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Chauvin Trial Day 8 Wrap-Up: “I Ate Too Many Drugs” Video May Be Game-Changer

Chauvin Trial Day 8 Wrap-Up: “I Ate Too Many Drugs” Video May Be Game-Changer

Once again the defense weaponizes prosecution ‘expert’ witnesses against the prosecution case.

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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.

Personal Message from Andrew: Hey folks, obviously thousands of you are new to me 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 complimentary 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.

State’s Witness: Sergeant Jody Stiger, Los Angeles Police Department, Expert Witness

Today’s testimony began with the continuation of the direct questioning by Prosecutor Schleiter of 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.

You’ll recall that the direct of Stiger began yesterday afternoon and ran for 30 minutes, until Judge Cahill decided to call it a day.  That direct continued today for about another 45 minutes, before the witness was turned over to the defense.

Here’s a leading indicator that state-paid use-of-force expert witness Stiger was ultimately more favorable to the defense than he was to the prosecutors who’d paid him $13,000 to provide his expertise to help convict Chauvin:  Whereas the State spent about 75 minutes questioning their own expert, Defense Counsel Nelson spent more than 90 minutes doing so.

That’s right, so fond was the defense of the State’s expert, so strongly did the defense believe that the testimony of the State’s expert favored Chauvin, that they spent 20% more time engaged with that expert in front of the jury than did the prosecutors.

In fact, the disparity is even worse if we only look at substantive questioning.  Any party who calls an expert witness has to take time to establish the expert’s credentials, training, experience, and then also the methodology used by the expert to form their opinion.  In this case that took the state a full 20 minutes, meaning they only questions Stiger substantively about his expert opinion for 55 minutes.

In that context, the defense actually spent 65% more time with the State’s expert witness, in front of the jury, engaged in substantive questioning, then did the State that paid that expert.

Folks, when the disparity in engagement is that great, I’m not at all sure that the State shouldn’t refer Stiger’s bill over to the defense for payment—certainly by the end of his expert testimony it sure felt like Stiger was more a defense expert than a state expert.

I do want to make clear up front that Stiger did right by his client and said the magic words they wanted him to say:  In effect, that in his expert opinion, to a reasonable degree of legal certainty, Chauvin’s use of force on Floyd was excessive.

Fair enough.

But there are, of course, two sides to la egal fight in our adversarial system, and today with Stiger subject to the cross-examination of Defense Counsel Nelson we got to see the other side of the argument.

So, let’s jump right in.

Stiger Direct Questioning

Once again, the prosecution sought to present the jury with a narrative of events stripped of all context and circumstances—and I’ll say again I find this to be a terribly flawed legal strategy, because inevitably the defense gets to jump up and present the rest of the context.  The result can only be a loss of credibility of the prosecution in the eyes of the jury.

In this instance, Schleiter framed the use-of-force narrative in an extremely narrow sense by defining what he called the “period of restraint,” essentially the period from when Floyd was proned on the street until the Chauvin turned Floyd over to the paramedics, a period of some 9 minutes and 29 seconds.

The reason for this framing is to suggest that everything else that had happened with Floyd prior to the start of the “period of restraint” should be considered off the table for the purposes of evaluating the reasonableness of Chauvin’s use of force.

This is, of course, utter nonsense.  A suspect who has been 100% compliant with arrest throughout is fundamentally a different (and much lower) risk for officers than is a suspect who has violently fought multiple officers for 10 minutes, to the point where the officers concluded their efforts to make a lawful arrest were futile.

To pretend that the officers who had just fought the violent suspect for 10 minutes are supposed to erase that experience from their brains the moment the suspect appears to have ceased resistance is simply ridiculous, even childish.

Another trick suddenly employed by the prosecution today is to move the goal posts on what they claim was Chauvin’s precise physical misconduct. Throughout the entire week and a half of the state presenting their case in chief they have been claiming that Chauvin placed his knee on Floyd’s neck.

Initially, according to the state witness MMA “expert” Williams, the placement of the knee on the neck constituted a “blood choke,” a use of deadly force upon Floyd. Later, the defense argued that this was constricting Floyd’s ability to breath, initially by compression of the neck, later by compression of Floyd’s whole body, and then all that augmented by purported “positional asphyxia.”

All those arguments were, of course, presented as if Floyd did not have a three-fold fatal level of fentanyl in his system, which effectively also kills via asphyxiation.

This line of argument took a body blow from the defense, however, when Nelson began displaying images of the knee placement from different angles showing that Chauvin’s knee appeared to be on Floyd’s shoulders and back, rather than on Floyd’s neck. Indeed, Lt. Mercil, the state’s expert on MPD use-of-force training and policy explicitly agreed on cross-examination that this appeared to be the case.

So what’s the state to do when a key facet of their narrative of criminal conduct is contradicted by their own expert?  Move the goals posts, of course.

Today, however, Prosecutor Schleiter and his state-paid use of force expert Stiger began to avoid the claim that Chauvin’s knee was on Floyd’s neck, and instead started referring to Chauvin’s knee being on Floyd’s “neck area.”

What’s the “neck area”?  Well, the shoulders and upper back!

Again and again we heard Schleiter and Stiger refer to “neck area,” “neck area,” “neck area,” as if repeating it often enough would fog our minds, and the minds of the jury, and we’d simply be unable to realize that the goal posts had been moved.

Pro-tip: Don’t do this in legal argument, especially if you know your direct questioning of your well-paid expert witness is going to be immediately followed by Defense Counsel Nelson’s cross-examination.  We’ll cover how Nelson dealt with this act of sleight of rhetoric in a moment.

Another trick used by Schleiter to strip context from the dynamic confrontation with Floyd was to have expert witness Stiger reference the MPD policy on use of force, and read off three bullet points that policy highlights as guidance for a reasonable officer.

Specifically, those bullet points indicated that in deciding upon a use of force the officer should consider the severity of the crime at issue, whether the suspect poses an immediate threat of safety to the officer or others, and whether the suspect is actively resisting.

These are all reasonable guidelines for use-of-force.  Schleiter’s deception, however, was to present these three bullet points as if they were not merely guidelines, but the entirety of the MPD use-of-force policy framework.  As presented by Schlieter, these three bulleted factors were the only factors a reasonable officer should consider in determining use-of-force.

In fact, of course, these three factors are merely three important considerations within the broader totality of the circumstances. Arguably, an infinite number of additional factors could reasonably play a part in use-of-force decision making.

Again, this act of deception by Schleiter was doomed to fail the moment Nelson got ahold of Stiger on cross-examination—and it did fail. We’ll cover that in more detail in a moment.

Schleiter pulled out another trick when he attempted to diminish the value to the defense of the presence of the angry mob threatening imminent violence at the scene.  Specifically, Schleiter likes to suggest that a mob isn’t threatening or something to be concerned about unless they are actually throwing rocks or bottles, or actively attacking the officers.

So Schleiter will ask his witness, did you see the crowd throwing rocks or bottles or attacking the officers? And ,of course, the witness answers no, because the mob wasn’t doing that.

But is that the only conduct by a mob that can lead a reasonable officer to perceive a substantive threat of physical danger, to himself, his partners, EMS, even the suspect for whom the officer has a duty of care (to the extent mob attack interferes with that care)?  Of course not.

Just as was the case with the bullet points falsely presented by Schlieter as representing the totality of factors an officer must consider, similarly throwing rocks and bottles and actively attacking do not constitute the totality of ways a mob can be threatening.

If you’re thinking Nelson had fun with that line of questioning on cross, you would be correct. More on that, again, in a moment.

In fact, we’ll do it right now.

For future reference and viewing pleasure, here’s the video of today’s direct questioning of Stiger by Prosecutor Schleiter:

Stiger Direct Questioning

Stiger Cross-Examination

The first shocker in all this was that despite the huge significance of this case, and the national profile it has seized, the state apparently managed to choose as a use-of-force expert witness someone who had never testified in any state or Federal court as a use-of-force expert witness.

I know you’re thinking I mistyped that, so I’ll repeat it:

Sergeant Jody Stiger, the state’s highly paid use-of-force expert witness retained to share his expertise with the jury in Minnesota v. Chauvin, one of the highest-profile police use-of-force prosecutions in American history, has never before testified as a use-of-force expert witness in any state or Federal court.

This. Was. His. First.

To say I just about fell out of my chair when I heard that would be an understatement.

It almost boggles the mind.  Can the state really have thought it a good idea, in a case of this magnitude with such stakes—literally, both Chauvin facing possible life in prison and urban centers all over the nation facing an explicit threat of widespread rioting, looting, and arson—to retain as their use-of-force expert witness someone who had never before testified as such in court.

Does that make any sense?

Why? Is it possible they literally could not find another use-of-force expert witness willing to provide the testimony they wanted? This was their last option for the narrative they wanted told to the jury?

I don’t know if that’s the case, and of course I couldn’t know.  If there’s an alternative explanation for how Sergeant Stiger got this of all cases to be his first outing as a use-of-force expert witness in court, however, I can’t imagine what it might be.

I will tell you this much, as someone who does expert legal consulting work myself, and that is that like any skill, you get better at it the more you do it.  I’m a vastly more capable legal consultant on use-of-force cases in 2021 than I was in 1996, because of my accumulated experience.  To put it another way, my first effort was nothing as capable as my most current effort.

