Chauvin Trial Day 7 Wrap-Up: a horrible day for the prosecution
Prosecution visibly shaken after cross-examination of MPD force & medical experts
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.
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Overview: “911? I’d like to report a murder.”
Today was a terrible, horrible no good, very bad day for the prosecution, to a degree that I haven’t seen since the trial of George Zimmerman.
If you have no more than an hour to watch the video of today’s proceedings, then I urge you to spend 44 minutes watching the cross-examination of state witness Johnny Mercil, the state’s use-of-force training expert, and 22 minutes watching the cross-examination of Nicole MacKenzie, the state’s medical care training expert. In both instances the result can only be called a train wreck of a disaster for the prosecution.
Indeed, after the judge dismissed Mercil from the witness stand, Prosecutor Schleiter appeared visibly shaken and angry—and he ought to have, given the mauling his case just received. At one point Mercil testified the he himself had personally kept a suspect physically restrained until EMS had arrived on scene, behavior which the state has been arguing for over a week was misconduct on the part of Chauvin.
Even worse, not only did the cross-examination of MacKenzie by the defense also go badly for the prosecution, it went so badly that Nelson informed the court that he intended to re-call MacKenzie as a defense witness when he presented his case in chief.
There were two other witnesses today, neither of which went particularly badly for the state, although in the case of one of them I expect it was only because the prosecution was saved by the bell when the court recessed early in the day—that doesn’t save the prosecution, that witness will be back tomorrow, and I anticipate that the defense is going to have a field day with him on cross-examination, as well.
Morries Hall 5th Amendment Argument
But first some housekeeping. Before the jury was brought into the courtroom we heard some discussion about the complication of Morries Hall, the reported drug dealer in the Floyd’s Mercedes SUV, announcing he was going to plead the 5th if called to testify in the Chauvin trial.
Hall has a real problem. If he provided Floyd with the drugs that likely were actual cause of death, under Minnesota law Hall is looking at 3rd degree murder. Naturally, he doesn’t want to testify in the Chauvin trial only to have that testimony used against him in his own trial.
There’s no doubt that Judge Cahill will respect Hall’s right to assert the 5th. The only question is whether there might be some areas of questioning in which Hall could participate that do not incriminate him.
This seems to me unlikely, and of course Hall’s own attorney doesn’t want him to be compelled to say a word about anything, but Judge Cahill has asked the defense and state to write down the questions they’d like to ask Hall, and Cahill will decide if any of them will be allowed.
Incidentally, it’s worth noting that Hall “appeared in court” via video, and his background looked like jail to me—cinderblock walls, visitor notification signs, etc.
In any case, that’s where things sit with Mr. Hall.
State’s Witness: MPD Sergeant Ker Yang, Crisis Intervention Training Coordinator
I’m not going to spend much time here on Sergeant Yang, both because his testimony wasn’t very interesting, and because I want to get right to the juicy cross-examination of Mercil, and MacKenzie. I’ll only note that Yang’s testimony, focused on crisis intervention policies of MPD, did little to advance any narrative of guilt for the state, especially after the defense on cross of Yang was able to get him to concede that all these policies were contingent on practicability and safety of the scene.
In the interests of thoroughness, however, here’s Yang’s direct, cross, and brief re-direct testimony.
Yang Direct Questioning
Yang Cross-Examination
Yang Re-Direct
State’s Witness: MPD Lieutenant Johnny Mercil, Use-of-Force Trainer
OK, with Yang out of the way, let’s jump into the first explosive state’s witness of the day, MPD Lieutenant Johnny Mercil, presented as the state’s expert on MPD use-of-force policy and training.
Interestingly, Mercil testified at the start that he was currently on medical leave. A prior state witness police officer, Sergeant Evans, I believe, who took over the Floyd scene from Sergeant Ploeger, had also testified he was on leave. Maybe just a coincidence.
In any case, when not on medical leave Lt. Mercil works in the MPD training division in charge of use-of-force training and policy instruction. He was active in that capacity during the period preceding the Floyd events during which Chauvin would have received his department use-of-force training and policy instruction, which is what makes Mercil’s testimony relevant.
Mercil is also a genuine fan of Brazilian Jiu-Jitsu (BJJ), saying (as many practitioners do, in my experience) that he had “fallen in love with the sport.” This was elicited on direct, led by Prosecutor Schleiter, no doubt to buttress Mercil’s credibility, as was the direct testimony of Mercil about his expertise in hand-to-hand force techniques as both a trainer and a street cop, and his mastery of MPD use-of-force policies. Little did Schleiter know how Mercil’s credibility would shortly boomerang on the prosecution.
Schleiter did his usual routine, where he portrayed use of force options as being cast in absolute and binary terms. If A, then B, if X then Y. Any variance of this was either out of MPD policy or at least “untrained by MPD” (an entirely different matter than being outside policy), and hence “wrong-act.”
Schleiter made use of the MPD use of force continuum, and presented it in the most childish and sterile context possible. If at this level of the continuum, officer can do this, but not that, correct. Mercil dutifully answered in the affirmative. But if at that level of the continuum, officer can do that, but not this. Again, yes.
Schleiter would also pose simplified and hypothetical scenarios only minimally representative of what occurred with Floyd and ask if the use of, say, a neck restraint in that hypothetical would be reasonable. Of course, the answer from Mercil, as intended that narrow and specific question, would be, no, unreasonable.
Missing from all of this direct, of course, was any context around the complex dynamics and circumstances that often surround a police use of force event. That Schleiter wants to avoid any such discussion is understandable, because doing so provides an appearance for at least reasonableness, if not outright justification, for Chauvin’s use-of-force decisions and conduct with respect to Floyd.
Another common routine from Schleiter when doing direct on state’s witnesses who have any purported use-of-force expertise is to show them the photo of Chauvin apparently (but perhaps not actually) kneeling on Floyd’s neck and asking, “Is this an MPD trained neck restraint?” Invariably the answer is in the negative.
