutes or so between when Floyd appeared to stop moving and the paramedics arrived, was an excessive use of force, period.
Because of his even-handed testimony, I expect people watching Pleoger will draw from his testimony whatever it is they most want to see.
When asked by the prosecution if it wasn’t true that sometimes police officers used more force than the circumstances called for, Pleoger answered in the affirmative.
Conversely, when asked by the defense if it wasn’t true that sometimes police officers were compelled by circumstances to use more force than might otherwise be the case, Ploeger again answered in the affirmative.
Both of these answers are correct—the appropriate amount of force is determined by the totality of the circumstances, and it’s both true that greater force than necessary under the circumstances is excessive and unlawful and that the circumstances may require a greater degree of force than might otherwise be the case.
In the case of Prosecutor Schleiter, he was looking for Pleoger to make a blanket statement that Chauvin’s knee restraint was excessive, period. Schleiter wanted this opinion to be based on Pleoger’s experience doing use-of-force reports as part of his job as a police sergeant.
Nelson, of course, wanted to emphasize the circumstantial dynamic of use-of-force situations. Further, he objected to the state’s efforts to extract a definitive use-of-force opinion specific to this event because Pleoger had not comprehensively reviewed the use-of-force evidence in this case.
Specifically, although Pleoger as a sergeant would routinely review, in a comprehensive manner, routine use of force events involving his officers, once an event was escalated to a so-called critical incident—such as the death of a suspect, as in the case of Floyd—the use-of-force investigation was escalated out of his hands to higher authority.
As a result, Pleoger never did anything like a thorough use-of-force investigation in this case. At most, he’d reviewed the body camera footage, and even that only at the late request of the prosecutors.
As a result, the defense argued in a period during which the jury had been removed from the courtroom, precisely to allow this argument out of the jury’s hearing, Pleoger might be able to provide the jury with a use-of-force opinion, but only an uninformed opinion, not an informed opinion, much less an authoritative decision.
After this argument outside the hearing of the jury, the jury was called back in and Cahill allowed Schleiter to ask Pleoger a very narrow use-of-force question. Schleiter got the answer he wanted, but the context was so tightly constrained that I don’t see it as having caused much harm to the defense.
That said, were I the judge in this case, I’d not have permitted the question, given Pleoger’s relatively uninformed state on the use-of-force facts of this particular case. In any case, of course, we have a great deal of additional use-of-force testimony to come in this trial.
Because of the jockeying between the state’s efforts to drag a purportedly authoritative use-of-force call out of Pleoger, and the defense efforts to foil this, poor Ploeger was subject to direct by Schleiter, then cross by Nelson, then re-direct by Schleiter, then re-cross by Nelson, and finally a re-re-direct by Schleiter.
The videos of all that, plus the argument between counsel that occurred outside the hearing of the jury, can be enjoyed here.
Pleoger Direct Questioning
Legal Argument Outside Hearing of Jury
Pleoger Direct Questioning (completion)
Pleoger Cross-Examination
Pleoger Re-Direct
Pleoger Re-Cross
Pleoger Re-re-Direct
OK, folks, that’s all I have for all of you today.
Join us again tomorrow morning for our LIVE coverage of the court proceedings in Minnesota v. Chauvin, and for our end-of-day wrap-up commentary and analysis, both right here at Legal Insurrection.
Until next time, stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service. If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here: Law of Self Defense Membership Trial.
[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]
CLICK HERE FOR FULL VERSION OF THIS STORY