And that lack of experience showed starkly in Sergeant Stiger’s first effort testifying in this case.  That’s not a knock on Sergeant Stiger, who came across as quite likeable, it’s simply a reflection of the reality that experience matters, and in the context of providing use-of-force expert testimony in court, Stiger came into this trial with literally zero experience.

Zero. Experience.  And it showed.

Nelson also touched on the fact that Stiger’s entire personal use-of-force experience was with the Los Angeles Police Department and the state of California, and not the use-of-force laws and policies of Minnesota.  When pressed on this, Stiger answered that police use-of-force policies were pretty much standardized across the entire country—but this reply would be contradicted in later cross-examination by none other that Sergeant Stiger himself, hwhoow offered or conceded to a variety of ways in which police use of force varied between jurisdictions.

Even more shocking to me, as someone who does expert consultancy and reports and such myself in my own work, Stiger’s preparation for his opinion, and his recollection of his own work product, was astonishingly sub-par.

In the context of the MPD training and policy materials he considered in coming to his opinion, for example, Nelson managed to disclose that the many videos embedded in MPD training slide decks were never considered by Stiger. Why not? Because Stiger had received PDFs of those slides, not the actual Powerpoint decks themselves, and so the videos could not be played.

I don’t even know what to say about that.

Folks, I charge a lot of money for my legal consulting work, and one of the reasons I do so is because when I take on a case I look at everything. Every. Thing. Nothing goes unconsidered. I can’t imagine looking at a subset of training materials and providing a purported expert opinion on the central issue in a trial that could see a man sentenced to 40 years in prison.

Shocking.

Another possible sign of Stiger’s lack of experience was the nature of the written report of his opinion that he’d delivered to his clients, as the work product of his $10,000 expert fee (later supplemented with a $3,000 court appearance fee).

Stiger’s total report of his expert analysis and opinion amounted to a total of 461 pages.

Impressive, right? Sounds like $10,000 worth of work product to me.

Except … of those 461 pages, fully 95% were appendices, mere attachments of the MPD training and policy materials that had been sent to Stiger by the prosecutors themselves.

Only 26 of the 461 pages were substantive analysis and opinion.

We’ve probably all heard the expression that all a consultant does is take your watch, glance at it, and tell you what time it is, and Stiger certainly got that part of the job right.

In another indication of Stiger’s poor grasp of the content on which he was supposed to be expert for purposes of his testimony in this trial, at one point Nelson began digging into the specific MPD use-of-force policies central to deciding if Chauvin’s conduct was reasonable, on the one hand, or worthy of a 40-year prison sentence, on the other.

As part of that discussion, Nelson focused on one particular policy, asking Stiger to confirm if that was policy number 5-303. In fact, that is one of the key MPD use-of-force policies in this case.

Stiger. Did. Not. Know.  He literally told Nelson, “I don’t know the exact number.”’

Again, I just about fell out of my chair.  It’s not like Stiger was having a casual conversation about MPD use-of-force policy at a dinner party. He’s accepted $10,000 to write a 26-page report on precisely these policies, and another $3,000 to show up in court and testify about them, in case with a multi-decade prison sentence and widespread rioting on the line—and he couldn’t remember the number of the key policy in that analysis.

Next Nelson switched over to asking Stiger about the US Supreme Court case of Graham v. Connor, one of the seminal USSC cases on police use of force.  By the way, if you’ve never read it, you should, and you can find it hereGraham v. Connor, 490 U.S. 386 (US Supreme Court 1989)

When Stiger had been pressed about variances in use-of-force law across jurisdictions, he’d pushed back by claiming that they were all basically the same, because they were all based on the legal standard of Graham v. Connor.  Well, that’s true, on a macro sense, but it’s far from true on a micro sense, and in use-of-force law, folks, the details matter. A lot.

Nelson began this discussion of Graham by first using it to gut Prosecutor Schleiter’s earlier claim that the three highlighted bullet points in the MPD use-of-force policy—severity of crime, threat of suspect, resistance of suspect—were the only factors to consider.  He did so by first having Stiger confirm that MPD policy was thoroughly based on Graham v. Connor, something Stiger could hardly deny both because MPD policy explicitly cited Graham and Stiger himself had just claimed that all law enforcement use-of-force everywhere was based on Graham.

Then Nelson dug into Graham. Isn’t it true that Graham is not limited to three bullet points of consideration in deciding if a use of force by police is reasonable?  Well, yes, answered Stiger.

Isn’t it true, Nelson asked, that Graham itself says that the test of reasonableness under the 4th Amendment is not subject to exact definition, but requires careful attention to the facts and circumstances of each case, essentially quoting directly from Graham. That’s correct, answered Stiger.

And isn’t that because an officer’s use-of-force decision may well include those three bullet points highlighted by Schleiter, but it certainly is not limited to them? Again, the state’s own highly-paid use-of-force expert was obliged to agree.

In fact, asked Nelson, here again essentially quoting Graham, isn’t it true that the calculus of reasonableness must allow consideration of many factors and that officers are often forced to make split-second judgments in circumstances that are rapidly evolving.  Right again, agreed Stiger.

In fact, the officer needs to consider the totality of the circumstances.  Yes, answered Stiger.  The subject’s actions. Yes. Before, during and after the use of force. Yes. Everything the officer knew at the time. Yes, again.

There are many layers to use-of-force decision making, including general training, the general surroundings of the event, the specific surroundings of the event, the type of force used, how long, the officer’s perceptions and actions, the suspect’s actions, officer training, personal experience, tactical advantages and disadvantages.  Yes to all that, agreed Stiger.

Also, scene security, suggested Nelson, the safety and security of the officer, his partners, the public generally. Again, yes.

At this point it really began to feel like Stiger had been retained as a defense expert witness on use-of-force, rather than retained by the prosecutors who had actually paid him.

But it got worse for the prosecution.

Nelson asked if it wasn’t true that there were certain situations that by their very nature created an exceptionally heightened concern on the part of responding officers.  Like a domestic.

Or like a robbery, or a shooting, Stiger helpfully suggested.

Sure, answered Nelson. So, sometimes an officer might have to be prepared for an increased risk.

I wouldn’t agree with that, said Stiger.

Oh? Explain

An officer should be prepared for the highest level of risk in every encounter.

So, every time an officer responds, there’s an inherent risk, it’s the nature of policing, and a reasonable officer has to be prepared for the risk level to change?

Stiger: Correct.

It’s hard to imagine more helpful testimony for the defense.

Nelson also again hit the point that MPD use-of-force policy was not a simple, binary framework, if A then B, if X then Y, as Schleiter suggested to the jury, but that in fact every single facet of that policy had qualifications.  If time allows, as safety permits, and so forth.  Again, Stiger was obliged to agree.

Nelson: Police don’t look at force in a vacuum, do they?  Stiger: We should not. I look to the totality of the circumstances.

Among those circumstances, Nelson suggested, was what the officer knew going into the call important, correct?  Correct, answered Stiger.

Do you agree that in this case, Chauvin was responding to a priority 1 call, backing up other officers (both of whom were brand new rookies, incidentally), code 3, lights and sirens, to deal with a suspect who was as much as 6 ½ feet tall and believed to be under the influence?

Correct.

Reasonable for the officer to rely on that information, as it sets the stage, the inherent risk of responding to that call?

Stiger: Yes.

Is the fact of Floyd’s size of particular concern, asked Nelson?

I wouldn’t say so, said Stiger.

Oh? Explain.

Well, Stiger answered, I’ve seen even small suspects be even more dangerous than large ones.

Holy. Cow. In other words, it’s not a case where an officer should not infer greater risk from a large suspect, it’s a case where an officer should infer that same risk from even small suspects.

Nelson then asked Stiger about the extent to which the information in the 911 call should have informed Chauvin’s decision-making. To this, Stiger responded that he had never heard the 911 call.

You read that right:  the state’s highly paid use-of-force expert witness had never bothered listening to the 911 call that set this entire police response in motion, and which was the foundational information the officers brought with them in responding to the scene.

I. Can’t. Even

But then Nelson scored huge when he dug into the specific knowledge that Chauvin brought with him to the scene, and in particular what level of force that knowledge would have privileged Chauvin to use against Floyd.

Chauvin had heard a priority 1 call, knew force was being used, heard scuffling over the radio, knew other officers were engaged in a fight, was called as backup to support them, knew the suspect was possible impaired, and 6 ½ feet tall, and when he arrived he saw Floyd and twow officers at the back of the squad car, with the Floyd actively resisting their lawful efforts to place him in the squid car. Agreed?

Agreed, said Stiger.

Under your analysis of the MPD use-of-force continuum and policies, is it true that Chauvin would have been privileged to simply draw his Taser and use it on Floyd, to stop Floyd’s active resistance.

Yes, answered Stiger.

Nelson: But he didn’t do that.

Stiger: No, he did not.

Lesson for the jury: Chauvin not only didn’t use excessive force throughout his encounter with Floyd, he didn’t even use as much force as MPD policy allowed for.  Instead, he used less force.

Naturally, the prosecution will make the legitimate point that just because Chauvin declined to use maximum permitted force upon arrival at the scene doesn’t necessarily mean he didn’t use excessive force later on, when circumstances had changed, but this was compelling cross of the state’s witness by any reasonable measure.

