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Chauvin Trial Day 5 Wrap-Up: Poorly Informed Witnesses Provide State with Poorly Informed Opinions

Chauvin Trial Day 5 Wrap-Up: Poorly Informed Witnesses Provide State with Poorly Informed Opinions

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 PandoraiHeartSpotifyApple PodcastGoogle Podcastsimple RSS feed, and more.

OVERVIEW

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

Zimmerman Cross-Examination

Zimmerman Re-direct

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!

–Andrew

Attorney Andrew F. Branca

Law of Self Defense LLC

Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years.  Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service.  If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here:  Law of Self Defense Membership Trial.

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

 

 

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Comments

presumably to get an early start on the weekend
Well, it is a particularly important weekend for some. Especially today (and Sunday).

a wrestling match in which one competitor fights alone against 10-15 opponents
So tempted to put in a Princess Bride reference….

    Bill West in reply to GWB. | April 2, 2021 at 10:13 pm

    I wanted to add reference to the battle of wits scene as a comment on drug tolerance.

Branca – please elaborate on strategy of Nelson not challenging Zimmerman on his statement that
A) once handcuffed no longer threat vs the kick and later hobbling
B) Knee on Back/neck always against rules/excess force

    bear in reply to Joe-dallas. | April 2, 2021 at 5:46 pm

    I watched the defense ask those specific questions of Lt. Zimmerman. Zimmerman, hence the prosecution, flunked. Nelson destroyed every
    ‘substantive” point the prosecution tried to make. I agree with The Esteemed Mr. Branco that Nelson effectively countered the narrative that body-camera-only impressions held any wight.

      Joe-dallas in reply to bear. | April 2, 2021 at 6:15 pm

      Again – I am wrong in my original assessment – I just rewatched the cross of zimmerman, & Nelson came across much better in the audio version than the print version of the cross.

      I dont recall if Nelson challenged Zimmerman’s assessment based on his viewing of only the 3-4 minutes of video vs the 20+ minutes of all the other video’s .

        bear in reply to Joe-dallas. | April 2, 2021 at 6:57 pm

        Mr. Joe, when the prosecution rests, not only is Nelson going to hammer the prosecution with the then current MPD policy regarding restraint, (as Mr. Branca pointed out was changed AFTER May 25th, 2020) but Nelson will enter into evidence The FULL body-cam footage as well as Floyd’s prior drug o.d.’s. Zimmerman never was allowed to see the real context of the body-cams, since he was only coached on the stuff the prosecution wanted him to see. After Zimmerman handed the case over to the BCA, he was no longer in any investigative or informational loop. Have a great weekend, my friend!

        Midfiaudiophile in reply to Joe-dallas. | April 3, 2021 at 8:53 am

        I think that I might agree with your original assessment more than your reevaluation. If I were a juror, I’d be looking at Nelson’s cross and thinking “OK, sure, situations evolve and body cameras don’t capture everything…………….. but I’m pretty sure the 40 year police veteran already knew all of that before he opined that the restraint of Mr. Floyd was completely outrageous and posed unacceptable risk to Mr. Floyd’s health.” I’d be annoyed with Nelson for being condescending.

        That said- in voir dire, the prosecution killed off jurors that viewed police testimony favorably, and that might come back to bite them in deliberations when looking back at Zimmerman’s testimony.

          Joe-dallas in reply to Midfiaudiophile. | April 3, 2021 at 6:21 pm

          Mid- glad some one is being more objective

          Timeline as I can best reconstruction
          8;08 police office tapped on door of suv with Floyd inside
          8:09 /8:08 floyd digested 3x fentanyl
          8:18 place in backseat of police car still screaming
          8:19 came out other side of police car
          8:19 on ground outside police car,
          8;19 kicked officer
          8.:20 legs hobbled
          8;20 – code 2 called in
          8:21 – code 3 called in
          8:23 to 8:25 – floyd expired
          8:27 ambulance arrived.

          Based on the 3x fatal ingestion of Fentanyl, Floyd could have been saved with immediate medical at 8;13 to 8;15 – the operative word being could with max of 50% chance.

          At 8:18 there was absolutely zero chance of saving floyd’s life.

          At 8.21 was probably the earliest point in time that anybody could have known that Floyd had OD’d.
          Even at 8:21 , based on floyd’s behavior over the last 3 minutes, its highly doubtful that anyone would have recognized the OD was going to be fatal.
          At 8;21 floyd was still not quite calmed down.
          at 8:25/8:25 Floyd was dead.