That makes for a good headline, but in fact it’s not very informative on the actual issues of the case. Why? Because just because a technique may not be an “MPD trained” technique does not make it outside of policy, does not mean it was legally unjustified, and certainly does not mean it contributed to Floyd’s death—which is what the trial is supposed to be all about.
Once again, Schleiter touched on positional asphyxia, and once again I feel obliged to note that this doesn’t really help the state prove Chauvin’s guilt beyond a reasonable doubt in the context of Floyd’s ingestion of a three-fold fatal dose of fentanyl. Certainly, if I had to choose between two situations, one in which I was placed in a prone position while handcuffed for 10 minutes, and another in which I was forced to ingest a three-fold fatal dose of fentanyl, I know which I’d pick, and quickly. There’s simply no reasonable comparison between those two risks to life.
So, the direct of Mercil was really just more of the Schleiter show we’ve already seen with other state’s witnesses. Kind of checking the boxes, but not even all the boxes needed to support the state’s narrative of guilt—and always by only exposing the jury to half the context, which is a dangerous ploy.
Basing your narrative of guilt on only half the context is a dangerous ploy because we, thank God, enjoy an adversarial legal system, and that means the defense gets to pop right up and expose the jury to the other half of the context, the half consistent with a narrative of innocence—and, in this case, they get to do so with your own witness.
And that’s precisely what happened with Mercil, and in a big, big way.
Nelson began by asking questions related to Mercil’s time as a street cop, with a particular emphasis on the tendency of suspects being subject to arrest to come up with all kinds of nonsense about why they shouldn’t be arrested that day.
Dangerous job, being a police officer? Yes. Are people generally unhappy about being arrested? Very rarely are they happy, Mercil answered. Do suspects frequently engage in a wide variety of behaviors to avoid arrest, including fighting, arguing, making excuses? Yes, they do, answered Mercil.
Indeed, when asked if he himself had ever disbelieved a suspect’s claim of a medical emergency as an apparent effort to avoid arrest, Mercil answered that he personally had done so.
All of this, of course, undercuts the part of the prosecution narrative that is relying on Floyd’s purported pleas and excuses about claustrophobia and anxiety and crying out for mama. Perhaps all of that is real—but a reasonable officer must also consider that maybe much of it is simply an effort to avoid arrest.
Nelson also once again put the use of pressure and body weight techniques in a favorable light. The state wants to present Chauvin’s knee in a negative light, as deadly mechanical asphyxiation, or as a “blood choke” as attested to by MMA Williams. In fact, however, the use of pressure and body weight to restrain a suspect was adopted by the MPD because it was a lesser intensity of force than the prior practice of using strikes—either barehanded, or with batons, or even with weighted gloves—to compel compliance. Mercil concurred.
The take home message for the jury is that Chauvin’s knee, far from being a public execution in a public street, was a lesser force than would otherwise have been required.
Whereas Schleiter wants to pretend that all of Chauvin’s use of force and other decisions should have been based solely on the needs and desires of Floyd, Nelson once again had the state’s witness concede that under the MPD critical decision-making model the officer must consider a wide breadth of factors beyond just the suspect, including the officer himself, his partners, any bystanders—especially angry or threatening bystanders.
Schleiter had described use of force in a very static and binary way—once a suspect stops resisting, the officer should immediately stop his use of force, period. But Nelson got Mercil to agree that if that suspect had been forcibly resisting the officer only moments before, that would be a factor weighing in favor of continuing to apply force even after apparent resistance had ceased.
That is, it’s not just what’s happening in the moment that counts, but what happened prior to that moment, as well. (Schleiter pulled this trick again with the last witness of the day, a Jody Stiger from LAPD acting as an expert witness for the state, and I don’t expect it to work out well there, either.)
Additional factors that a reasonable officer would take into account in deciding how much force to apply and for how long included a disparity in size between the officer and the suspect—and as we know, the 6’ 6” 230-pound Floyd was substantially larger than the 5’ 9” 140-pound Chauvin—as well as the circumstance in which a suspect not only fought police, but fought multiple officers—exactly as Floyd did in this instance.
When asked if additional use-of-force factors included if the suspect was believed to be on drugs, and whether being on drugs could give a suspect exceptionally great strength, Mercil agreed to both statements.
When asked explicitly if any of the video of the event showed Chauvin placing Floyd in a “choke hold” (in this context meaning a respiratory choke but the term has been used with careless disregard for accuracy) Mercil was obliged to answer that it did not.
When asked if a carotid choke, or what MPD would refer to as an “unconscious neck restraint” required both of the carotid arteries to be compressed, Mercil answered that it did. So much for MMA expert Williams’ testimony to the contrary.
Further, when asked how quickly unconsciousness occurred when a carotid choke was placed, Mercil answered “less than 10 seconds.” Clearly, then Floyd was not being subject to a carotid choke for the large majority of the 9 minutes or so Chauvin had his knee in place, and likely never during that period.
When asked if Mercil trained officers that a suspect who had become unconscious could regain consciousness, get back into the fight, and perhaps even be more aggressive than previously, Mercil responded that he did.
This, of course, is a rationale for Chauvin maintain his knee across Floyd’s back even after Floyd lost consciousness.
As noted above, Nelson also explored with Mercil whether there were circumstances in which it would be appropriate for an officer to maintain a neck restraint for a substantial period of time, and Mercil conceded that there were.
Sometimes to maintain the neck restraint for however long it took EMS to arrive, asked Nelson? Mercil answered that he, personally, had maintained restraint on suspects for the duration required for EMS to arrive.
To ensure the point: The state’s own use-of-force expert testified on cross that he personally had engaged in use-of-force conduct that the state had been using to demonize Chauvin as an unlawful killer. That’s not a good day for the state.