Then we had another incident in which Stiger seemed woefully poorly informed about his own $10,000 26-page report.  Nelson asked if Stiger himself had not concluded in his report that the efforts of Lane and Keung to compel Floyd’s arrest had, because of Floyd’s active resistance, ended when they realized the “futility of their efforts.”

Stiger objected that he didn’t remember using those words in his report.

Would referring to your report refresh your recollection? Hands over the report. Stiger looks at it read, nods.

Oh, yeah, I did say “futility of their efforts.”

Folks, again, it’s not like Stiger didn’t know he was going to be testifying about his report today, nor that his report was, let’s face it, all that lengthy.  I just don’t understand how he could be so poorly prepared.

Then Nelson dove into Stiger’s personal experience in making arrests of suspects. Isn’t it true that sometimes suspects lie in an effort to avoid arrest? Yes. They’ll bargain? Yes. They’ll make up complaints of distress? Yes. Should an officer consider not just the words, but also the actions, to see if those are consistent with the words?  Yes.

When Floyd began saying that he couldn’t breath, wasn’t he at that moment violently fighting with the officers to prevent them from putting him in the squad car?  Yes.  Isn’t that conduct inconsistent with not being able to breath? Yes.

Lesson: the officers had good reason to believe that Floyd’s claims of difficulty breathing were a fabricated claim of medical distress.

Diving into Stiger’s personal experience on this issue, Nelson asked him if while making an arrest Stiger had ever had a suspect feign a physical ailment. Yes. Fake a heart attack. Yes. An officer has to consider if those claims are lies? Yes.

About Floyd’s denial of drug use during the arrest, Nelson asked if Stiger had observed white around Floyd’s mouth and whether that was consistent with someone using controlled substances? Yes. Common for users to deny use? Yes. Officers need to take that into account? Yes.

To counter the prosecution’s suggestions to the jury that Chauvin’s use-of-force could no longer be justified once Floyd was handcuffed and prone, Nelson asked Stiger if a suspect in handcuffs can still be a threat?  Yes, answered Stiger. They can bite, kick, run. Yes.

They can get the officer’s weapon? Yes. Even if handcuffed. Yes.

The notion that a handcuffed suspect is no longer a threat is not correct, a handcuffed suspect can continue to present a risk? Yes, answered Stiger.

Then Nelson scored what many may perceive to be an important point, albeit I’m rather ambivalent about this one.  Nelson played a short piece of video in which Floyd is prone on the street, and speaking in his muttering fashion.

What’s Floyd saying there, asked Nelson? Is he saying “I ate too many drugs”?  Stiger answers he can’t tell.

No worries, Nelson is happy to play it again for Stiger. And the jury.

Stiger is still unsure if that’s what Floyd was saying, and Nelson lets it go—but the jury has heard the suggestion.

Later in the day, with a different witness, BCA Special Agent Reyerson, whose testimony I won’t spend much time on because it was so boring, Nelson would play the same video, and ask the same question.  This time, the witness will agree—yes, Reyerson answers, it sounds like “I ate too many drugs” to me.

Ka. Boom.

So damaging was this Reyerson testimony for the state that they actually re-called Reyerson as a witness for the sole reason of having him listen again, and give a different answer.  Oh, now, says Reyerson the second, now it sounds like “I didn’t take no drugs.”

Well, OK. As I said, I’m ambivalent about Floyd’s statement on the merits, because I sure can’t understand what he’s actually saying. Although it must be said Nelson’s version will certainly appear reasonable to a jury that’s been exposed to the toxicology report on Floyd.

But in terms of legal strategy by the defense, this was brilliant. Not only did Nelson plant that seed in the jury’s mind that Floyd had eaten too many drugs and knew it, he got to play the audio for Stiger not once, but twice.

And then again a third time, for Reyerson.

And then the state itself played it for the jury a fourth time!

Amazing.

The nNelson turned to gutting the prosecution’s suggestions that Chauvin’s conduct was criminal because he’d failed to de-escalate as required by MPD policy.

Isn’t it true that the officers initially considered hobbling Floyd when he kicked at them? Yes, answered Stiger.  Did they? No.  So they changed their mind? Yes. And hobbling would have been an escalation of force by the officers? Yes.

When an officer is considering using a higher degree of force, but then changes his mind and does not escalate, is that a form of de-escalation?  Yes, answered Stiger.

So not only did Chauvin use less force than MPD policy allows when he arrived on scene, he was still de-escalating his use of force when Floyd was proned on the street.

You’ll recall that Nelson had previously asked MPD Use-of-Force trainer Lieutenant Mercil if there could be circumstances in which it was appropriate to forcibly restrain a suspect until EMS arrived, and Mercil had responded, that yes there were, and in fact he had done exactly that himself in his own career as a street cop.

Now Nelson asked Stiger if it would be appropriate for an officer holding a suspect in custody, and knowing that the suspect was in medical distress and required advanced medical care, to maintain restraint of that suspect until EMS arrived to ensure he received that care when EMS arrived. Yes, answered Stiger, that would be a reasonable use of force.

Then, after a short morning break, Nelson switched targets to the prosecution’s continued suggestions that the crowd observing Floyd’s arrest should have played no role in the officers’ perception of risk, their use-of-force decision-making, or their ability to provide appropriate care to the suspect in their custody.

Nelson turned to MPD training materials on dealing with crowds, confirmed that Stiger was familiar with those materials, and began to step through them.

Crowds are dynamic, according to MPD training? Yes.  Can contain elements of different people, per training? Yes. Nonviolent crowds can quickly become violent? Yes.

Even 10-12 people, the dynamic can suddenly change? Yes. An officer needs to be sensitive to the potential risk even of a crowd that in the moment is peaceful? Yes. Engaging with the crowd can distract the officer? Yes.

Things a crowd says to the officer can itself create a perception of risk?

Stiger responds that words alone cannot justify a use of force (and this is correct).

But words said in a particular tone can heighten a reasonable officer’s perception of risk?

Risk,  yes, says Stiger.

MPD trains officers to consider the potential signs of aggression? Yes. Like raised voices, tensing muscles, exaggerated gestures, pacing? Yes.

What if someone tells the officer they’d like to slap the f*** out of you, that could be perceived as a threat? Yes, answers Stiger.

Of course, some of the crowd, particular state witness Williams, were explicitly shouting such threats at the officers, as demonstrated in the collected videos of the event.

Nelson asked if an officer placing a knee on the base of the neck across the shoulder blades was an appropriate use-of-force technique in the correct circumstances. Yes, answered Stiger.

In fact, you were trained that way, asked Nelson? Yes.

Nelson asked if the MPD training materials reviewed by Stiger suggested that officers should take particular care providing CPR, if doing so required removing handcuffs (as it would), because the training informed officers that the suspect may come to and be agitated and ready to fight? MPD training does teach that, Stiger answered.

In fact, you have had that same training yourself? Yes.

A suspect was passed out, came to, and fought you more, you’ve had that personal experience as police officer? Yes, answered Stiger.

I feel obliged to remind readers at this point that Stiger is the highly-paid use-of-force expert hired by the PROSECUTORS to assist them in CONVICTING Chauvin. He is NOT a defense witness. Though you’d be hard press to know that, based on his testimony on cross-examination.

Then for the first time in my recollection Nelson touched on the fact that the medical examiner found no damage to Floyd’s neck whatever. Wouldn’t you expect damage if the weight place on the neck was substantial.  Stiger prudently declined to offer an opinion.

And then Nelson used a little trick we’ve seen him use with other witnesses.  That’s fine, he said, I get it. Better for us to ask a doctor that, right? Right, agreed Stiger.

Anybody doubt Nelson has a doctor lined up to say exactly that, and that the jury will perceive that even the state’s own use-of-force expert witness believes that the doctor’s opinion is more credible than the state’s expert?

Well, folks, this is getting really long, and I want to get it out to all of you sometime tonight, so I’m going to end my coverage of Stiger on cross right there.

I do encourage you to watch the video of that cross-examination, here:

Stiger Cross-Examination

There was also re-direct and re-cross of Stiger, and that can viewed below, but the prosecution did little to diminish the points scored by the defense in its cross-examination of the state’s highly-paid use-of-force expert witness.

Stiger Re-Direct

Stiger Re-Cross

Other State’s Witnesses

There were other state’s witnesses today after Stiger, but frankly they were pretty much mind-numbingly boring, so I won’t cover them in depth here, except in summary form.  The other witnesses included BCA Special Agent Reyerson, the BCA case lead on the Floyd case, BCA Forensic Agent Mackenzie Anderson, who processed the crime scene and vehicles including the Floyd DNA of the blood and recovered drugs (defense did not bother to even cross-examine Anderson), BCA Forensic Scientist Breahna Giles, who did chemical analysis of the recovered drugs finding fentanyl, and Susan Mieth a private industry chemist who did chemical analysis of the recovered drugs finding fentanyl and methamphetamine (the defense did not bother to even cross-examine Meith).

I present their video testimony for your viewing pleasure alone—it should be particularly helpful if you have insomnia.

Reyerson Direct Questioning

Reyerson Cross Examination

Reyerson Re-Direct

Reyerson Re-Cross

Reyerson Re-Re-Direct (re-called by state)

Reyerson Re-Re-Cross

Anderson Direct Questioning

Giles Direct Questioning

Giles Cross-Examination

Mieth 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.