          Definitely prior to 8:23, Chauvin used zero excess force.
          From 8.23 to 8.24 – did chauvin use excess force? – maybe ! – the question is whether continuing the body weight control to ensure that floyd truly no longer a threat may be reasonable. Again, based on behavior during the last 3 minutes, was floyd dying or just passing out from exhaustion? Why not wait another 30 seconds to make sure he had either completely relaxed or passed out from exhaustion.
          At 8.26 officer kueng checked pulse – no pulse
          at 8.27 ambulance arrived
          At 8.27 is when Chauvin released the knee from the neck/back.

          “From 8.23 to 8.24 – did chauvin use excess force? – maybe ! – the question is whether continuing the body weight control to ensure that floyd truly no longer a threat may be reasonable. ”

          I would note that Floyd still being a threat is only one justification for the continued use of force. E

          For example, excited delirium patients are restrained per common police policy not merely to protect the police from the patient, but to protect the patient from the patient..

          Joe-dallas in reply to Midfiaudiophile. | April 3, 2021 at 9:41 pm

          Branca – you are actually replying to me.

          At 8.: 19/8:20 Floyd is kicking police officers
          8:20 floyd gets hobbled,
          I would think it is normal for officers to continue to keep fighting suspect pinned to the ground for an extra few minutes to ensure the suspect has calmed down. The question is whether the officers would have expected imminent death. I would not expect imminent death based on his level of physical activity up to the time of being hobbled. I certainly would not have expected imminent death. I would have expected medical problems which the officers also recognized by the code 3 at 8.21. The code 3 enhancement would seem to be a fairly common thing event.

    thetaqjr in reply to Joe-dallas. | April 2, 2021 at 6:18 pm

    Yes, if cuffed people aren’t capable of endangering themselves by further harm, why would the cops even carry hobbles in their backpacks?

TheOldZombie | April 2, 2021 at 5:46 pm

I’ve dealt with plenty of people in handcuffs who still wanted to fight by kicking, biting, spiting, trying to move the cuffs to the front, and trying to run away. And that’s happened to me inside a jail. No doubt police face the same issues on the street.

Obviously I don’t wear a gun inside a jail so I’ve never had a handcuffed inmate go for my gun but they have tried to reach for OC spray, cuffs. or just grab my belt/clothing. I’m sure we could all Google up instances of handcuffed people grabbing officers guns on the streets.

For those who might wonder why an inmate would run inside a jail: they are just acting like fools, they are trying to attack other people, they are trying to get their hands on things to fight with, they are trying to create distance to give them time to move the cuffs to the front which most people can do.

In short the fact that a person is handcuffed doesn’t mean they can’t still be a threat.

    thetaqjr in reply to TheOldZombie. | April 2, 2021 at 6:22 pm

    “people in handcuffs who still wanted to fight by kicking, biting, spiting, trying to move the cuffs to the front “ … to prevent these kinds of actions by George, it seems Officer Chauvin was one knee shy of being safe.

      TheOldZombie in reply to thetaqjr. | April 2, 2021 at 7:19 pm

      Not sure of the point you’re trying to make. I’m simply pointing out that Lieutenant Zimmerman saying a handcuffed person is no longer a threat is simply inaccurate.

    fogflyer in reply to TheOldZombie. | April 2, 2021 at 6:26 pm

    Also, as Nelson pointed out, sometimes you restrain a person to stop them from injuring themselves. Floyd had already smashed his nose/mouth into the partition in the cruiser causing an injury and also given himself some good road rash on his cheek and shoulder from struggling on the ground.

      TheOldZombie in reply to fogflyer. | April 2, 2021 at 7:22 pm

      Yes. I forgot this. People who are trying to hurt themselves, or having medical issues (such as a seizure) causing them to hurt themselves need to be restrained as well.

    OldProf2 in reply to TheOldZombie. | April 3, 2021 at 5:20 pm

    When I was working as a police firearms instructor, I used a demonstration where they would handcuff me and lock me in the back seat of a patrol car. I would move the handcuffs to the front (under my legs), reach over the cage to access the shotgun, and trip the back door open with my little finger. I would rack the shotgun and be waiting in ambush behind the car. The purpose of the demonstration was to get them to keep the gun racks locked, and to keep a close watch on handcuffed subjects.

    gonzotx in reply to TheOldZombie. | April 3, 2021 at 8:01 pm

    A black cop… end of story

pedanticman | April 2, 2021 at 6:39 pm

I just found out this afternoon that Lt. Zimmerman was a signatory to a letter of 14 Minneapolis Police officers condemning Chauvin. It seems important to get that in front of the jury.

I’m curious as to why Nelson didn’t bring it up on cross. Will he be waiting for another opportunity? Or avoiding it altogether?

