Knowledge of Witnesses Limited Solely to Body Cam Video Provided by Prosecution
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.
Today’s court proceedings brought us only two new state’s witnesses, largely because the court had decided to adjourn mid-day, presumably to get an early start on the weekend.
The first of these was MPD Sergeant John Edwards, whose testimony was perhaps administratively necessary, but added little to either the narrative of guilt or of innocence in this trial. I’ll cover Sergeant Edwards’ testimony only briefly.
The second of these was MPD Homicide Lieutenant Richard Zimmerman, whose testimony was more interesting, and which we’ll cover in greater detail, below.
State’s Witness: MPD Sergeant John Edwards
You may recall from yesterday’s testimony of (now retired) Sergeant Pleoger that it was Pleoger who was the sergeant in charge of Chauvin, Thau, Lane, and King on the date of Floyd’s arrest. As it became clear that this was a use-of-force event, it was normal for the Sergeant to take on a more hands-on approach to the event, per MPD policy.
Also per MPD policy, however, as it became known that Floyd might die, and certainly was in bad condition, it became clear to everybody that this was likely to turn into what’s called a critical incident.
That’s an MPD term of art for a police use of force that involves the death or serious injury of an officer or suspect.
This is important, because once an MPD use of force becomes identified as a critical incident, the substantive investigation and management of that event is taken from the hands of the Minneapolis Police Department and handed off to the state-level Bureau of Criminal Apprehension (think of the BCA as the state’s FBI).
This is a common, and arguably wise, policy, in that it allows for the investigation of police use of force without the conflict of interest concerns that can arise when a police department is allowed to investigate its own potential misconduct.
It also means, however, that MPD officers are no longer involved with the case, and therefore would have had only a very transient role in investigating the event, only limited knowledge of the evidence of that event, and therefore only a poorly informed opinion about whether the use-of-force involved was justified.
In the case of Sergeant Edwards, his only real involvement in this event was to take over at shift change from Sergeant Pleoger. Edwards engaged in some routine activities on site, such as having officers run crime scene tape to secure the relevant areas of the scene, begin to search out witnesses who might be willing to give statements, and so forth.
Within an hour or two afterwards, however, when it became known that Floyd had died and this was now officially a critical incident, Sergeant Edwards and every other member of MPD involved knew that their substantive role in the case was effectively over. At that point they did the minimum required to be prepared to smoothly hand over the case to BCA.
This was certainly true of Sergeant Edwards, as we learned through his testimony as the state stepped him through his activities that evening of May 25, 2020. All of these activities were largely administrative in nature, and none of Edwards’ testimony added much substantive value to understanding this case.
Really all the evidence about the event of which Edwards was aware consisted of body camera footage shown to him by the prosecution—and I expect the prosecution showed him that limited body of evidence simply so they could ask him about his poorly informed opinions based on that partial evidence. This wasn’t a big deal with respect to Edwards but became a bigger deal when the same approach was taken with the next witness, Lt. Zimmerman.
Indeed, so limited was the utility of Edwards’ testimony that the defense did not even bother subjecting him to cross-examination, so all the testimony we have from Edwards was based on direct questioning by the state (Prosecutor Schleiter conducted direct), and you can watch the video of that below.
Edwards Direct Questioning
State’s Witness: MPD Homicide Lieutenant Richard Zimmerman
The second and last state’s witness of the day was MPD Homicide Lieutenant Richard Zimmerman. It is notable that he is apparently the most senior of MPD’s homicide detectives.
Direct questioning of Zimmerman was conducted by Prosecutor Frank, taking over from Schleiter, and that raises an interesting and noteworthy point.
Today one of the television commentators chattering away while the court was recessed mentioned that the state had some 15 or so attorneys admitted on the case by Judge Cahill. I’d thought the number was more like 10 or 12, but regardless, the point remains the same.
There is only one defense attorney, Eric Nelson. The woman sitting behind him is technically an attorney, in that she’s passed the bar, but I believe she did so about a week ago, or some similarly short time. She’s not really a lawyer on the legal team in any substantive sense. And that appears to be it for Nelson’s “team.”
Those of you who followed my George Zimmerman coverage (presumably no relation) will recall that George always had two lawyers in court with him, Mark O’Mara and Don West, and those two did a masterful job of switching out so as to achieve a best fit in questioning different witnesses. (The prosecution, in contrast had some four or five or six attorneys actively on the case.). Largely unseen, however, was a substantial support staff backing up O’Mara and West—one of the factors that led to that legal defense billing out at around $1.7 million.