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.

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

 

 

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Comments


 
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fogflyer | April 7, 2021 at 10:32 pm

I am still catching up on the trial, but did these BCA clowns really miss drugs in BOTH cars!?!?

Gives me a lot of faith in this rest of their investigation.


     
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    stacytracy in reply to fogflyer. | April 8, 2021 at 12:03 am

    The story was something along the lines that the crime scene investigator was directed to collect specific items and drugs were not on the list. The drugs ( or some of them) can be seen in the initial photographs taken in the first search. It was not until defense attys noticed the drugs while inspecting the vehicles months later, that the scene was re processed for the purpose of collecting drug evidence.

    In The List, about the so-called Atlanta child murders, Chet Dettlinger (a racial liberal, but this was over 30 years ago) said that a pre-affirmative action police department would come up with twice as much evidence from a crime scene than an affirmative action PD.


     
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    Trajan Fanzine in reply to fogflyer. | April 8, 2021 at 1:54 pm

    “This. Was. His. First.

    To say I just about fell out of my chair when I heard that would be an understatement.”

    But hes black and, stayed at a Holiday Inn…

@Andrew ,
Link needs to be fixed at
“FREE COPY Law of Self Defense: Principles Book”


 
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OldProf2 | April 7, 2021 at 10:51 pm

I did scientific expert witness work for a number of years, and I look back at the first time as being rather amateurish. But I never got much cross-examination, because I never shaded my results, and I always had hard copies of the evidence that any other scientist could look at and come to the same conclusion. My attitude was that the attorney shouldn’t ask the question if he couldn’t stand the truth.

When my results didn’t favor the narrative of the attorney I was working with, he simply didn’t put me on the stand.


     
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    stl in reply to OldProf2. | April 8, 2021 at 10:04 am

    Maybe this explains why they couldn’t find one or maybe because of racial considerations. Are there any other non-white “experts” being questioned?


 
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moonmoth | April 7, 2021 at 10:55 pm

On YouTube, “disaffected liberal” Tim Pool spoke very favorably and at length about the analysis that you posted yesterday: “MASSIVE Backfire Against Prosecutor May Have Just Gotten Derek Chauvin Acquitted In Floyd Trial” https://www.youtube.com/watch?v=g0Toq4uoK0I

    I’m a big fan of Tim’s….especially since he’s become a supporter of the 2nd Amendment.


     
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    stl in reply to moonmoth. | April 8, 2021 at 10:54 am

    Wow, I watched that episode and he can’t believe how the media is still schilling for the prosecution. I also hadn’t heard how small (compared to Floyd) that Chauvin is. In Oregon a decade ago, women officers were given greater leeway to use greater force “tools” then male officers, simply because of the difference in stature and strength. Take out the gender but still apply the same consideration to stature and strength and you still get a justification for greater force that Chauvin decided NOT to use.


 
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chrisboltssr | April 7, 2021 at 10:58 pm

Stiger seems like an affirmative action hire. Sorry, but it has to be said. Then again, I don’t think the state could have hired any kind of use of force expert witness who would not have been deftly turned into a defense witness by the defense.


     
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    healthguyfsu in reply to chrisboltssr. | April 7, 2021 at 11:39 pm

    Totally agree. I can’t imagine there are as many non-white or female experts on use of force. It’s one of those things that males gravitate towards in their studies, and there are more highly educated whites than blacks on these issues.

    It seems to me that the most important thing for the prosecution was getting a black man up there to testify as an “expert” just like trying to call cage dwarf an “expert”. This is a direct appeal to the black faces on the jury panel as an attempt to say…listen to those of your own race and no one else. It’s a pathetic little ploy, but would you really expect anything else from a Keith Ellison led attorney’s office?


     
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    Ira in reply to chrisboltssr. | April 8, 2021 at 12:08 am

    Stiger seems like an honest guy.


       
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      chrisboltssr in reply to Ira. | April 8, 2021 at 2:55 am

      Agreed, but he was way out of his depth on this issue. And that’s not his fault, but the prosecution’s. Whoever was assigned to vet and prep this guy in the prosecution should be fired.


       
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      Think38 in reply to Ira. | April 8, 2021 at 11:25 am

      His testimony comes off as sincere and believable. Being under prepared is on Stiger. Most of the answers to the key questions aren’t really Stiger’s fault, but rather, goes to what the current law provides and MPLS police policy directs. Unless the expert is a schill, there are no other answers to give.


     
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    JusticeDelivered in reply to chrisboltssr. | April 8, 2021 at 10:38 am

    I guess I should have read more of the thread, in that I just made a similar comment.

    I feel sorry for competent blacks, whose accomplishments are diminished by hordes of incompetents.


       
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      DaveGinOly in reply to JusticeDelivered. | April 8, 2021 at 1:22 pm

      In agreement with another post, there are probably fewer black experts on use-of-force than white experts. Due to the larger pool, white experts are more likely to have more experience in providing expert testimony. Selecting a black expert is more likely to get you an expert who is less experienced. I commented above on the possibility (as did chrisbotsrr, above) that Stiger was selected by the state because he was black. He may have been one of the few black experts who was available and willing to work on the case. The train that hit Stiger yesterday (not making him look foolish, but making him look like a defense witness) may have been seen coming by other experts (white and black) and they may have had the sense (due to their experience) to stay off the tracks.


 
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hrhdhd | April 7, 2021 at 11:14 pm

$10,000 for 26 pages is a better payout than Dr. Jill’s Ed.D. for her “executive position paper.”

How much material to review as a consultant isn’t all that trivial. You can’t just say “All of it,” because often there is so much material that the client simply can’t afford to have you do it. For instance, I consulted in a wrongful death case a couple of years ago and counsel handed me 10,000 pages of medical records. If I spent one minute per page, that would be 167 billable hours simply for the medical records review. And a good review takes more than 1 minute per *pertinent* page. In most of these cases, there is a summary of the medical records that is already prepared, and I can tell which parts will be of use without wading through a zillion pages of stuff I don’t really want to see. This is particularly true for criminal cases where judges limit remuneration to a few thousand dollars. One can criticize an expert for not recognizing what is and is not important,, and not requesting the appropriate records, but a blanket statement that one is obligated to review every scrap of paper in a case would be pushing the boundaries of practicality.


     
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    amwick in reply to billo. | April 8, 2021 at 7:12 am

    TY billo… that makes so much sense.. but.. as a consultant in a wrongful death case, would you have wanted to hear the 911 call, if that had happened??? It seems to me that Stiger would have started his own review with that… The whole incident (Chauvin’s part) being a race, that 911 call was the starting pistol.


 
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lurker9876 | April 7, 2021 at 11:16 pm

Looks like Minneapolis is an affirmative action hire.

Given the Democrats’ push to send “gifts” only to black farmers (e.g., stimulus checks, vaccines only to blacks), what kind of education and experience do they have?


 
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Morning Sunshine | April 7, 2021 at 11:16 pm

Perhaps the prosecutors are (secretly) hoping for a not-guilty verdict?

1) use poor “expert” witnesses to undermine case
2) if the jury still decides “guilty” – the accused can ask for a higher court to have a re-look at the case. The jurists get to go home and have nice safe lives. Eventually the accused gets declared not-guilty

OR they (those in charge) want to nation-wide riots that will come with a not-guilty verdict? I swear it looks like the idiots in charge WANT a race war, and so far the calm level-headed people have refused to give it to them. A large nation-wide riot over a not-guilty? might that tip the scales into a whole lot of people playing the role of the “rooftop Koreans?”

tin-foil? maybe, but seems like tin-foil the past year has gotten not so outlandish


     
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    kpom in reply to Morning Sunshine. | April 7, 2021 at 11:30 pm

    This is a theory being argued on Minneapolis Reddit – that the prosecutors are throwing the case, for whatever reason.

    OTOH, never argue conspiracy when you can plausibly argue incompetence.


       
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      DaveGinOly in reply to kpom. | April 8, 2021 at 1:26 pm

      That’s interesting because it’s an indication that people other than the readership here is paying attention to the case from non-MSM sources (i.e., they appear to be getting the truth).


     
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    Coll Doll in reply to Morning Sunshine. | April 8, 2021 at 1:50 am

    Good point. Are prosecutors incompetent or complicit?


       
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      TX-rifraph in reply to Coll Doll. | April 8, 2021 at 9:41 am

      These prosecutors are doing what they are paid to do perhaps even if not well. They may know this is a political stunt by the AG Ellison and this case is a loser. Their heart may not be in it and they are thinking about job interviews.

      Perhaps the overcharges were to get a plea deal to support the narrative. Now, the riots are waiting for the start flag and the prosecution knows it.

      Thank you Andrew for the excellent coverage. It could not be better.


 
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JustSayN2O | April 7, 2021 at 11:17 pm

Guess what?

After successful resuscitation from a drug overdose, a criminal can kill.

Therefore law enforcement MUST handcuff and restrain individuals being treated for an overdose at all times.

https://www.youtube.com/watch?v=8k4L97igDjY


     
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    Think38 in reply to JustSayN2O. | April 8, 2021 at 11:32 am

    That video is frightening to watch.