    Mr. Pedanticman, Nelson is lurking like a gator in a swamp, with a back-up alligator snapping turtle in abeyance.

    TheOldZombie in reply to pedanticman. | April 2, 2021 at 7:35 pm

    Mr. Branca,

    Could Nelson bring this up and show that as an officer Lt. Zimmerman is too biased to be an impartial witness?

    Brave Sir Robbin in reply to pedanticman. | April 2, 2021 at 8:23 pm

    I would say the Lt. Zimmerman manifested his condemnation of Defendant on the stand under direct. I would see no utility or benefit bringing into evidence that 13 other MPD officers are in agreement.

    inquisitivemind in reply to pedanticman. | April 4, 2021 at 3:47 pm

    You can not cross examine a witness on material not introduced by the prosecution. This isn’t TV.
    If he is recalled by the defense, which may not be necessary, after the police restraint manual is presented- his testimony would be useless

Conservative Beaner | April 2, 2021 at 7:06 pm

I recognize LT Zimmerman from episodes of The First 48.

I had no idea the medical examiner had ‘updated’ his autopsy report which mentioned cause “cardiopulmonary arrest complicating law enforcement subdual, restrain, and neck compression”

His report says “homicide”?

I would say that’s a slam dunk isn’t it? Why did the medical examiner not mention that? What changed?

    The medical examiner’s report was “updated” under political pressure–the original unpressured report would not have allowed for a prosecution.

    Not that it matters, even the “updated” report was released before the toxicology results came in, showing that Floyd had 3-fold fatal levels of fentanyl in his system.

    The purported “family autopsy”by the famous (infamous?) Dr. Michael Baden not only suffers the same timing defect of being issued before the tox was known, but in fact Baden never saw any physiological signs of asphyxia or any cause of death attributable to the officers, he simply inferred that finding from the same bystander video the rest of the world also saw.

    A little bit of knowledge is a dangerous thing.

      Chewbacca in reply to Andrew Branca. | April 3, 2021 at 1:13 am

      We all know that Baden is a for hire mouthpiece who will parrot whatever his employer wants. He has no honor at this point in his career.

    Roguewave1 in reply to Kreemerz. | April 3, 2021 at 7:27 pm

    George Floyd euthanized himself by first stuffing the most dangerous street drug known up his anus to achieve a faster and higher high, then swallowing his stash when the police arrived.

      inquisitivemind in reply to Roguewave1. | April 4, 2021 at 3:51 pm

      I have not seen any reports of rectal insertion? Could you expound upon these claims- otherwise remove this comment.

Police are really gonna hang on this one. Sadly. Autopsy report alone seems like it will seal the fate of the cops there and cops everywhere.

During Frank’s opening statement, he indicated hundreds of witnesses. Is he going to use up all of the witnesses or wrap up next week? He and his team have not proved anything beyond reasonable doubt. I feel that the only facts will come from Nelson’s witnesses and documents.

Overusing the crying witnesses could throw off many jury members, right? If I was in the jury panel, I would be wondering…where are the facts?

amatuerwrangler | April 2, 2021 at 8:54 pm

Some of us don’t need Google to recall such events.

Actually, re the Lts tenure, 1985 was not too primitive, compared to 1970. I recall early in my career the department only issuing portable radios to solo cars. The idea was that while one officer fought with the suspect, the other could run to car to summon aid…. Of course, not all the radios worked all the time.

Aside from the crying threatrics I think there’s another chink in the prosecutions armor; the tag team.

I’m curious on court room experts thoughts (ie Branca) on it.

Throughout the trial, the jury will develop an affinity for one or the other. You either like or dislike the attorney. Regardless of guilt, a juror is going to get sick on non-substance. You either give them the Perry Mason moment because they are taking 3-4 weeks out of their life, risking their privacy for years to come, and a man’s life hangs in the balance. You better not be dragging us through this because you have bunch camera hungry criers. Each prosecutor can swing for the fences- but like a movie with too many plots- not one of these people is the prosecutor… it’s a giant faceless machine and many of the faceless faces are going to become tiresome.

Nelson is a consistent face. He consistently shoots down the faceless prosecutors and because of his abundance of face time, his arguments and like-a-bility, Nelson’s stock is apt to be higher than the many faced/faceless machine. At the end of the day so much comes down to who they like… much as that’s not supposed to be the case. Bring enough criers to the stand and you’re a talentless bore. I don’t care how much charge per hour… you got bubkus.

I’m sure smarter than me have analyzed this to the hilt and I’m sure Nelson is widely aware.