Nelson also again re-emphasized the reality that the officer involved in a use-of-force event must consider not just the suspect, but also the presence of an angry and growing mob observing what might well look like an ugly use of police force, and Mercil agreed that was the case.
On the issue of providing timely medical care, an issue the state pushes with particular energy, Nelson had Mercil agree that while MPD policy is to provide care as soon as possible, that must take into consideration the safety of the scene, and that the MPD policy actually requires that it first be safe for the officer to provide care before the officer has the duty to provide that care.
Indeed, factors such as whether a suspect had just been fighting with the officers was huge in determining whether an officer could reasonably provide care—especially if that “care” would be chest compressions requiring the suspect to have their handcuffs removed. Mercil answered in the affirmative.
Later, on re-direct, Schleiter would attempt to diminish the damage of this bit of testimony by asking Mercil if bystanders merely taking videos would constitute a reason to not provide care. The answer, of course, was no.
But that merely provided Nelson with the lay-up opportunity on re-cross to ask whether a mob shouting insults and outright threats would constitute such a reason—and that was conduct of the mob in this event—and the answer to that, of course, was yes.
Similarly, Nelson hit back on the state’s emphasis on the whole “recovery position” narrative in the context of hypothetical positional asphyxia. Might there be circumstances that would prevent putting a suspect in a recovery position? Mercil answered that there were.
If that all sounds bad enough for the prosecution, you ain’t seen nothing yet.
It was at this point that Nelson showed Mercil a series of photographs captured from the body worn camera of Officer Lane, and showing Chauvin’s knee on Floyd from the angle down Floyd’s proned body.
Photo 1: Where’s Chauvin’s leg in this image? On Floyd’s neck? Or on his shoulder blades and back. Mercil: Shoulder blades and back.
And in photo 2? Same. Photo 3? Same. Photo 4? Same.
This, of course, fundamentally undercuts the prosecution’s narrative of guilt that it was Chauvin’s knee on Floyd’s neck that killed Floyd.
Are there circumstances like those already discussed where would be appropriate to maintain presence of leg across shoulder blades and back in order to ensure control of the suspect? Yes, there are, Mercil answered. For as long as 10 minutes? It’s possible.
Ouch.
In other words, the use of the restraint can be justified not only to compel compliance of the suspect in the first place, but to ensure that the suspect maintains compliance moving forward—especially given the experience and concern that unconscious suspects can revive and be even more violent than they were prior, even if that restraint is being held in place for as long as 10 minutes. And that’s not just for the safety of the officer, but also for the officer’s partners, for bystanders, and even for the suspect himself.
Just devastating for the state’s narrative, and all of it coming from the state’s own MPD use of force expert.
It was after Nelson was done with cross that Schleiter attempted to salvage something from this train wreck for the prosecution by showing a still photo of the bystanders, pointing to some holding phones, and asking if people taking videos was a good enough reason to maintain a restraint. Mercil answered that video taking by bystanders was not a sufficient reason.
That’s when on re-cross Nelson pulled up the exact same photo that Schleiter had just used, and pointed out that in the picture MMA Williams was clearly being physically restrained from advancing on the officers by the arm of another bystander pulling him back.
Would the threat of imminent physical violence from bystanders be a sufficient reason to maintain restraint on a suspect? If the crowd is shouting that they’re going to slap the “F” out of you, that you’re a “p-word,” that you’re a bum, would that be sufficient to cause the officers to be alarmed about the prospect of imminent physical violence from the bystanders?
Yes, Mercil answered, it would.
There is, of course, more granularity in the actual video cross of Mercil, and I strongly encourage you to watch the whole thing, but that’s all I’ll cover in text form here.
Here’s the direct, cross, re-direct, re-cross, and re-re-direct of Mercil:
Mercil Direct Questioning
Mercil Cross-Examination
Mercil Re-Direct
Mercil Re-Cross
Mercil Re-Re-Direct
State’s Witness: MPD Officer Nicole MacKenzie, Medical Support Coordinator
But the state’s terrible, horrible no good, very bad day wasn’t over yet. Next up was the state’s MPD expert on medical issues, Officer Nicole MacKenzie.
Again direct was by Schleiter, and again he used the same old playbook. Provide half the context, in a childishly simplistic form that stripped out all context and certainly ignored the totality of the circumstances.
On direct, Schleiter had MacKenzie testify about how officers had a duty of care to suspects, that Chauvin had CPR and other training that would qualify him to provide emergency care, and that such care must be provided by the officer even if an ambulance has already been called. This was all particularly the case if the suspect was unresponsive, if the suspect was in handcuffs, if the suspect was in the prone position, and so forth.
And again, Nelson pimp-slapped him hard on cross.
Isn’t it true, Nelson asked MacKenzie, that you train officers to consider not just the suspect, but the totality of the scene? Yes, she replied.
Isn’t it true that police officers also have a competing duty of safety to themselves, their partners, to bystanders, that paramedics, for example, don’t have? To the point that if the scene is unsafe, if the officers haven’t already announced a code 4 “all safe,” that EMTs will stage a distance away until they are told safety has been achieved. Yes, MacKenzie replied.
And isn’t it true that the safety concern might come not from the suspect himself, but from angry bystanders? Indeed.
We keep seeing Nelson circle back to this reality, and it’s a potent view of the events around Floyd’s death. It raises the legitimate question of whether it was, in fact, the angry bystanders who in effect “killed” Floyd by interfering with the officers’ ability to provide Floyd with the attention and care which he’d otherwise have received.
Indeed, their angry presence compelled the paramedics to do a “load and scoot” of Floyd, delaying his effective treatment, and resulting in further delays when the fire department could initially not find the re-located ambulance.