    Seems one of the relevant lines of questioning to ask a use of force expert about why they use force, and the consequences of getting it wrong. Such as the number of incidents in which an LA police officer is injured or killed by a subject.

    As a general commentary, my own belief is that police training should include videos like this. To show real life incidents that can go very wrong. The materials should be publicly available, and talked about by police and civic leaders.


       
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      GWB in reply to Think38. | April 8, 2021 at 7:48 pm

      Citizen “training” should include this sort of thing. That is, it should be shown to citizens so they more readily understand what they’re asking police officers to deal with in their jobs.

      It wouldn’t stop those who deal in anti-police rhetoric, but it would lessen their followings.


 
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JustSayN2O | April 7, 2021 at 11:19 pm

Handcuffed inmate fatally stabs Georgia deputy. Today. Contemporaneous like:

https://nypost.com/2021/04/07/handcuffed-inmate-fatally-stabs-georgia-deputy-with-knife-at-jail/

I’ve been cross-examined a couple of dozen times in administrative proceedings, and I’m just astonished at how poorly prepared the prosecution witnesses are.

Given the importance of this case, you’d think that the prosecution attorneys would have sat each of the prosecution witnesses down for a day or two of mock cross-examination designed to expose all the weaknesses in their testimony and prepare them for cross.

Given the wealth of resources available to the prosecution in this case, you’d think they would have brought in a good criminal defense attorney specifically to do the mock cross.


     
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    TX-rifraph in reply to kpom. | April 8, 2021 at 9:45 am

    If the AG is running the prosecution, I suspect they do not have the experience of the Hennepin County prosecutors in homicide trials. The AG has been arrogant from the start so the county may be in the “we will do what you ask and no more” mode. And, then the experienced county prosecutors watch the show like everybody else.


     
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    DaveGinOly in reply to kpom. | April 8, 2021 at 1:30 pm

    I think the weaknesses are in the facts. The prosecution must present them so as to support their objective. But when those same facts are subject to review by the defense, they are out of the prosecution’s control. I guess this is a natural consequences of not having a factual case against a defendant.


 
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Olinser | April 7, 2021 at 11:28 pm

There are literally only 2 reasons I can think of for putting somebody like Stiger on the stand:

1) They didn’t want to spend money on a better expert (unlikely given the sheer number of lawyers on the prosecutor’s side and their presumed access to state funding)

2) They knew he was bad and are intentionally throwing the case because they WANT the fallout from an acquittal.


 
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Notanymore | April 7, 2021 at 11:29 pm

STIEGERS kept saying after the Flyod was cuffed he should have been placed in a recovery position. Anything else was unreasonable. He kept repeating that. Yet in his report he himself said that handcuffed Flyod was a futility of their efforts.

Flyod was placed on the ground already cuffed. The witness option is shear garbage.

As a Corrections Officer I have placed many offender on the ground to obtain compliance. If that didn’t work I used every pound of my 300 pound self on the upper back. Don’t take long fo compliance to start. And once you start you can’t stop until the offender complies else he is a danger.


 
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JustSayN2O | April 7, 2021 at 11:29 pm

A week or so ago, someone asked me if the effects of an opioid and an amphetamine will ‘cancel each other out’? I didn’t have time to reply then.

Everyone knows a fentanyl overdose can kill. Well guess what? Acute amphetamine intoxication can also be deadly. Since their pharmacologic mechanisms inducing fatality are not in physiologic opposition, the abuse of one of these drugs does not somehow protect against mortality following the abuse of the other. Now everybody knows the answer.

https://legalinsurrection.com/2021/04/still-no-cause-of-death-released-for-brian-sicknick-in-latest-d-c-medical-examiner-findings/


     
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    healthguyfsu in reply to JustSayN2O. | April 8, 2021 at 12:00 am

    Agreed…amphetamines can increase respiration by acting as stimulants by bronchodilation, but the central respiratory drive (control of breathing in the brain) is likely more impaired by the fentanyl than counteracted by the meth. This is the key issue at hand because fentanyl induces central nervous system apnea (cessation of breathing).

    Although I’m guessing the original asker didn’t quite understand it in this way, what they are essentially asking is do fentanyl and meth act on the same cells in opposite ways. (And by extension, do they compete for the same receptors on the cells kjto either stimulate or block those receptors).

    The answer to that is no, they are not diametric opposites and lethal doses of both are not going to magically bring settle the abuser in to some state of “normal”.


 
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sumdood | April 7, 2021 at 11:35 pm

Excellent summary and analysis as usual.

Something many may have missed in the boring testimony of the chemists. Pills recovered were from approximately .2-.3g and up to 1% by weight fentanyl. Which means each pill could contain up to 3mg of fentanyl.

The lethal dose of fentanyl is 2mg.

George Floyd is though to have ingested an unknown quantity of these pills, each containing a potentially lethal dose, by the states own admission.


 
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Burn_the_Witch | April 7, 2021 at 11:40 pm

I would love to know, but will never find out, how many Use of Force experts the state solicited and if Stiger was the one they had to settle for. Did all of their seasoned experts tell the prosecution that their testimony would be damning to their case, so they got the newbie from out of state?

The state of MN has put Stiger in an awful position, and he was too inexperienced to know better.


 
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A Thinker | April 7, 2021 at 11:42 pm

Whether or not not the state argues that GF didn’t say “I ate too many drugs”, I think that ended the trial for all intents and purposes. We have the one prior incident in which GF swallowed the drugs in the squad car, and OD’ed that supposedly will be admitted, and we have the girl friend telling the story that roughly one month earlier, GF took some of these pills, had the same symptoms, and asked to be taken to the hospital. The tox report shows Fentanyl and meth. The ME stated potentially fatal dose. I do not see how the court cannot say that this does not raise a reasonable doubt as to the cause of death, and I have no doubts that Nelson will tie these facts together.


 
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willie3169 | April 7, 2021 at 11:45 pm

I’m hearing that for the 2nd degree murder charge the prosecution does not have to prove Chauvin caused Floyd’s death but only his actions were a “substantial causal factor”. What does that mean exactly?


     
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    Rocinante123 in reply to willie3169. | April 8, 2021 at 12:32 am

    The struggle I’m having here is I acknowledge that Chauvin’s actions increased the risk of death. But then there’s the matter of the fentanyl. And I’m not sure how familiar you or others are with fentanyl, but that stuff is potent and extremely lethal. If you are on a high enough dose, you will literally forget how to breathe and must remind yourself. You can be having an active conversation one second and totally nod out even mid-sentence. People who are high and nodding out will have labored breathing and will be wheezing. Many people die from drowning in their bathtubs while high on fentanyl. If there were someone on a high dose of fentanyl nodding out in their bed, if they happened to roll over and their nose and mouth became even partially obstructed by a pillow or the mattress, they would likely die.

    So when we’re talking about something being a “substantial causal factor” when someone is on a very high dose of fentanyl, it does not take very much at all to push someone over. Virtually anything that even slightly impairs their breathing will kill them. Just look how many ODs and deaths there are. Almost all of those are accidental. Fentanyl is extremely lethal at higher doses.

    So how should we think about what is a “substantial causal factor” when you have something as deadly as fentanyl–and a very high dose, no less–in the picture. I really don’t know. It could be Chauvin’s actions indeed pushed him over the edge, but like I said, with fentanyl even rolling over in your bed the wrong way could kill you.

From the voir dire videos, I could intuitively tell that Nelson was a much better lawyer than Schleiter.

My only experience as a juror was when I was selected as an alternate juror in a three-day case many years ago. The prosecutor really connected with the jury with his conversational tone and wit. The public defender seemed bored and was just going through the motions.

When the jury began the deliberations, I and the other alternate juror were dismissed. As soon as I got back to the office, I got a call from the court telling me that the jury had reached a decision and I could come back the next morning to hear it. To no one’s surprise, the verdict was guilty on all counts.

We were told by the judge that since the case was over, we could, if we wanted to, speak to the prosecutor or public defender outside the courtroom. No one wanted to talk to the public defender. All 14 of us met with the prosecutor. He told us that there were details about the case he wasn’t permitted to mention. I asked him if it was safe if, say, during lunchtime, I drove past the scene of the crime. He told me it was a dangerous neighborhood.


 
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jackscott1 | April 7, 2021 at 11:58 pm

This trial is a farce. Seems to be politically motivated.

Everyday, the State brings forth their witnesses and Nelson guts them on cross.

Anybody know how much longer this trial will last?


     
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    amwick in reply to jackscott1. | April 8, 2021 at 7:26 am

    I think it is more of a tragedy.. in so many ways. Thank goodness Mr. Branca is here to comment.
    Really, that is huge. I see a train, and 10 miles down the track the bridge was just blown away.


 
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buck61 | April 7, 2021 at 11:59 pm

I knew our esteemed author covered a lot of ground today, but the testimony at the end of the day was damaging to the state and BCA in particular.
They glossed over the partically crushed box of pills on the drivers side door, the pills found in the console and on the backseat of the cruiser. The pills weren’t removed from the cruiser and tested until 2021.