Though I like the Atticus Finch vs the lynch mob meme- I suspect Nelson prefers this fight vs the tag team.

    I’m not a psychologist or anthropologist, so no expertise here.

    I will note that Nelson’s social status and background is almost certainly vastly closer to that of the jurors than is that of any of the prosecutors, with the possible exception of Eldridge (apparently the only actual state prosecutor on the state prosecutor’s team).

    That can’t hurt him.

    amwick in reply to Andy. | April 3, 2021 at 7:12 am

    TY Andy..

    I knew there was a disparity on the size of the two legal teams, but I didn’t realize it was 15 to 1.
    You made a point, seems to be a great point, that it may benefit the defense. I hope so.. But I really don’t see how it is fair. I tried to look up the definition of a fair trial, for some clarification, and I guess the size of legal teams don’t count.

    BTW Another great write up Mr. Branca, it’s like your just chatting over coffee… (or Jameson)

    Christopher B in reply to Andy. | April 3, 2021 at 10:26 am

    The biggest problem I see for the prosecution is all the ‘yes buts’ they have to work around in their narrative. It’s fairly easy to see a different set of facts that would fit a fairly clear conviction on at least manslaughter charges. Imagine if George Floyd had been wrongly accused of shoplifting, been roughed up by the cops, and then died of asphyxia with a clean tox screen.

    Now look at what’s fairly well known and uncontested.

    He passed a bad bill, and neither left the location or made good on it.
    He resisted, and started complaining about breathing trouble long before he was restrained on the ground.
    The officers were cognizant of his difficulties, and didn’t delay in summoning medical help (that it arrived too late in part because of the unruly crowd isn’t their fault).
    He ingested a significant quantity of illegal drugs, apparently shortly before the police arrived.
    His injuries are not consistent with death by strangulation or lack of blood flow to the brain.

    This almost flips the relative positions of the prosecution and defense, as Andrew has noted about many of the prosecution witnesses so far. The prosecution has to present a complicated narrative to explain why the above facts don’t matter to determining who was responsible for Floyd’s death while the defense has what appears to be a much simpler and more direct narrative that the police did what they were trained to do, in the way that they were trained to do it, in a situation that distressingly familiar to both them and to Mr. Floyd. It’s the prosecution that keeps raising things that might be cause a jury to think ‘reasonable doubt’.

healthguyfsu | April 2, 2021 at 9:29 pm

Could the prosecution’s strategy be to stuff the witness list for two reasons that have zero legal merit but have merits on the human aspect of a trial?

-The 12 to 1 imbalance means that calling a whole bunch of witnesses leads to piling on the fatigue factor for the defense team while the prosecution is unaffected.

-By delaying the defense’s case, some jurors may grow weary and annoyed with their opinions completely formed and ready to wrap this up before the defense even gets started.

Also, I think some on this board are projecting their own vitriol with the prosecution’s underhanded tactics onto the jury. Two problems with that:

-The jury may not see this commentary or even start with the same baseline as you

-Andrew keeps point out how far away this info is from deliberation BUT….this info is also their first impression. They may also decide to resent the defense if they start to see the defense as the final piece holding them up from this being over.

    DaveGinOly in reply to healthguyfsu. | April 3, 2021 at 8:22 pm

    I’ve been called to jury duty four or five times, but have only served once. The trial lasted two or three days, and it was just a drug/drug paraphernalia possession case against a female defendant. I was expecting my fellow jurors to be less than interested in the case and thought they’d want to immediately convict her so they could go home. I was thoroughly gratified to find that they paid attention to details, absorbed the presentations of both the prosecution and the defense, listened carefully to the judge, and were able to bring critical thinking skills to bear in their analysis of the case.

    This was not a high-stakes trial with media attention and, other than a sense of duty, there was no reason to make an attempt to “get it right”. But how hard they worked to do exactly that was quite surprising to me. I didn’t think my fellow citizens had it in them. But they do.

    Due to my experience, I’m fairly certain that his jury is very concerned with “getting it right” because of the stakes. Indeed, they know if they deliver a “not guilty” verdict that cities will burn. They will want to make sure it’s the right decision, if that’s what it comes to. I trust that they are paying attention, and that they will do their duty to the best of their abilities.

Are we done with the crying and ready to start dealing with facts now?

I am puzzled about something. Has the BCA completed its critical incident investigation? Is there a report?

Zimmerman testified that he didn’t see Floyd kicking the officers, even though it’s clearly on the bodycams. This is the “most senior investigator”. What a joke.

    Flatworm in reply to BillyHW. | April 3, 2021 at 6:59 am

    Well, he also testified he was never taught about the knee on the back or neck as a legitimate restraint technique, despite it being in the MPD manual with photographic illustration.