Along these lines, Nelson also touched on a new issue, that of agonal breathing. This is a kind of “last gasp” desperate type of breathing a body near death engages in, and is generally considered an ineffective form of respiration and a sign of really desperate physiological condition.
Isn’t it true, Nelson asked, that agonal breathing could be misinterpreted by officers as just breathing? Yes, answered MacKenzie. Would this be a more likely misinterpretation if the scene was noisy, disruptive, had the presence of a loud angry mob? It would, answered MacKenzie.
Again: Did the mob effectively “kill” Floyd?
Nelson noted that one of the CPR training slides previously shown by Schlieter on direct questioning of MacKenzie had indicated that one of the reasons an officer could justifiably cease performing CPR was if the circumstances were not safe enough to allow continued CPR. Would this also mean that unsafe circumstances could justify not starting CPR in the first place, even where CPR would otherwise be warranted. Yes, answered MacKenzie.
A highlight of the cross of MacKenzie occurred when Nelson pulled up another slide from the training materials. This one showed a picture of a type I’ve seen many times, intended to illustrate in dramatic form just how lethal fentanyl is.
The picture showed a vial of heroine, with a small bit of powder in it—that small amount of heroine represented a fatal dose. Beside it was a second vial, with a much smaller amount of a powder—that represented a fatal dose of fentanyl. Finally there was a third vial, with a truly miniscule amount of powder—that represented a fatal dose of a particular common variant of fentanyl.
One can only imagine the effect this had on a jury that is naïve to the lethality of fentanyl, especially given that death by fentanyl overdose is the obvious explanation for Floyd’s death as an alternative to Chauvin’s death knee.
Naturally, recognizing the damage being done to their narrative of guilt, the prosecution raised an objection, and there was a lengthy sidebar. When Nelson returned to cross, he immediately moved on to another topic, so perhaps Cahill upheld the state’s objection to the vials image.
In any case, the next topic for discussion was also incredibly damaging to the state—and made even more so, as we’ll see.
Nelson began to explore the question of excited delirium with MacKenzie. This was a topic that MacKenzie trained MPD officers on, so she had expertise, and Chauvin would have received this training, so the knowledge is relevant to his decision-making with respect to Floyd.
You’ll recall that we can hear the officers discussing concerns about excited delirium on their BWC videos.
The importance of excited delirium for the defense is that it explains both a lot of Floyd’s erratic behavior, raises genuine concerns of super-human strength on the part of the already very large Floyd, provides a justification for the sustained restraint of Floyd’s entire body from foot to head as that’s part of the excited delirium protocol for police, and more.
Naturally, again seeing the damage done to their narrative of guilt, the prosecution objected, and there was another sidebar. When Nelson returned he again promptly moved on—but, we’ll learn, not because he was giving up on excited delirium—and not without having yet another line of questioning for MacKenzie that would prove severely damaging to the state.
Here Nelson began to ask again about the reasons that arriving paramedics might do a “load and scoot.” Why that approach, if the patient needs care?
One reason, MacKenzie answered, was that the patient might need immediate care that could only be provided at the hospital, such as emergency surgery.
Understood, replied Nelson, but might there be another reason?
Yes, answered MacKenzie. Unfortunately, and this might be hard to believe, she said, but there have been instances in which paramedics were attacked by an angry crowd. If that’s a concern, the paramedics might do a load and scoot purely for reasons of their safety.
Exactly as happened in the case of the paramedics arriving at the Floyd scene.
Wait, it gets worse.
Is one of the reasons the ambulance might do a load and scoot is not just the safety of the paramedics, but that the presence of an imminently threatening crowd would make it difficult or impossible for the paramedics to focus on providing proper care to their patient?
Yes, answered MacKenzie.
Boom. Again: Did the mob effectively “kill” Floyd?
And that was the end of Nelson’s devastating cross of MacKenzie.
Not that it was MacKenzie who was devastated, any more than Melcir had been devastated. Both were treated with respect by Nelson, and came across as genuine professionals.
Rather it was the state’s narrative of guilt that was devastated.
And it’s not over yet.
On re-direct by Schleiter we had a perfect, classic example of why a lawyer should never ask a question unless he knows the answer he’s going to get.
Isn’t it true, Schleiter asked MacKenzie, that officers shouldn’t expect to only have a duty to provide care under perfect circumstances? MacKenzie agreed. So far so good.
But then, in an effort to undercut Nelson’s characterization of the bystanders at the Floyd scene as constituting a hostile crowd, Schleiter asked MacKenzie for her definition of a hostile crowd.
Her answer: A growing contingent of people, yelling, being verbally abusive to those providing scene security, acting in manner that could interfere with care.
Boom. Exactly as the mob was conducting itself at the Floyd scene.
Again: Did the mob effectively “kill” Floyd?
And it’s still not over for the state.
It was at this point, when both sides had completed today’s questioning of MacKenzie, that it was revealed that the state had objected to Nelson’s asking MacKenzie about excited delirium. Rather than fight that objection, Nelson took a different approach entirely.
He informed the court that he intended to recall MacKenzie as a defense witness for his own case in chief.
That’s right. Not only was MacKenzie’s testimony, as a state’s witness, incredibly damaging to the state itself when Nelson was limited to the role of cross-examination, and limited by the state’s own scope on direct, Nelson was going to bring MacKenzie back as a defense witness, where he would be in control of the scope of direct, and the state would find itself limited on cross.
And that was it for state’s witness MacKenzie—until we next see her as defense witness MacKenzie.
I. Cannot. Wait.
Here is the direct, cross, and re-direct of MacKenzie:
MacKenzie Direct Questioning
MacKenzie Cross-Examination
MacKenzie Re-Direct
State’s Witness: Sergeant Jody Stiger, Los Angeles Police Department, Expert Witness
The last witness of the day was one Sergeant Jody Stiger, of the Los Angeles Police Department, who has been retained by the state prosecutors as an expert witness on use-of-force tactics and policy.