 
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Colonel Travis | April 8, 2021 at 12:08 am

I don’t watch TV news, I don’t read newspapers, I trust so few to report what is accurately happening any more. Today I heard Andrew McCarthy on the Dennis Prager show say that he thinks there is a decent chance for Chauvin to be convicted. I heard, accidentally, that Bill O’Reilly thinks the trial is over and Chauvin will be found guilty. I didn’t hear him say that, I don’t even know if that is correct. Someone else thinks that too, I don’t remember who.

But I say this because I wonder what the heck is going on in this country? I haven’t watched every second of this trial but I’ve watched all the key highlights from here, and sometimes I can have it on and listen extensively. Is the state really doing well in this case so far? I don’t see how anyone with half a brain could think that.

Then again, if you have a original-OJ-case-like jury, does it matter which side made the more convincing argument?

We’ll soon find out.

    Most of your sources are simply echoing what they hear in the mainstream media.

    You won’t find many doing the actual work of watching the trial, and with the legal experience and expertise to know what it means. Bill O’Reilly can’t do that. Andrew McCarthy could do it, but he’s not sufficiently conscientious to make the required effort necessary for an informed opinion before he spouts off.

    So you’re kind of stuck with me. 🙂


       
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      Colonel Travis in reply to Andrew Branca. | April 8, 2021 at 12:44 am

      Andrew, you have earned my trust for what you do!

      As an aside, I just started Krav Maga training. The owner of the gym and I were talking and he said that with new students he recommends three books. One of them is The Law Of Self-Defense. I said – yes, Andrew Branca. His eyes lit up and he was thrilled I already knew about you.

      You are having an impact, thank you so much for what you do. If you ever come to Texas I’ll treat you to a hell of a BBQ dinner.


       
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      buck61 in reply to Andrew Branca. | April 8, 2021 at 12:45 am

      it’s also CYA tactics by them, they don’t want the firestorm and thought Chauvin would walk. If they were actually watching every day. Nelson is singlehandly destroying whatever the state throws at him and he hasn’t even started calling witnesses that would be considered friendly to Chauvin. If this keeps up the defense case will only need a few witnesses. I haven’t missed a minute of the actual trial and it isn’t even close at this point.
      It will all come down to the judges instructions and if the jury was actually paying attention to the information and not basing a decision based on emotions and being afraid not to convict.


         
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        DaveGinOly in reply to buck61. | April 8, 2021 at 1:54 pm

        With the damage Nelson is doing to the prosecution, I’m expecting a motion to dismiss when the prosecution rests. Everything the defense needs done (instilling reasonable doubt) will have already been done and the prosecution appears to be well on the way to proving none of its case. A double-whammy.


       
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      fogflyer in reply to Andrew Branca. | April 8, 2021 at 12:46 am

      Sounds good to me!
      Couldn’t ask for a better person to keep us educated and informed.
      Thank you so much for all the work you are putting into this!👍


       
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      jakebizlaw in reply to Andrew Branca. | April 8, 2021 at 1:02 am

      As a former prosecutor of police corruption in NYC40+ years ago, who gained a lot of sympathy for the job of especially patrol cops, I’ve found your summaries fascinating. Even the WSJ news coverage is focusing only on prosecution high points, few that they be, and missing what seems to be the real story. I have a lot of admiration for the thorough and painstaking work Nelson is doing with very little evident support. My sense is that this will end in a hung jury or a manslaughter conviction at most.


         
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        FOAF in reply to jakebizlaw. | April 8, 2021 at 3:00 am

        “Even the WSJ news coverage”

        While the WSJ editorial page is generally conservative, though it was very Trump-skeptical, their “news” coverage is appallingly slanted to the left. As bad or worse than the NYT believe it or not.


       
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      ekpyros in reply to Andrew Branca. | April 8, 2021 at 1:35 am

      Fantastic job!

      I did think one part of the state’s witness about the pills was important:

      She testified that the whole, intact pill was about 0.4 grams, and 1% fentanyl.

      That’s 4 mg fentanyl per pill—and a lethal dose is commonly said to be 2 mg.

      Floyd had clearly eaten some, chewed others, and had apparently taken other drugs via another route (per Hall).

      Hard to believe Nelson won’t come back to that math…

      Thanks!


         
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        Rocinante123 in reply to ekpyros. | April 8, 2021 at 1:52 am

        He’ll for sure come back to it. To the uninformed, 1% concentration seems tiny, maybe insignificant. But fentanyl is active in micrograms and for a 400mg pill, 4mg of fentanyl is a huge amount. I’m sure Nelson will pound this home.

        I think some people might not appreciate how potent and lethal fentanyl truly is. People on a high dose may routinely fall asleep mid-conversation, even mid-sentence. People nodding out will have labored breathing, will wheeze. Someone nodding out in their bed, if they roll over in the wrong way and their mouth and nose is even partially obstructed by a pillow or mattress or something, they’ll likely die. Even the slightest impairment in breathing of a fentanyl impaired person could easily kill them. It doesn’t take much at all.

        Without the fentanyl involved and Floyd dies, I think you’d probably have murder quite easily. But with the fentanyl involved, and knowing just how deadly fentanyl is, especially in those doses, and also now knowing that the knee may have been on the back more than the neck, yeah I think it’s the fentanyl that killed him. Even the slightest impairment of breathing could have pushed him over the edge, but the single substantial causal factor is the fentanyl. I don’t think the knee restraint can be proven to be a “substantial causal factor” in that sense since virtually anything could have killed him. If they used a taser on him instead (which the witness admitted would have been permissible) he would have likely also died.


           
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          Joe-dallas in reply to Rocinante123. | April 8, 2021 at 8:30 am

          further point on the 1% concentration of fentanyl

          Look at the ingredients on any medicine bottle – rarely is the concentration greater than 2-3%. Same with any herbicide or insecticide – almost always less that 2%. (raid or roundup)
          The gallon of Bleach at the grocery store is only 5%.


           
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          karl_lembke in reply to Rocinante123. | April 8, 2021 at 12:07 pm

          Some personal experience with Fentanyl:
          I had a bone marrow biopsy last year in preparation for a bone marrow transplant. This involves taking a large needle and driving it into the pelvis to suck out bone marrow. The drug cocktail they gave me controlled the pain extremely well, and there was about half a second when I was thinking of saying “ouch”. And then it was over.

          After the procedure, I went home. My caregiver was driving, because I had been told not to drive or make legal decisions for at least 24 hours after the procedure. (Illegal decisions were fine. I asked.)

          We stopped and got lunch to take home. When I got home, I ate lunch, and then went to bed where I slept until after dinner time. I woke up long enough to take my evening pills, and then went to bed.

          I don’t know if the Fentanyl was the sole contributor to that, but something in that drug cocktail knocked me out for a good chunk of the day. And this was administered under carefully controlled conditions in the hospital. I’m not inclined to attempt self-medication with the stuff.


     
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    stacytracy in reply to Colonel Travis. | April 8, 2021 at 5:52 am

    polar opposites….https://www.latimes.com/opinion/story/2021-04-07/derek-chauvin-trial-george-floyd-prosecution
    “The general consensus that the prosecution in the Derek Chauvin trial has had a very successful first week and a half is being countered by cautionary reminders of how difficult it is to convict a police officer of excessive force”

Great reporting, Andrew. Thank you.


     
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    willow in reply to Ira. | April 8, 2021 at 12:52 am

    Dear Andrew,

    I wanted to point out an error so that there is no confusion in your excellent summation. In the paragraph that begins with “Initially, according to the state witness MMA ‘expert'”… the error occurs in “Later the defense [should read prosecution]. I was going to send your piece to someone and didn’t want the person to focus on that.

    Thanks so much for guesting here again. I started following L.I. when you covered the Zimmerman trial.

      Anyone prepared to offer professional-level copy editing services for free is welcome to the job.

      I produce about 6,000 words a day of content and need it proof read in real time, at my convenience.

      Are you that copy editor?


         
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        amwick in reply to Andrew Branca. | April 8, 2021 at 7:33 am

        I think the rare typo makes your post all the more genuine.. It is a real time summary after all.


         
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        DaveGinOly in reply to Andrew Branca. | April 8, 2021 at 12:36 pm

        Andrew,
        I was about to point out the same thing. I believe Willow has already provided the free proofing your requested. But what good is any proofing if the error isn’t fixed? Maybe that’s your web master’s job, but someone should see to it. It is not an inconsequential mistake. (I have refrained from mentioning typos because they are inconsequential in most circumstances.)

        Please understand we point these things out because we appreciate what you’re doing and want to help make your presentation look as good, and be as accurate, as possible.


 
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thetaqjr | April 8, 2021 at 12:43 am

If Nelson, by insertion, administered the State enough Fleets, would Franks and Schleiter withdraw? Abandon the case?

I meant, “If we gave Franks and Schleiter enough Fleets, would the State abandon its case?”

Im not kidding> Im asking if the State did withdraw, what would ensue?

Is there a criminal trial hereabouts in which, during the process, without any big surprise except incompetent prosecutor, the State’s attorney advises, “Judge, we have made a bid mistake?”

Optimistic Chauvin will walk.

The trial is just a formality. Cities will burn regardless.

The point is to demonstrate that they have an endless supply of useful idiots to destroy police officers. Winning the trial is not required to accomplish that. If you are a cop, you are re-thinking your career or you are going to just let the bad guy go at every risky engagement.

That said, Glad you are on our side of the argument Branca.