    Clearly he’s somewhat selective about what he sees.

    Char Char Binks in reply to BillyHW. | April 4, 2021 at 5:02 pm

    He knows how to lie just enough to to avoid a perjury charge.

As an ex beat cop, I have to say that if Zimmerman was my patrol sergeant, I would immediately put in for a transfer after hearing this testimony.

    Chewbacca in reply to NavyMustang. | April 3, 2021 at 1:22 am

    He’s a senior detective and hasn’t been on the road in I would guess probably 25 years. His opinions of use of force are meaningless and I’m sure the patrol officers have zero respect for the guy. I’m willing to bet he’s one of those officers that spent as little time on patrol as he possibly could and looks down on the cops on the street.

I don’t understand why Nelson did not confront Zimmerman with the training manual that shows the use of the neck restraint AFTER handcuffs are in place. The training procedure for dealing with suspects exhibiting excited delirium starts off “now that the handcuffs are on what next” and then proceeds to explain the use of the neck restraint “to PREVENT” positional asphyxia” Everything that Chauvin did was by the book. I know that the Defense will have other opportunities to introduce that training manual but I don’t understand why Nelson would have passed up a chance to totally destroy the credibility of Zimmerman who is either unfamiliar with the policies of his own department or who lied on the stand in an effort to put a former colleague behind bars. If Chauvin is convicted he faces the death penalty. As we know the prison population is predominantly black – in that environment Chauvin doesn’t stand a chance.

    Flatworm in reply to Keith_. | April 3, 2021 at 7:03 am

    I don’t think he can, it’s not the sort of thing counsel is allowed to do on cross-examination. He can’t argue with the witness, he can’t offer new evidence, he has to stick with asking questions and listening to the answers.

    The Packetman in reply to Keith_. | April 3, 2021 at 8:01 am

    Mr Branca pointed out in an earlier post that if direct examination explores A, B, and C cross-examination can only ask about A, B, or C; defense can’t ask about D. Expect Nelson to bring all this up and more when it’s the defense’ turn.

    And I ask, can Nelson re-call prosecution witnesses as part of the defense?

      Joe-dallas in reply to The Packetman. | April 3, 2021 at 10:45 am

      “Mr Branca pointed out in an earlier post that if direct examination explores A, B, and C cross-examination can only ask about A, B, or C; defense can’t ask about D. Expect Nelson to bring all this up and more when it’s the defense’ turn.

      And I ask, can Nelson re-call prosecution witnesses as part of the defense?”

      Branca – Can you elaborate win Packetman’s comment – My understanding is that packetman’s statement is correct regarding “re-direct and re-cross”
      Not sure its correct for first cross (though I make that comment with the caveat that I am not an attorney)
      Also comment as to strategy of Defense for the amount Nelson challenges witness

      Note I am not disagreeing with packetman’s / Flatmworn’s or keiths statement – just seeking more elaboration – thanks

        Keith_ in reply to Joe-dallas. | April 4, 2021 at 4:20 am

        This is a good question Joe. If Nelson was constrained by procedural rules for cross-examination can he call Zimmerman as a defense (hostile) witness and confront him with the MPD instruction manual which calls for the use of neck restraints AFTER the handcuffs are on to PREVENT positional asphyxia? I am not a lawyer but would be interested what Mr Branca (or other lawyers) have to say about this.

          Keith_ in reply to Keith_. | April 4, 2021 at 4:42 am

          Reading below I see Mr Branca has already answered my question about if Nelson can call Zimmerman as a witness …..”Nelson can call them. Whether they show up to testify is another matter entirely.”

          Since it is unlikely that Zimmerman would agree to show up as a defense witness it looks like Nelson lost his chance to confront Zimmerman over glaring inconsistencies in his testimony. I still don’t understand why on cross Nelson couldn’t have said to Zimmerman “you testified that after the hand-cuffs were on there was no need to restrain Floyd…You also testified that you receive annual training in the use of force…. Are you familiar with MPD training manual (cite number) that instructs officers to use the neck restraint AFTER the cuffs are on to prevent positional asphyxia”?

          At this point why couldn’t Nelson approach Zimmerman with a copy of the MPD procedure and ask him to read out word-for-word the mandated procedures which totally contradict Zimmerman’s testimony? Unless there is some procedural reason why Nelson could not confront Zimmerman on cross in this manner it seems to me a huge opportunity was lost. Again I’m not a lawyer but would be happy if a lawyer could enlighten me.