I’m going to cover Stiger only quickly here, because the court day ended in the middle of his direct questioning, and the state’s direct of their own witnesses has not proven particularly enlightening even when the witnesses were apparently strong.
And, frankly, Stiger does not appear to be a particularly strong or impressive expert witness, so I don’t expect the state to garner much value from him. Sure, I expect he’ll say the words the state is paying him to say, and he did so today, but that’s what we routinely see that on direct from the state. (Although, that said, his direct today was pretty weak, really, and I don’t expect that to improve tomorrow.)
More to the point, if Stiger proves as weak on direct as he appears so far, I expect that Nelson will make easy and bloody work of him during cross-examination tomorrow.
In the interests in getting this blog post out in a timely manner, however, so everyone can enjoy the cross of Mercil and MacKenzie, I’ll leave my comments here with respect to Stiger, and pick him up again after he’s gone through the whole state’s witness experience tomorrow.
In any case, here’s the portion of Stiger’s direct questioning that took place today:
Stiger Direct Questioning
That’s all I have for all of you today. We’ll be back again in the morning for our LIVE coverage of the trial proceedings, so join us then. And of course we’ll have our usual end-of-day wrap-up commentary and analysis in the evening.
Until next time, stay safe!
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike. He wrote the first edition of the “Law of Self Defense” in 1997, which you can now order in its current edition for just the price of shipping and handling by clicking here. To know YOUR state’s use-of-force laws in an actionable way that will keep you safer physically and legally, take our state-specific advanced use of force class either streamed online or via a shipped DVD with a 100% no-question- asked money-back guarantee, here: Law of Self Defense State Specific Use-Of-Force Class.
UPDATE: Hey folks, obviously thousands of you are new to me, Attorney Andrew Branca, and my firm, Law of Self Defense, and I have to say it’s really humbling to see this onrush of attention–and thanks to so many of you for your kind words and encouragement! For those who’d like to know more about what we do, I’d like to offer each of you a complementary copy of our best-selling book, “The Law of Self Defense: Principles,” a plain-English explanation of use-of-force law, for FREE. Normally the book is $25 + S&H, but if you’ll just cover the S&H cost of getting the book to you, we’ll cover the $25. If you’re interested–and I hope you are!–just click here: FREE COPY Law of Self Defense: Principles Book.
[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]
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Comments
Andrew, you were great in the Zimmerman trial, likewise great here. Too bad the rest of the world is not getting what you are providing! Keep it up, too bad for Minneapolis….
That’s very kind of you.
Andrew, you are reporting. Facts and opinions – clearly separated. When it is good for a side – you say it and support it. Likewise, when it its bad – you say it and support it.
In a day or week – sometime in the future – a lot are going to wakeup (my opinion – hopefully) that the trial was rigged – only in the sense of the reporting did not provide the balance for an individual to draw their own conclusions (as long as the fact clearly support it). I hope that the jury see it as clearly as you are presenting it. My simple faith in man.
I have a strong opinion in this case, and so far it appears the facts support it.
Thank you.
Revolver News has been linking to your stories.
I’ll second that. I have been an Andrew fan (and LOSD member) since Zimmerman. There is absolutely nothing else like this analysis anywhere on the internet.
Same here!
It was watching the Zimmerman trial and then watching the mainstream media commenting on it, that opened my eyes to how biased and deceitful the media actually is.
This reminds me very much of the Zimmerman trial. Same sense of “WHY IS THE PROSECUTION CALLING THE DEFENSE’S WITNESSES?!”
Why is Chauvin taking so many notes and participating in the sidebars?
If it was my tail on the line, I would be buried deep in the process…
Chauvin’s freedom and possibly his life is on the line, he knows the basics of the legal situation, and he knows the details of the factual situation. He wants his best chance and apparently thinks that’s being involved in the process. I’d be dubious (a lawyer who represents himself has a fool for a client; goes treble for a nonlawyer) but since his legal team seems to be doing a good job….
Regarding Chauvin taking notes, there is also the question of the impression Chauvin is making on the jury. While taking notes may not be the best way to make a good impression it is far from the worst way. Nelson may feel that having Chauvin taking notes keeps him occupied and out of trouble.
This. Just sitting and staring looks cold.
I noticed in the Rittenhouse bail Zoom where the prosecution was getting the heck slapped out of them by the judge about their nutty demand for a few million more in bail, that Kyle had his mask on and was focused on a spot down and to one side of the camera constantly, every minute of the call. I could only imagine his lawyer having taped a note there reading “Look here, shut up, and don’t make excess movements until after the call is over and I say so.” In that case, that was a quite effective defense strategy.
Why didn’t they let the Stiger testimony finish?
Yet if you were getting your news from, say, The Guardian, you would have walked away with the impression Mercil’s testimony was damning for Chauvin.
That’s how you manufacture riots.
Good job Andrew. Thanks for this coverage.
I have a question for anyone who knows things. How do Hall’s 5th Amendment rights square against Chauvin’s 6th Amendment right to get witnesses in his favor?
5th trumps. 6th guarantees PROCESS for obtaining favorable witnesses. Witness can still plead 5th.
So a question I still have about that. Hall is not on trial, Chauvin is. If Hall is called to the stand, he can certainly plead the 5th, and the jury cannot draw any conclusions about HALL’s guilt. However, they are allowed to draw conclusions about a witnesses silence when it comes to the guilt of the defendant. “Are you a drug dealer? Did you supply fentanyl to Floyd? Was it this amount or more?” “I plead the 5th, I plead the 5th, I plead the 5th.” None of that can be used in this trial, since Hill isn’t on trial, not in any other trial, as evidence against Hill. But the jury can evaluate his answers as regards to Chauvin- was Chauvin responsible for the death? Or the drugs?