 
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fogflyer | April 8, 2021 at 12:49 am

Do we have a witness list for the defense?
I know about the use of force guy, and of course the MPD medical trainer he is calling back, but do we know how many or who else will testify?


 
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willow | April 8, 2021 at 12:53 am

Dear Andrew,

I wanted to point out an error so that there is no confusion in your excellent summation. In the paragraph that begins with “Initially, according to the state witness MMA ‘expert'”… the error occurs in “Later the defense [should read prosecution]. I was going to send your piece to someone and didn’t want the person to focus on that.

Thanks so much for guesting here again. I started following L.I. when you covered the Zimmerman trial.


 
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ThePrimordialOrderedPair | April 8, 2021 at 1:10 am

and urban centers all over the nation facing an explicit threat of widespread rioting, looting, and arson

They only face that because absolutely NO enforcement of law has been applied to looters, arsonists, and actual insurrectionist mobs. Looters should be shot on sight. Looting is such an insidious crime – and is done when society is at an unusually vulnerable time – that to let people get away with this stuff without the harshest and swiftest of actions is to let society unravel. Of course, nothing was done to any of these mobs because they were aided and abetted by democrat politicians and police chiefs who called them forth and made clear that they could do as much damage as they wanted to and nothing would happen to them. The only people being rounded up were people like the McCloskeys, who were legitimately defending themselves against the mobs that should have been locked up (though the McCloskeys are lowlifes who supported the very treasonous politicians who unleashed the thugs on America).

    I think I came across wrong about the error. Sorry about that. I actually called into the Rita Cosby show a few days ago because I was following your commentary. I never called into a show before. I asked her if she had seen the defense’s cross examination showed an admission of the knee on Floyd’s shoulder. She lied and made up a resonse of the police chief that never occurred and went to the next caller.


 
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henrybowman | April 8, 2021 at 1:12 am

“When an officer is considering using a higher degree of force, but then changes his mind and does not escalate, is that a form of de-escalation? Yes, answered Stiger.”

Ugh. I’d expect this from a DC courtroom, not a Minnesota one.

“When the president is considering raising taxes, but then changes his mind and does not pursue it, you just got a tax cut, you lucky dog.”

Of course, in DC, this is true even if the president settles for only half the tax increase he actually wanted. Bingo, that’s another tax cut!


 
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Ann in L.A. | April 8, 2021 at 1:20 am

If you talk to defense lawyers about how hard it is to defend against the state, they will tell you about the utterly lopsided resources that the state can bring to bear. Often the defense has little money to pay for anything other than their own lawyer–the prosecution here has multiple lawyers tag-teaming, and Chauvin only has Nelson. The state, however, has teams of lawyers at hand and can pay for more, they have a medical examiner, a crime lab, can call in the FBI to consult, they have money to pay for experts, etc.

In prepping for this case, I’m sure Nelson was up against that reality and wondering how to defend within the limits of how much he could spend. So I’m sure he is very, very happy that the state has decided to level the playing field and pay for the defense experts themselves.


     
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    stacytracy in reply to Ann in L.A.. | April 8, 2021 at 3:19 am

    Fox News says USA today reports that “The defense attorney representing Derek Chauvin, the former Minneapolis police officer charged in George Floyd’s death, is receiving support from a police union’s $1 million legal defense fund, as well as a 12-person team of lawyers so far not seen inside the courtroom.” I am wondering if Nelson can communicate with other lawyers via the lap top during the trial? Can they send him suggestions in real time?


       
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      Midfiaudiophile in reply to stacytracy. | April 8, 2021 at 4:41 am

      I sincerely doubt it. The judge is very cognizant as to the possibly distorting effects of cameras on the jury in such a highly public trial, and as such his laptop is almost certainly certified to not have any ability to broadcast or receive data.

      It’s a possibility that this is a reason that he has the smaller laptop as well, so that he might be able to have a device that doesn’t have the ability to capture images but still coordinate with counsel for other officers in real-time, but I think there’s enough justification to have two screens (one screen to keep track of expected lines of testimony and possible gaffes and another to keep track of which of the thousands of exhibits that have and have not already been admitted) that there’s no reason to suspect any other justification.


 
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audax | April 8, 2021 at 1:32 am

No sound on the “Giles Cross-Examination” video.


 
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BillyHW | April 8, 2021 at 2:23 am

So the so-called urine spill was also just condensation from the car’s AC. Everything about this whole BS story is a lie.


     
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    Joe-dallas in reply to BillyHW. | April 8, 2021 at 8:22 am

    Unlikely any significant amounts of condensation from the AC – It was late May in MN, I did not go back and check temps, but high that was likely in the low 80’s


 
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Anacleto Mitraglia | April 8, 2021 at 3:06 am

Oh boy, this thing looks more and more like the trial in the movie Sleepers. I would check if by any chance the chief prosecutor and the defendant are of same age, and grew up in the same neighbourhood.


 
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stacytracy | April 8, 2021 at 3:48 am

I am bothered by the fact they did not immediately start CPR when there was no pulse.


 
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Midfiaudiophile | April 8, 2021 at 4:27 am

Mr. Branca,

What are your thoughts on that weird exchange between Frank and Reyerson about “Seals were broken by request of defense, at which point drugs found” with regard to the vehicles?

Was Frank trying to imply something untoward with regard to the defense team? Obviously Nelson followed back up on that, and Reyerson denied that that had been his intention, but I wonder if it did damage to credibility in the minds of the jury.


 
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lionbush | April 8, 2021 at 4:57 am

Excellent summary again. i do like the way that Nelson builds up to his point by asking easy to agree questions to the witness to get them into an agreeable state before launching the killer question. By the time the witness realises where they are it is too late as they have essentially agreed with the point in previous questions. This is why you have seen some (police Chief) squirm with answers at points.

Whilst the later testimony was eyewateringly dull, there were some crucial aspects that when you piece them together begin to formulate and solidify the defence position. Nelson can’t do that yet in cross examination but will do when he presents their case. Here is a summary:

Reyerson admitted that the case was presented to the court (think he said June?) whilst the investigation was ongoing. This isn’t unusual per se and I agree with that statement, but when you consider the following points it raises the possibility that the case was rushed due to pressure and crucial parts of evidence were not considered when it was presented.

Anderson processed the cars on the 27th May 2020 two days after the event as per normal practice. She was asked to look at certain aspects, for example blood. She discounted the pills in Floyds car as insignificant. She never saw the pill in the Police car either. It was only December/January this was then processed on request by Reyerson due to the defence team noticing in pictures the presence of pills. Refer the the paragraph previous as to why this becomes important.

The pills were then tested in a lab and were found to have both meth and fentanyl present. I am pretty sure that it was alluded to that these were not legitimate pills? Regardless, the pills had the drugs in them listed in the coroner report. Also, and really important. The pill in the police car was tested for saliva as the surface of the pill indicated it was possibly in someone’s mouth. The test for saliva showed positive. A DNA test was then run which linked the saliva to Floyd. The pill in the police car was in Floyds mouth at the time of the arrest and struggle.

I suspect that is why Nelson did not cross examine the witnesses. The case was made for him without him uttering a word. Key evidence that backed up the coroner toxicology report was missed during forensic examination which showed the pills in the car contained those very substances AND one of those pills was in Floyds mouth at the time of the arrest. What more could he add?

Tuesday was a bad day. To me, in a lot of subtle ways, this was even worse.


 
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Flatworm | April 8, 2021 at 5:33 am

The strongest point the prosecution has is that Chauvin should have turned Floyd on his side once handcuffed. It’s in the manual, it has a plausible connection to Cause of Death, and Lane’s suggesting it can be used to defeat the distraction argument. They should push this and forget all this nonsense about the crowd not being threatening, they were. Or that the knee restraint wasn’t taught – it was. That stuff doesn’t just kill their credibility, it hides their strongest points in a shell game of bogus arguments.


 
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Eggshell Skull | April 8, 2021 at 5:34 am

Again, the less The State assertion that it was ‘knee on the neck’ that killed GF appears viaable, the more they are going to push ‘positional asphyxia’ and a dilution of it being DC, and it being Kueng.

He was the one over the lung area. DC didn’t tell him to do anything that I heard.

Nelson doesn’t seem to be going there, he doesn’t need to.


 
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smalltownoklahoman | April 8, 2021 at 5:42 am

Okay, make that two very bad, no good, awful, devastating days of testimony in a row for the state! If the state wants any chance at all of winning this they better be amazing on cross when it comes time for Nelson to present his witnesses!

This case is reminiscent of the George Zimmerman show trial, in which the defense team of Mark O’Mara and Don West kept converting prosecution witnesses into defense witnesses. However, that does not mean that Officer Chauvin will be acquitted, as George Zimmerman was. The “Thirteenth Juror” plays a bigger role here, because black Nazis have already burned down Minneapolis (even though they likely will again, no matter how this jury finds), and in the intervening eight years, the black juror nullification movement has gained considerable strength, both in hanging juries in trials of guilty-as-hell black killers, and in railroading innocent Whites.


     
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    luckystars in reply to nicholasnicholayevitch. | April 8, 2021 at 8:25 am

    You forgot about the OJay trial of jury nullification and blaming it all on a white cop.