So so far I have seen zero proofs which create a nexus between knee to neck and GF death. If standard is still beyond a reasonable doubt, State better get their shi& together and provide a medical expert. Side note, defense counsel needs to object to these witnesses making medical opinions.

    DaveGinOly in reply to Joeybags4. | April 3, 2021 at 8:13 pm

    I’m curious to see which side calls the training officer as a witness to testify as to the state and content of training at the time of the incident. There must also be a record in Chauvin’s personnel file that indicates the time and date of every training he has ever received. The training officer can go into detail about what was taught to Chauvin and when. Somewhere in there Chauvin was taught the knee-on-neck restraint. Having the training officer talk about the technique being taught to Chauvin will be a lot more impactful than just pointing out that it was in the training manual.

      luckydog in reply to DaveGinOly. | April 4, 2021 at 5:48 pm

      Watching this testimony about restraint training made me wonder if it is like my training.

      I am in a different profession; however,, everyone must take a set of “core” training – 8 dif courses/ subjects – and pass the training. Plus, there are annual training requirements for each of the 8 dif courses/ subjects.

      However, there is a big difference between the initial training and the annual refresher training.
      • The initial training is more extensive, in-depth, and hands-on.

      • The annual refresher training is done on-line, and provides an opportunity to explore greater detail – but does not require that the detail be reviewed.

      • The annual refresher training is not as comprehensive for all roles – due to how likely will use.

      • All annual refresher training participants must pass a test.

      • The annual refresher training permits the participant to go directly to the test – “test out” – and not have to review the material again

      My hunch is there is a different level of ongoing training for those “on patrol” – more likely to use – versus those “not on patrol”. And that someone like DC would be better informed about both techniques and permissibility. I want to hear from someone “on patrol”.

The Packetman | April 3, 2021 at 8:19 am

Mr Branca pointed out in an earlier post that if direct examination explores A, B, and C cross-examination can only ask about A, B, or C; defense can’t ask about D. Expect Nelson to bring all this up and more when it’s the defense’ turn.

And I ask, can Nelson re-call prosecution witnesses as part of the defense?

The medical debate in the #ChauvinTrial partially revolves around this:

“Overwhelming scientific evidence has found that restraining an arrestee in the prone position does not create an exceptional risk of serious injury or death.”

https://www.forcescience.org/2019/01/new-study-more-evidence-against-the-myth-of-restraint-asphyxia/

My understanding is that the drugs Floyd ingested were a combo of meth and fentynal, not just fentynal. The effect of the meth would make him hyper as I understand it.

Also, all the video I’ve seen of the incident shows Chauvin’s knee on Floyd’s upper back right below the neck and not on the neck. I miss something?

    Joeybags4 in reply to NotALawyer. | April 3, 2021 at 3:07 pm

    A) medic was able to easily check caratid artery while DC knee was on the neck; B) ME says GF did not die from asphyxiation. C) ME says GF heart gave out from overdose. Thus, IMHO, there is no nexus bw knee and death thus not guilty. My concern is Nelson has allowed alot of uncontested statements from witnesses like “DC killed GF” and “DC cut off caratid artery” and “DC cut off airway”. He needs to object to this medical opinions by non medical witnesses.

Johnny Weissmuller | April 3, 2021 at 2:30 pm

Another sign that things aren’t going well for the prosecution, YouTube has put the brakes on their opening statement as “mature content.”

https://youtu.be/bba1PpaSZUM

Let me comment on some of the questions and comments made previously.

Let’s start with police procedures. Police procedures are constantly in flux. Procedures chge based upon evidence that such changes are beneficial to the department and mission. At others. it is the the result of trends in popular fads, within the profession, or the result of civil litigation against LEAs. And restraint techniques in thee most likely policies to change.

Restraint techniques , generally used against non-compliant, potentially dangerous subject resisting arrest, Have to be balanced to control the subject, while not inflicting needless injury to that person. With this in mind, using the shin too restrain a person’s neck can do unnecessary damage, if improperly applied. Is it potentially lethal, if misapplied. But, it has not been shown to produce serious damage or death in the years it has been used. And, no evidence exists that it caused any damage to Floyd at all, in this instance. The fact that it was codified into the restraint policy of the MPD gives it credibility.

Also, due to the changing nature of use of force policies, older officers tend to become confused as to what the flavor of the month, in use of force techniques, is. Add that to having an assignment which does not expose an office to routine use of force, some policy changes are not retained well.

Now, as Mr. Branca points out, timing, as in any fight, physical or legal, is very important. This will be a long battle and unlike a prize fight where a single blow can result in a knockout, a court trial has to go the distance. In the case of the use of a shin to neck physical restraint, that can be entered later, with supporting documentation. And, it will be entered closer to the jury deliberating and will be fresher in their minds.