Nelson has himself, a newly barred assistant, and that’s it. The situation is rather like a wrestling match in which one competitor fights alone against 10-15 opponents who can tag each other in and out as they like.
On a more practical level, it means, for example, that each prosecutor need have command of every detail of only the subset of witnesses that they intend to personally question—whereas, in contrast, Eric Nelson must have command of every detail of every single witness.
It also means that if any single prosecutor feels, perhaps, that they might be a bit off that day, they can “tag in” a colleague. Eric Nelson can “tag in” nobody.
This stuff matters, folks, especially in an extraordinarily long trial such as this one. It’s worth noting that most murder trials—by which I mean intentional murder, not the unintentional killing that Minnesota strangely insists on labelling murder—last only a day or two or three. Criminal trials of three and four weeks just don’t happen in the normal course of events, but only in the most exceptional cases—often highly politically charged cases, such as this one.
I wrote in a recent blog post how impressed I’ve been by Nelson’s performance in the trial proper, and that’s true. Whether he can maintain that level of performance for two, three, or four weeks, is another question entirely. I certainly hope he can.
OK, sorry for that diversion, let’s get back to Lt. Zimmerman.
Perhaps the best way to describe Lt. Zimmerman is “well-seasoned.” He joined the MPD back in 1985, after a few years as a Sheriff’s deputy, back in the days when cops carried a gun, handcuffs, and that was about it. Often, back then, from my own recollection, not even radios—indeed, often not even every squad car had a radio.
Frank had a very specific role in mind for Zimmerman, and it had little to do with the substantive factors of this case. And there’s good reason it had little to do with the substantive factors of this case—because Zimmerman knows virtually none of the relevant evidence of the case.
Much as with Sergeant Edwards, Zimmerman was almost immediately aware that this was going to be a critical incident and promptly handed over to BCA—indeed, as it was in fact handed over within two or three hours of Zimmerman’s involvement.
Zimmerman’s role, then, was largely as a transient caretaker of the case, to ensure the uniformed officers were doing the things they were supposed to be doing to secure evidence, run crime scene tape, canvass for witnesses, and so forth.
But everybody involved, including Zimmerman, was aware that by the time they went to bed that evening this would be a case entirely in the hands of BCA, with effectively zero involvement by MPD.
So, if Frank would not be able to make use of Zimmerman to testify substantively about the case, for what purpose could he use Zimmerman? As a purported expert on MPD use-of-force policies able to provide an authoritative determination that Chauvin’s use of force upon Floyd was unjustifiable.
Before getting to that, of course, Frank stepped Zimmerman through his administrative role on the case, as a transient caretaker, much as Prosecutor Schlieter had done earlier with Sergeant Edwards.
Then we got to the real point of having Zimmerman testify.
Frank asked Zimmerman if he’d been trained by MPD on use of force, if he was familiar with MPD use of force policies, and (importantly) if he’d viewed the body cam footage of the Floyd event.
The body cam footage is important here, because unless Zimmerman had viewed at least that limited body of evidence he’d have zero basis on which to have a use-of-force opinion.
Accordingly, the prosecution had fed him the limited body of evidence consisting of body camera footage specifically so they could ask for his use of force opinion in court, and have that opinion based on more than zero knowledge of the evidence.
And Zimmerman was happy to comply, providing Frank with every answer the prosecutor could hope for.
The placement of a knee on the neck, Zimmerman said, qualified as deadly force, because “it could kill someone.”
Unmentioned here by either prosecution or defense (although I expect the defense will come back to this point from a more advantageous position than cross on a state’s witness) is that the MPD training policies and manual in effect on May 25, 2020 explicitly allowed for—and, indeed, provided photograph illustrations of—knee on the neck use of force as appropriate non-deadly restraint of a suspect. (The city of Minneapolis did pass a law in July 2020, banning just about anything resembling a “choke hold,” but that was obviously new policy adopted after the Floyd event.)
Asked by Frank if a suspect who was handcuffed could still represent a threat to the officer, Zimmerman answered definitely in the negative.
This is, of course, utter nonsense. The reason Thau was looking for a hobble device in the squad car to further restrain Floyd (ultimately the hobble was never used) was because Floyd had kicked at the officers trying to restrain him on the ground—clearly a handcuffed suspect can still be a physical danger to officers.
Indeed, I am personally aware of several instances in which handcuffed suspects have shot and killed officers.
Further, the duty of the officer in restraining a suspect is not merely to protect the officer from the suspect, but also to protect the public from the suspect, and even to protect the suspect from the suspect—this last is a genuine factor when dealing with a violently non-compliant, apparently intoxicated, very large and powerful suspect while on one of the busiest intersections in the city, as here.