     
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    DaveGinOly in reply to nicholasnicholayevitch. | April 8, 2021 at 2:11 pm

    Railroading innocent defendants is not jury nullification. Nullification only works to nullify the law’s attempt to convict. If a jury convicts someone, that’s not nullification, that’s agreement with, or acquiescence to, the state’s assertion that a person is guilty of a crime.


     
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    oliver shank in reply to nicholasnicholayevitch. | April 9, 2021 at 12:07 pm

    Watched the Zimmerman trial without benefit of the estimable Branco. It was horrifying, and that experience showed that our media was so bent that they were willing to destroy someone in order to forward some arcane narrative.


 
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AL Tru | April 8, 2021 at 6:53 am

Chauvin and Floyd worked at the same nightclub.
Floyd tried passing off a phony $20 bill

” CBP officers seize $900K worth of counterfeit U.S. currency
Release Date: January 25, 2020
INTERNATIONAL FALLS, Minn. ― U.S. Customs and Border Protection (CBP) officers at the International Falls Port of Entry seized $900,000 in counterfeit United States currency Friday that was discovered in a commercial rail shipment originating from China.
counterfeit currency
CBP officers in Minnesota seized $900,000
in fake U.S. currency Friday.
“CBP officers strive every day to protect the United States from a variety of threats,” said Jason Schmelz, Pembina Area Port Director. “Those threats don’t always come in the form of terrorists or narcotics, but also in the form of counterfeit currency and other goods that have the potential to harm the economy of the United States. Thanks to the dedication of our officers and our partnership with the Secret Service, we were able to keep this currency from entering into circulation.”
Due to the vigilance of CBP officers, a rail container was referred for a Customs Exam Station inspection on Dec. 14, 2019.
During the examination, CBP discovered 45 cartons of possible counterfeit currency in the form of $1 bills with a total face value of $900,000. The United States Secret Service was contacted determined the currency is counterfeit.
The counterfeit currency was seized and will be turned over to the Secret Service.”


 
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Ironman | April 8, 2021 at 8:06 am

Reyerson saying he heard “I didn’t take no drugs.” also works for the defense. The double negative aside, it reinforces another point made by the defense that people lie to the police.


     
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    Elzorro in reply to Ironman. | April 8, 2021 at 8:45 am

    This prosecution is nonsense. First it is BLM…all police bad racist. Now as they lose the case it is changed to the new narrative. Look at all the police testifying against Chauvin. They now separate the police in to good, woke police, and bad unwoke police. Neck become ‘neck area.’ What will they come up with next in order to bitterly cling to their false narratives and Crump/Sharpton et al happily cling to their ill gotten 27 million. Stay tuned for the Super Quack Dr. Baden. All the same perps all the time.


 
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AL Tru | April 8, 2021 at 8:13 am

Thanks for deleting my Amnesty International paragraph.


 
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BassDoctor | April 8, 2021 at 8:13 am

Mr. Branca – This is just to thank you for your coverage and especially for your written analysis of what is going on in this case. It takes a lot of energy and thought to produce this kind of content, and I appreciate your well-honed skills and even more, the generosity of your own time to produce this. It is a fascinating read, cogent, and incredibly informative on so many levels. Thank you!


 
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luckystars | April 8, 2021 at 8:22 am

Did Stiger train Dorner?
“I love your bangs girl.”


 
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Rufus6540 | April 8, 2021 at 8:54 am

While I share the disbelief in the prosecution’s actions I really hope it’s also impressing the jurors as well. This seems more and more to be “not guilty” for all charges but you can never be sure with juries.


 
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Joe-dallas | April 8, 2021 at 9:30 am

completed 8 days of testimony with no ME testimony

Branca question – will the state have the ME start testimony Friday & intentionally time it so the cross doesnt begin until Monday so that jury has entire weekend to believe the death caused by chauvin?


 
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Joe-dallas | April 8, 2021 at 9:52 am

Branca question

Assuming hung jury – then retrial. Stiger is NOT brought in by state as expert.

Can defense enter Stiger’s report in as evidence since it is now public record?


 
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maxmillion | April 8, 2021 at 10:04 am

Props to the lone ranger Nelson.


 
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Ray Meiers | April 8, 2021 at 10:33 am

Nelson is so good at gently, essentially imperceptibly turning witnesses who are biased to be hostile to become agreeable.


 
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karl_lembke | April 8, 2021 at 11:19 am

Once again, the prosecution sought to present the jury with a narrative of events stripped of all context and circumstances—and I’ll say again I find this to be a terribly flawed legal strategy, because inevitably the defense gets to jump up and present the rest of the context. The result can only be a loss of credibility of the prosecution in the eyes of the jury.

I wonder if Prosecutor Schleiter does this with other cases he handles.

And you’d think after the first couple of witnesses are demolished in this fashion, he’d adopt a different strategy.

Maybe he’s been handed this fecal fondue and ordered to prosecute it, or else. So he trots out his witnesses and gets them to say what he’s been ordered to get them to say, and if the State loses its case, well, that’s beyond his control.


 
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civisamericanus | April 8, 2021 at 1:37 pm

“All those arguments were, of course, presented as if Floyd did not have a three-fold fatal level of fentanyl in his system, which effectively also kills via asphyxiation.”

My original perception was that, if the officers had a duty of care toward Floyd (as he was in their custody) and failed to carry it out, this would be manslaughter or criminally negligent homicide at worst, but not murder which requires an intent to cause unlawful death. This means Keith Ellison, who compared 9/11 to the Reichstag Fire, overcharged Chauvin,

If the fentanyl caused Floyd’s death, Ellison doesn’t even have a manslaughter case. Excessive force still looks open to question but, from what I have read here, there are two sides to that one as well and, if there are two credible sides, you have reasonable doubt.


 
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stevewhitemd | April 8, 2021 at 1:43 pm

A big thank you to Andrew once again.

I have testified in med-mal cases — a few dozen over 30 years as a university doctor. I will heartily agree with Andrew; I’m better at it now than I was at the beginning. Part of it is being more comfortable with the process of depositions and trial testimony, part of it is being more savvy about cross-examination, and part of it is understanding better what is expected of me.

As an expert, I have one job (I say) — explain and organize facts. In preparation I’m explaining facts to the lawyer who hired me, in deposition I’m explaining facts to the opposing lawyer, and at trial I’m explaining facts to the jury and judge. When I testify at trial I’m always looking at the jury. I make eye contact, one juror at a time, on each question. And much as when I’m taking a board examination, for each question I’m asking myself on the fly, “what is the question behind THIS question? Why am I being asked this question?” Particularly on cross, it’s really important to understand where the opposing lawyer is going. Otherwise you are indeed saying “yes” to a dozen questions and thus are led to where you don’t want to be.

Andrew’s point about preparation is quite solid, but like an earlier commenter pointed out, in a typical med-mal case 98% of the documentation is irrelevant. I use my medical expertise to figure out which 2% I need to know, and I know that cold. I know my summary cold. I know the summaries of the other experts cold. I can cite page numbers, dates, times, drug doses, and so on. It’s part of the prep (and let me say up front I’m not the best med-mal expert by a LONG shot).

I’ll also point out that each good lawyer I’ve worked it as is prepared as I am about the facts, the narrative, and the foundation of the case. Many of these med-mal lawyers understand the medicine parts darned well. They will not let me appear in deposition and trial without being satisfied that I’m completely prepared. Could they be surprised, could I flub something? You bet I could (and have). But the good lawyers on each side are prepared, always.

So reading about how Mr. Stiger was an inexperienced expert, how he wasn’t prepared, and how the prosecutors didn’t ensure he was properly prepared is just mind-boggling. Mr. Stiger didn’t know the material and he sure didn’t know where Mr. Nelson was going with most of his questions. I suppose this trial is a good learning experience for him, but wow, the pain.


 
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Dathurtz | April 8, 2021 at 3:14 pm

It is uncanny how Andrew’s description of Stiger’s level of preparation are seen in SOOO many of the people who are supposed to teach me the new educational standards/techniques/etc. They are all super unfamiliar with their material, the material of others, and any practical context in which their training might actually be used.

I think it is a function of leftism in general. The goal isn’t to be right or useful. The goal is to check boxes with no consideration of the substance behind any idea or action. Maybe I am just hammering a square peg into a round hole, but his description was familiar in so many ways I can’t help but compare it to my “trainings.”

People who value usefulness and substance have trouble adjusting to the idea that usefulness and substance aren’t the desired goals, and sometimes impede those goals. The goal is to check boxes. It doesn’t matter if you did a good job with anything. Checking the box makes it a good job. There is nothing beyond that.


 
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Clown 1396 XL | April 8, 2021 at 8:23 pm

If we were in a cafe, and Chauvin had just ordered one portion of Defense Counsel Nelson, and I was a defendant too, I just want to say that I would want what he’s having!


 
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scottythemenace | April 8, 2021 at 9:28 pm

What I’m amazed at while watching these court proceedings is what appears to be either the complete incompetence of the prosecutor or his complete failure of preparation. Multiple times, defense counsel refuted key prosecution “gotcha” moments using the exact same evidence presented by the prosecutor: e.g., the bystander restraining MMA guy and the page from the MPD use-of-force policy referencing Graham. It’s like he picks out only the stuff that “proves” his case hoping nobody will notice anything else. So many SMH moments. I guess this is what happens when you prosecute based on politics rather than evidence.

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