Sometimes it is better hold your cards and allow the prosecution to build your case for you, as happened in the Zimmerman case.

As noted when this case was filed, the state has NO case. All the medical evidence point to the fact that Floyd did not die as a result direct action by the police, such a suffocation, strangulation or restricted blood flow to the brain. This is an immense hurdle to overcome for a conviction. Then there is no evidence that the officers failed to act to preserve Floyd’s life. There was no evidence, presented to date, that Floyd was not not breathing or was without pulse, prior to the arrival of paramedics. Unless there is no pulse, compressions are counter indicated. Rescue breaths can be administered if a pulse is present but breathing is suspended. But, the custodian has to be aware that these conditions exists. This goes to training and experience. So, another big hurdle.

We’ll have to see how this all plays out. But in an honest, working legal justice system, the defense has always had a staggering advantage in this case.

    FOAF in reply to Mac45. | April 3, 2021 at 6:12 pm

    “In an honest, working legal system”

    Therein lies the rub.

    luckydog in reply to Mac45. | April 4, 2021 at 5:45 pm

    Watching this testimony about restraint training made me wonder if it is like my training.

    I am in a different profession; however,, everyone must take a set of “core” training – 8 dif courses/ subjects – and pass the training. Plus, there are annual training requirements for each of the 8 dif courses/ subjects.

    However, there is a big difference between the initial training and the annual refresher training.
    • The initial training is more extensive, in-depth, and hands-on.

    • The annual refresher training is done on-line, and provides an opportunity to explore greater detail – but does not require that the detail be reviewed.
    • The annual refresher training is not as comprehensive for all roles – due to how likely will use.

    • All annual refresher training participants must pass a test.
    • The annual refresher training permits the participant to go directly to the test – “test out” – and not have to review the material again.

    My hunch is there is a different level of ongoing training for those “on patrol” – more likely to use – versus those “not on patrol”. And that someone like DC would be better informed about both techniques and permissibility. I want to hear from someone “on patrol”.

    I’d also like to know:
    1.0) Is periodic refresher training classroom based or online?

    2.0) Does the training require the participant to take a test on restraint specifically – and achieve a minimum test score to pass the training?

    3.0) Does the periodic refresher training require the participant to take a test on restraint specifically – and achieve a minimum test score to pass the training?

    3.1) If yes, does the periodic refresher training allow the participant to go directly to the test – “test out” – and not have to review the material again?

    4.0) Have the MPD ever been required to experience to the restraint technique themselves?

    4.1) If yes, only during initial training ?

If Defense shows there is no nexus between knee and death should be a win. A) medic was able to easily check caratid artery while DC knee was on the neck; B) ME says GF did not die from asphyxiation. C) ME says GF heart gave out from overdose. Thus, IMHO, there is no nexus bw knee and death thus not guilty. My concern is Nelson has allowed alot of uncontested statements from witnesses like “DC killed GF” and “DC cut off caratid artery” and “DC cut off airway”. He needs to object to this medical opinions by non medical witnesses.

    Joe-dallas in reply to Joeybags4. | April 4, 2021 at 1:53 pm

    Joey – comment – “My concern is Nelson has allowed alot of uncontested statements from witnesses like “DC killed GF” and “DC cut off caratid artery” and “DC cut off airway”. He needs to object to this medical opinions by non medical witnesses.”

    I definitely recall the statement by one witness that said “DC Killed GF”

    I dont recall which if any said ” cut off caratiod artery” or “cut off airway” let us know which witness made those statements . fwiw, I am not disputing the statement, I simply missed who said it

    thanks
    Joe

      Joeybags4 in reply to Joe-dallas. | April 5, 2021 at 7:45 am

      I was under the distinct impression that UCF guy was allowed to make allusions to knee to neck cutting off carotid and causing brain damage. I alos thought he argued it both ways….airway/carotid. Seem to me FD gal on curb was allowed ample testimony about same. She was shown to be wrong many times over but still allowed alot of latitude on making curbside diagnosis.

Thousands of words.

Just could’ve written “GOD BLESS OUR INFALLIBLE BOYS IN BLUE!!!!” and called it a day.🤡

    FOAF in reply to cgray451. | April 3, 2021 at 6:16 pm

    Only saying there is zero evidence Floyd’s death was caused by police.

    DaveGinOly in reply to cgray451. | April 3, 2021 at 8:27 pm

    We all know they’re fallible. But when they screw up, the prosecution has to prove it. They can’t just say “Cops are fallible and therefore the defendant is guilty.”