Frank also asked Zimmerman about the dangers of the prone position for a handcuffed suspect, driving the prosecution narrative that positional asphyxia had killed Floyd, and Zimmerman was happy to talk about how he’d been trained for decades about the dangers of positional asphyxia and the importance of bringing a handcuffed suspect to a seated or recovery position as soon as possible.
Frank asked Zimmerman about the duty of police to provide care to a suspect in need, even if the officers had already called for an ambulance, and Zimmerman affirmed that the officers had such a duty while waiting for the ambulance to arrive.
About this point the defense objected to the line of questioning—likely on the grounds that Zimmerman was speaking in an entirely hypothetical sense without any grounding or foundation in the actual facts of this actual event. This led to a rather lengthy sidebar during which the court recessed for its morning break.
When the court returned, it was clear that Frank had been instructed by Cahill to tie the questioning to the case. It was at this point that Frank asked Zimmerman about his reviewing of the body camera evidence.
With this foundation established, Frank then asked Zimmerman the very narrow question of whether, based solely on that body camera footage and based on Zimmerman’s training and experience, did Zimmerman believe Chauvin’s use of force was unnecessary?
Zimmerman’s response: Totally unnecessary.
And that pretty much concluded direct.
The defect in this line of questioning, from a substantive perspective, is obvious—the officers on scene in general, and Chauvin in particular, were not making their use-of-force decisions based on body camera footage, they were making their use-of-force decisions based on the totality of the circumstances.
Indeed, the body cameras do not even capture what the officers merely saw, because a turn of the head without a turn of the body means the officer is viewing events not captured by the camera.
The body camera obviously doesn’t at all capture non-visible evidence, such as muscular resistance by a suspect, the perception of traffic moving up and down the street only feet away, the knowledge that EMS is en route on a code 3 with lights and sirens, and more.
It’s as if there were 20 possible sources of information driving the use-of-force decision making of the officers on scene, and Zimmerman was asked to give his use-of-force assessment based only one of those sources.
If that’s all the substantive information Zimmerman has, then he’s simply ill-informed, and if he’s ill-informed then his opinion is equally ill-informed.
To his credit, Nelson did an excellent job clarifying this reality, getting Zimmerman to agree to a long list of factors, other than what might be captured on a body camera, as important in making use-of-force decisions.
Nelson also noted that Zimmerman himself could hardly be characterized as anything like a use-of-force expert, with Zimmerman agreeing that as a long-time homicide detective he would only very rarely be involved in the use of violent force on a suspect, and that indeed his primary exposure to use of force events consisted almost entirely of his mandatory annual training—at which he, Zimmerman, was a student, not a trainer.
There are, of course, limits to what defense counsel can do on cross-examination—specifically, defense counsel is not permitted to argue with a witness (despite what you see on television), nor can defense counsel himself testify (again, despite what you see on television).
These limitations were illustrated when Nelson asked Zimmerman if there was any provision under MPD policy in which a knee on neck would be allowed, other than as a purely opportunistic defense technique, and Zimmerman replied that there was not.
Well, having looked at the actual MPD policy and training manual, I can state with certainty that knee on neck is explicitly permitted (or was, at the time of the Floyd event), and even demonstrated photographically.
Now, Nelson could have pulled out that policy, and shoved it in Zimmerman’s face to impeach him on the stand, but today was not the best day to bring that particular club to bear, and especially not to an older gentleman like Zimmerman.
Best, I expect Nelson thought, to save that club for better time when he could bring it to bear from position of strength, rather than on cross-examination—and at time much more proximate to jury deliberations.
It’s worth keeping in mind that everything happening in court today will have been three weeks in the past by the time the jury goes into deliberations, and in the intervening three weeks the jury will have seen a mountain of additional evidence—much of it evidence presented by the defense in its case in chief.
For the details of Nelson’s cross of Zimmerman I urge you to simply watch the actual testimony, it’s not very long and it’s worth the watch.
Overall, Zimmerman was subject to direct by Frank, cross by (of course) Nelson, and then a very brief re-direct by Frank, all of which can be watched below:
Zimmerman Direct Questioning
OK, folks, that’s all I have for all of you today. Court is obviously recessed until Monday morning. There’s a possibility I’ll have some backgrounder posts for you this weekend—maybe on the jury instructions likely in this case—but I’ll have to see what my wife might have planned for the weekend, family wise.
Until next time, whenever that might be, stay safe!
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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