Also concerning Hall, how badly will this trial (regardless of its outcome) impact a prosecution (if one should take place) of Hall for Floyd’s death? Would it prevent his prosecution? Would it be necessary to bring a complementary set of charges against Hall? Or could they charge Hall with any of the same charges?
Is the state’s failure to charge Hall permanent (i.e., once they charged Chauvin with Floyd’s death they locked themselves into a narrative), or is it strategic – they are temporarily keeping Hall off the hook in order to not cause an apparent conflict with their prosecution of Chauvin, who they consider the bigger fish to fry.
“Mr. Feder, you sure ask a lot of questions!”
“… they locked themselves into a narrative ..”
IANAL but I don’t think the state is generally obligated to present consistent theories of the case in different trials. People sometimes try to appeal convictions on this basis but I don’t think it is easy. But I suspect there may be some subtilties involved that are better explained by an actual lawyer.
Maybe this has been mentioned elsewhere, but the cross of Mercil destroys much of Zimmerman’s credibility and makes him appear to be an out of touch desk jockey.
Zimmerman stated to Nelson that he wasn’t sure he’d agree that MPD had moved away from striking and towards more body weight control. Mercil stated that not only did this change happen (he developed the program), but it happened 10 YEARS AGO.
At some point, one has to ask, where has Zimmerman been for the last 10 years?
IMHO there is not a prayer in hell that Hall will ever be charged with anything related to Floyd’s death. It simply does not fit the narrative. The state would have gladly handed this criminal blanket immunity if they thought he would help this case even a tiny bit, but they realized he would help the defense, not them.
Andrew, thank you as always. Very, very helpful to have your commentary while watching the video.
A request for LI: may I ask that you generate an archive page for all of Andrew’s posts in the Chauvin case? I’d very much like to point family members and friends to such a page with the admonition to RTWT.
Many thanks for considering.
https://legalinsurrection.com/tag/george-floyd-derek-chauvin-trial/
Professor – Thank you for providing the venue for so many of the most egregious cases to be presented in a cogent fashion – Zimmerman, Oberlin, Chauvin, etc.
Either you were really quick or I missed it 🙂
Thank you!
Great coverage. One of LIs strengths.
Great, great coverage. And man, that’s a huge helping of some seriously delicious schadenfreude served up for the prosecution. Hoping to go back for seconds tomorrow…
OMG, I didn’t realize Hall was on video from jail! Incredible.
I wonder if the judge will get word that Crump was holding a press conference outside the courthouse around the lunchbreak period. The last thing they need right now is Crump and family members trying to pubicly influence the outcome of the trial.
It sure seems as if were an act of desperation. No one is forcing family members to be sitting in the court room or watchingit on tv.
Crump manufactured the fraudulent witness Rachel Jeantel in the George Zimmerman trial. She wasn’t really his girlfriend, and she wasn’t on the phone with Trayvon that night. Crump belongs in jail.
DD !
Disbarred at a minimum.
I know that this is a very serious trial, but I just couldn’t help laughing out loud at the prosecution’s incompetence.
As to Mr. Nelson, Esq’s performance, I would say he has a bright future ahead of him. A VERY bright future.
And finally, thank you so much Andrew for your continuing superb complete analysis and commentary on the case.
The irony is striking – Mr. Nelson using some serious verbal jujitsu moves on the prosecution. AKA their “strong” witnesses actually becoming their greatest weakness.
Everyday, I grow more impressed by Mr. Nelson and more appalled at the State’s weak case.
“…more appalled at the State’s weak case.” Amen! I was just thinking how terrible it would be to be a victim of a violent crime and the cops caught the criminal but these wankers were in charge of prosecuting him.
Defense attorney Nelson has been outstanding in cross-examination. Using short ‘yes/no’ questions in a tone of reasonableness, that lead a witness down a path where ultimately the witness will make the defense’s point (we’re done), or will deny it (but the question hangs in the air, positing the witness’ credibility once again . . . annnnd, we’re done).
Today for example he managed to use the prosecution’s own witnesses to establish many of the defense’s key points.
Making the prosecution’s witness score the defense’s goals has always been a hall mark of successful defenses.
If Nelson can keep this up and is at good at summation as he is as cross, it’s a defense verdict, or hung jury at worst.
I’m expecting a hung jury. I think half the jurors went in there having already decided to convict Chauvin. The judge’s rulings DURING TRIAL are seemingly reasonable, but his rulings DURING JURY SELECTION were shockingly biased in the prosecution’s favor.
Also, not allowing a change of venue seems criminal. If this case doesn’t warrant that, what does? That was this judge that decided that, right?
Change of venue was as warranted here as in the Boston Marathon bombing case. I just don’t understand how lax the legal standard must be to deny a motion for change of venue.
And a hung jury will be a problem for the people of Minneapolis, because it means the prosecution can have another bite at the apple, and prolong the threat of riots and such.
You are correct, Mr. Hall made his video appearance from prison.
https://jailroster.hennepin.us/JailRosterOnline/jail-roster/search-results/details/2021003956
Good find!
I am surprised that none of the charges are drug related.
His case #2 is a felony, failure to appear. I haven’t yet been able to figure out if it is related to the domestic or a separate case. I assume separate since it is a different county.
https://co.redwood.mn.us/jail/warrants2.html
Floyd’s drug supplier is charged with domestic abuse by STRANGULATION! HAH!
https://amgreatness.com/2021/04/06/when-hate-crimes-dont-matter/
I love reading Andrew’s analyses. The liberal media just gives us one side of the story. To me, Nelson against the dream team of lawyers is like a David-Goliath battle.
JLT – I was thinking the exact same thing!
A State objection that was evidently overruled was followed by “Sidebar”.
I then heard the judge abruptly say “No.”