    But you knew that, didn’t you?

I am wondering is this definitely a 3+ week trial and why would it be advantageous to save very important pieces of information (like the MPD training manual making it clear it considers knee on neck legitimate use of force not deadly) later? Isn’t the jury forming their perception and ultimately opinion now?

Asking from a perspective of ignorance about the answers.

    f2000 in reply to Danny. | April 3, 2021 at 10:39 pm

    Compact delivery, maybe? Save it all for later and unload for full effect.

    Joeybags4 in reply to Danny. | April 4, 2021 at 7:46 am

    I agree. I like Nelson overall, he’s competent and measured. Having said that, I think he’s missed many opportunities. He’s allowed street morons to spout medical opinions without objection. He allowed this LT to testify like an academy expert when he hasnt been there since 1978. His turn better be scorched earth bc he’s left some lies unblemished.

just got ANOTHER 7-day suspension by the chikkkoms at facebook–this time for linking to legalinsurrection.com. my 1st 2 suspensions were for linking to OIG reports! this org has WAAAY too much power!

LI is a daily read for me – especially when a high profile court case is being followed by someone like AB.

Normally PowerLine can be a good source for high profile court cases in Minneapolis. Not this time. And I can’t help but notice the number of postings pointing folks to LI & AB – yet not one posting on LI pointing folks to PL (from what I recall).

The PL folks may think that we can not tell the difference in their reporting between ‘before Trump’ and ‘after Trump’.

    I love Powerline, but when it comes to coverage of this case, it’s all Andrew all day long. That’s not to downplay PL’s coverage, such as it is, but even if I weren’t with LI, Andrew would be my go-to guy on this case (and all self-defense issues/cases), with PL a solid second source.

    But I do think you make a good point about the old-school conservative blogosphere more often linking other right sites. We kind of got away from that when most of the big ones went corporate and the individual right blogs just faded away. Something to keep in mind going forward, but it’s not really relevant to Andrew’s coverage of the Chauvin trial. He’s the authority and is not taking his cues from anyone else. That’s one of the reasons his coverage is so must-read, no? 😉

      Just for the record, except for incidental exposure I generally don’t read what others are writing about any case I’m covering, at least if I’m able to watch the proceedings myself.

      I mean, what would be the point? I’m watching the proceedings myself.

      Also, frankly, it takes me 12-15 hours a day already just to watch every minute of the proceedings and write up my own analysis. I don’t have TIME to watch what other people are doing.

      What I try to provide folks, always, is my personal legal analysis of what I see, every day, to the best of my ability.

      Someone else’s opinion of the same thing I’m watching isn’t going to influence or inform my opinion–and that’s true whether their opinion is world-class and well-informed, or the usual “journalism” blather.

      (P.S. Except for Dershowitz. If he writes something about a case I’m covering, I read it. Every. Single. Time.)

        Precisely. We read you to hear your professional, informed, insightful, legal opinion not to hear what you read somewhere else. That was the exact point I was trying (perhaps ineptly) to make. 🙂

        Joeybags4 in reply to Andrew Branca. | April 5, 2021 at 7:51 am

        Excellent coverage. I have learned alot. One of the most interesting nuggest was these are private attorneys hired by State? Is that right? Seems like a BFD. Poor Nelson all alone. Why no 2nd chair? Is Police Union paying or DC out of pocket?

Retired in Chicago | April 4, 2021 at 6:55 pm

don’t fight with cops, don’t resist arrest.don’t commit crimes and don’t do drugs. keep steady on a job and chances are you’ll be okay.😀

    The common denominator for all lawful police shootings of suspects is non-compliance, attempting to resist, fighting with officers. This holds whether the suspect is white, black, or whatever. Interestingly, police fatally shoot more white suspects than black ones (not that you’d ever hear that from the Democrat activist media propaganda team).

    One thing that we so often seen in police shootings and fatalities within police custody is non-compliance. Who doesn’t do exactly what an officer directs you (lawfully) to do? Entitled people who think they are above the law and those who (rightly) judge that LEO’s in many jurisdictions will be hesitant to use deadly force against minorities even when merited legally, Even when the result of such restraint is the death of the officer at the hand of the person he’s deemed too politically untouchable to contain.

    This mindset is not an accident. Police in Democrat-run urban areas are being “trained” by chilling lawsuits, bad policy, anti-police sentiment, and leftist chaos (defund the police, APAB) to ignore their duties, to let criminals run rampant, and especially to let “black and brown” suspects flee unimpeded that they might commit further crimes.

    Oddly, these municipalities vote for this lawlessness. Let them enjoy the fruits of their anti-police vote.

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