They rather fell silent after this. I think the State heard the same thing in the ‘No’ I did: a ‘POed’ judge who was tired of strategic interruptions
Isn’t there a danger of the two state witnesses who ended up supporting the defense theory turning hostile when Nelson uses them for defense?
I thought Nelson was only recalling McKenzie?
Mercil, a state witness, became a defense witness during the cross. McKenzie will be recalled to talk more about the excited delirium as part of his case.
I guess the Gnoem got religion
too late, lady
Agreed. My tolerance level for mewling from members of the nominally conservative party is at zero. She had an easy, moral choice to make, a layup, and she failed miserably. I hope she does well for SD, and I hope she stays there.
Mercil may love BJJ, but Nelson appears to be a master of traditional jiu-jitsu, in which the defender takes what the attacker gives him and uses it against him.
Andrew was correct. Morries Hall is currently in the pokey.
https://mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/Order04052021.pdf
Its wild to me that the prosecution is still in the process of disclosing police reports.
https://mncourts.gov/mncourtsgov/media/High-Profile-Cases/27-CR-20-12646/DiscoveryDisclosure04062021.pdf
At first I thought that the size of the prosecution’s team, and the substantial help from outside firms, was from a combination of lawyers wanting to get their names on a big case and lawyers/firms who were somewhat altruistically motivated by the ramifications of the case.
But now I’m leaning towards the prosecution using so much firepower because of how weak this case is based off of the totality of evidence. They know it’s a loser and they’re trying to use brute force to win.
This is going to be a hung jury.
Having 15 shooters is of limited help when all you have to shoot are BBs.
Then the defense counsel approaches the witness stand with a 12 guage and blows holes in your case big enough to stick your head through.
I offer thanks to God for these two lawyers, Nelson and Branca, for so brilliantly standing as the point of the spear for justice, and against the corrupt mob.
Well, shucks.
In a fair world, Andrew Branca should be on track for a Pulitzer and Eric Nelson’s cross should be assigned in law classes across the nation.
Thank you so much Andrew – sounds like you’re a voice of honesty & decency in evaluating these proceedings – a much needed perspective given the wildly lying & distorting media coverage. God help those jurors when it comes to deciding this case, & whatever backlash they may have to deal with. I hope they stay safe.
Speaking as a retired former public defender and criminal defense attorney, two things are jumping out at me.
First, this prosecution was doomed from the beginning. The evidence simply does not support the charges. The obvious conclusion is that it’s a political prosecution, pursued because the political forces who control the prosecution believed it was politically necessary.
Second, Schleiter is a terrible trial lawyer. The best prosecutor in the world would have a very difficult time making a credible case here. Schleiter is a bungling incompetent in way over his head. I’ve faced any number of deputy prosecutors with very limited trial experience who would have done a vastly better job. The worst mistake prosecutor can make is to ignore evidence and arguments on direct in order to make points. It’s literally setting up the defense to destroy your case as is happening here. Perhaps even worse, Schleiter is destroying his credibility with the jury. The jury will begin to doubt everything he says and wait to see how things look after defense counsel provides additional evidence, context and perspective. When the jury doesn’t trust the prosecutor and does trust defense counsel a huge part of the battle is already won.
I’m wondering just how Schleiter wound up with this case. Did those in charge realize the case was unwinnable and give it to an incompetent because no competent prosecutor would accept the job? Or is the entire prosecutor’s office so incompetent that none of them understand the case is unwinnable? Is Schleiter the senior clown in the circus?
Whatever the case may be, an terrible case that should never have been brought is being exposed even more thoroughly by nearly unbelievable incompetency on the part of Schleiter.
Thanks for an excellent comment on excellent coverage.
Is there any way to guess when to expect the jury to return its verdict? Today is April 7, so by the end of the month? Those of us who live in big cities need to be aware of that.
Thanks again!
I’m sure Andrew has a better feel for this one than I do.
No, I’ve no idea. Juries are chaos and uncertainty. That’s why you never want to be in front of one–you can be the most innocent person in the world, and the risk of conviction is still always greater than 0%.
Thank you! And thanks for your superior coverage!
If we had to rely on the legacy media for this story, we’d be in totally in the dark.
TY Novoculus..
TY Novaculus,
Your questions are spot on.. It is obviously a political case, an very important one, you would think they would have called up the best and brightest. Complicated shenanigans. Sadly a man’s life is on the line.
It’s likely that winning is not defined as obtaining an actual conviction (though they’d take a conviction if offered, for sure) but rather as gaining political capital. In the political context, this is a no-lose scenario for those advocating prosecution. If they get a conviction, it’s proof of institutional racism, of POLICERACISTMURDER. If they do NOT get a conviction, it’s also proof of institutional racism, as the legal system won’t even convict in what they see as an obvious case of POLICERACISTMURDER (I’VE SEEN THE VIDEO!!!!!).
Heads they win, tails you lose.
Even if Hall is allowed to plead the 5th on all questions, will he still be required to appear in court and testify that he is pleading the 5th to each one? This seems huge.
IANAL but my guess is that Judge Cahill will probably not require Hall to do that. I think I understand tactically why Nelson wants to put him on the stand but it seems to me that Hall’s testimony would be more prejudicial than enlightening. What matters to Chauvin’s defense is that the drugs were in Floyd’s system and likely killing him due to an overdose. How he obtained them and how they got there are somewhat interesting details, and Hall could probably verify that Mr Floyd did ingest the drugs, but I don’t see that as being a critical detail.
“but I don’t see that as being a critical detail.”
I disagree …
No matter what, Hall will have the protections afforded by the 5th amendment and he can invoke it at any time. Chauvin deserves the opportunity to offer testimony that casts doubt on the states theory and Halls testimony would help that, whether he says anything or not … and the jury needs to hear him plead 5th amendment protections and infer what they will.
Almost certainly not.
Yeah, I believe devastating is the right word today for the state’s case against officer Chauvin! Man if today doesn’t establish reasonable doubt in the minds of some of the jurors I don’t know what will, except maybe when Nelson brings MacKenzie back in to testify on the defense’s side! You know Nelson’s already got some incredible questions being lined up to ask her when he puts her on the stand!
Really informative article, thanks.
When it comes time for jury deliberations – I imagine there is nothing preventing the jurors from getting on the ground and placing themselves in the positions that Chauvin and Floyd were allegedly in – both their original understanding of the knee on neck and the knee across shoulder.
But, would they be allowed to access some sort of lense that would allow them to observe the “forced perspective” first hand? Meaning could they get people into position with knee on back, and then go back with a lense and see how it looks like the knee was on the neck?
Or would they only be allowed to see this through their naked eyes?
Also – I am constantly surprised at the chasm differentiating my understanding of the testimony (both reading it and listening to it) and what is being reported in the media. If you read any mainstream outlet it’s been nothing but hit after hit for the prosecution.
I said this to several friends from the first days of the trial when I first watched the floyd videos (both bystander and body worn cameras) – this arrest doesn’t look like anything I haven’t seen before hundreds of times in my profession. I worked for nearly 20 years in hospital security and have medically restrained probably over 1,000 people. While we never used the knee on shoulder technique as we were typically restraining people in the supine position, everything else in regards to the struggle to control the large individual in an altered mental state is spot on with my experience.
Gaining control over a person who is resisting can appear to the onlooker to be very traumatizing.
You may need to be prepared for the real possibility the jury is much like the press in that they hear and magnify what they want to hear from the Prosecution, but ignore and discount anything said or presented by the Defense.
Placing your fate into the hands of 12 strangers is a dangerous and desperate gambit. Always avoid it if at all possible. However, Defendant was forced into this course of action by he state that is, as far as I am concerned, and annex to the mob in the street.
I see
Bad moon rising
I see
Troubles on the way
If you
Own an Apple Store
Or Nike
No matter which way the verdict goes, guilty, not guilty, or hung jury, the riots in anger or celebration are going to be just another step in the ongoing destruction of the country. Arm up. Stock up.
.
Reading your analyses, Andrew, I keep thinking of the words of Moses to Israel, as he tells them that their national survival depends on pursuing “Justice, and only justice” (Deuteronomy 16:20). Your posts are no doubt one of the few places that is happening, sadly for our country.
Thank you, again, Mr. Branca for your excellent summaries and for sharing your legal knowledge with us. It has been enlightening and informative.
Andrew-outstanding coverage. As I’ve read your summaries of the trial I have a few questions.
Do you feel the prosecution is poorly prepared or do you think they overreached in charging him just to stop the rioting? I’m simply not seeing evidence to convict him of any of the murder related charges. Before the trial began I thought maybe the manslaughter (think it was that one) may have fit but I’m not seeing that here either.
I think the defense has built a pretty good “the police felt threatened by the crowd, therefore they took reasonable steps to control the situation” defense, and this is the prosecutions case.
I think the prosecution can’t get past the drugs in his system.
I do worry that the jury may convict on something to avoid a riot. Which makes me wonder if the judge may need to sequester the jury. A BLM activist threatening riots if there isn’t a conviction seems to be jury tampering ethically if not legally.
The only mainstream media headlines I saw yesterday emphasized Stiger’s testimony, which is telling
I just want to add my voice to the chorus of those thanking Andrew for his outstanding, detailed and knowledgeable coverage of the trial. If riots result from a non-conviction the blood will be on the hands of the rest of the media who are disgracefully slanting the story against Chauvin.
That’s very kind of you.
An added concern was the media’s attempt to publicly identify the jurors (WaPo, if recalled correctly), a blatantly intimidating action for which they were immediately taken to task in some quarters. Having gone silent with respect to this activity doesn’t mean they’ve discontinued the effort and won’t pursue and intimidate them when the trial ends regardless of the outcome.
Comments regarding the prosecution’s competence and state’s overcharging seem linked. Demanding prosecution of these charges seem a near-Herculean task considering the political pressure probably brought down by Keith Ellison, MN’s AG, and Jacob Wertz, the Minneapolis mayor, and the governor whose name I can’t recall, three of the country’s worst on a long list of terribles in the categories.
Once again, Andrew’s coverage is superb and Legal Insurrection cannot be thanked enough for its presentation.
Correction – Jacob Frey, Mayor. Still on the list of terribles.
Simply epic analysis from Mr. Branca. Thank you for taking the time and effort to post such a lengthy and astute analysis!
We’ve become spoiled here at LI with your copious courtroom and legal observations. I’ve been reading them since the Zimmerman trial, where you illuminated that farcical prosecution with your inimitable commentary.
This was elicited on direct, led by Prosecutor Schleiter, no doubt to buttress Mercil’s credibility
Actually, it might also have been to buttress the credibility of the other “use-of-force dude” and his “expert” MMA testimony.
Positional asphyxia can be ruled out because in cases of EXD that type of approved method of restraint does not cause it as shown by studies of blood gases in deceased persons.
The data on EXD and approved restraints are in Chauvin’s corner. See especially this paper the “Outcomes” section starting on page 79. This is from doctors studying the condition Floyd exhibited, not cops or politicians.
https://archive.org/details/pubmed-PMC3088378/page/n1/mode/2up
Superb analysis, Mr. Branca.
For me it (IANAL) all comes down to one question: can the prosecution eliminate drug overdose as the cause of death beyond a reasonable doubt?
I just don’t see how that’s possible on these facts. Am I off base?
A very big compliment from Scott Adams to LI and Andrew today.
https://www.scottadamssays.com/2021/04/07/episode-1337-scott-adams-fake-news-guilty-of-third-degree-murder-imaginary-news-and-lots-of-surprises/
The stronger the Prohibition the stronger the Drugs.