My appearance on the Tony Katz Show: Chauvin “made the right decision not to testify because I think these two prosecutors … would have essentially tortured him on the witness stand. I mean, it would have been brutal.”
About an hour after the close of the evidence on April 15, 2021, in the Derek Chauvin trial for the in-custody death of George Floyd, I appeared on the Tony Katz radio show with a quick reaction.
Quick hot takes aren’t always comprehensive, and this is no exception. But you have 10 minutes of my first thoughts (audio here, transcript below)
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Tony Katz (00:00):
I’m Tony Katz. So in addition to what’s going on in, in Brooklyn center, you have the trial for Derek Chauvin. This, of course George Floyd and that trial, well, that trial has wrapped and there are people who will tell you that the defense is doing just great. And then I’ve got people saying that the defense didn’t have a good day. I guess everything is in the eye of the holder. Tony Katz, Tony Katz today. It’s good to be with you. William Jacobson, Cornell law professor joins us right now, the mind behind legalinsurrection.com. And you know, it’s interesting different lawyers can see things in different ways. Of course you have had a team following this case all 14 days of it. So far, it ends with the defense resting today. Derek Chauvin not testifying asserting his Fifth Amendment rights. I’d like for you to give us a look at the prosecution and a look at the defense and how you would grade both.
Well, I think they actually both did pretty well. The prosecution had the advantage of a large team and enormous resources behind it, not just the regular prosecutors, but they had volunteer attorneys who were helping out from major law firms helping out behind the scenes. So I think one thing that came across very clearly is the disparity in resources. You basically had Nelson, the defense attorney, doing it alone. Now he did have some people behind the scenes helping him, but he had to examine all the witnesses. And I really do think the defense would have been better served if they had an attorney for the trial who focused specifically on the medical evidence. Because that’s where Nelson was the weakest, the defense attorney. So I think they were all very good. I thought the prosecutors were very good. I think that they were very good questioning and I think Chauvin made the right decision not to testify because I think these two prosecutors or who, whichever one of them would have asked the questions would have essentially tortured him on the witness stand. I mean, it would have been brutal. These are, these were very competent prosecutors. So I think they, they all did very well, but the disparity in resources I think came across pretty clearly,
Well, that’s going to rub some people the wrong way in that. Okay. This guy didn’t have money for defense. Did he get a proper, uh, defense? What was, as you see it, uh, the key case of the prosecution and what was the key case of the defense?
Right. Well, I do think he got a legally sufficient defense and he did have, I think his union is paying his legal fees, but you know, he didn’t have the whole team that the prosecutors did. The prosecutor’s best piece of evidence is that videotape, the nine minute videotape where even if you can justify, and I think you can, Floyd being taken to the ground, being put in a prone position at some point, I think even the prosecution’s use of force witnesses admitted that that was okay, but it’s the length of time. And the fact that Chauvin keeps the pressure on him. It’s not quite knee to the neck, like the media saying, but kept the pressure on him even after he visibly stopped breathing. I mean, for a minute or two, after that, uh, just, there’s just that length of time is brutal.
And I expect that that tape will be showed or at least part of it will be showed in the closing arguments, by the prosecution. That’s their best piece of evidence that if you just turned them on his side, or if you’d given him a little more breathing room, so to speak, you know, halfway through the nine minutes, he’d be alive. So that I think is a really tough thing for the defense to overcome. I think they can justify a lot of what was done, but it’s those extra three to four, three to five minutes that are going to be a real problem. The part of the point of view from the defense point of view, I think their strongest thing is essentially that Chauvin did nothing that in and of itself would have killed a normal, healthy person and that he couldn’t have known that there were all these drugs in the system, that he had a bad heart, all these other things.
So his use of force was objectively reasonable. Even if that reasonable use of force on this particular person resulted in heart failure. So I think that’s the defense point of view. And I think they scored a lot of points on the use of force experts that really, you’re getting down to this three to four minutes out of the nine minutes where it becomes questionable. And remember, in theory, the defense only needs to raise reasonable doubt as to the cause of death. The role that the knee on the back was, I think this notion that his knee was on the neck for nine minutes, I think that’s been completely debunked by the prosecution’s own witnesses. That for the most part, the knee was on the upper shoulder, across the back of the neck. It was not pushing on the blood supply to the brain for any considerable period of time.
They started the case by calling witnesses saying, this is the equivalent of a, I forget what they call it, a blood choke or something like that, where you cut off the carotid artery and you deprive the brain of oxygen and everything else shuts, but their own medical witness, the key, the key medical witness for the prosecution said, that’s not what caused the death. That there’s no evidence of that. There’s no physical evidence of it. And that’s not what happened. The prosecution theory is you’ve kept him in an position that made it difficult, if not impossible for him to breathe in and out. So if I were the defense, I would get up there and I say, here’s what they said in the opening statement. Here’s what they, you know, for first five days of trial, they had one theory which was cutting off the flow of blood and now they’ve switched and you don’t get to pick and choose. And if you’ve got, and if you’re tossing a coin here, that’s a reasonable doubt. So that’s what I would do. If I were the defense.
Talking to William Jacobson, Cornell law professor, the mind behind the legalinsurrection.com, you should check it out, be a part of the foundation, do the whole thing. Uh, I agree with you, being the outsider, looking in of course, Chauvin should not have, have testified. I can’t recommend anybody testifying in their own case when it comes to this prosecution. So some others has, I had a whole bunch of people that maybe the prosecution didn’t create enough of an opportunity of beyond a reasonable doubt. Maybe they gave some reasons to think that Chauvin had, has the case going in his favor. Will we see anything like that when it comes to what charge they find Derek shoving guilty of? Cause I agree that they will find him guilty of something. There’s a second degree murder charges, a third degree murder charge, and the manslaughter opportunity as you see it, which one is it going to be?
You know, if I had to bet, I’d say they’re going to convict him of manslaughter. I forget the specific wording of the statute, but it’s essentially, you know, if you, in a grossly negligent way, put somebody in a position that you know, death is reasonably foreseeable that you’re guilty, even if you didn’t intend it to happen. And I think that’s what it’s going to be. The second degree murder is not as many people are saying intentional, you know, nothing to do with intent. It’s basically a felony murder charge that you kill somebody unlawfully in the course of committing another crime. And I don’t know what that other crime would be here. You know, some sort of unlawful assault, but the defense use of force witnesses have already said that it was okay to take him to the ground and it was okay to put him in the prone position.
I think for that murder charge, you have to have a completely separate crime. So if you kill somebody while you’re holding up a bank, you know, in the course of holding up the bank, which is a crime, you end up murdering somebody that could be felony murder or something like that. So I don’t see a felony murder charge here, if it’s a reasonable jury. The third degree murder is really, it’s very similar actually to the manslaughter charge. It’s not an intentional killing of somebody, but it’s a higher degree if you will, of culpability a higher degree of knowledge and foresight. It used to be up until a few months ago that you could not convict someone of third degree murder if you, the grossly dangerous act was directed at one person.
So traditionally in Minnesota, third degree murder was essentially the equivalent of firing a gun into a crowd. It’s an inherently dangerous with a likely cause of death, but you just kind of fired into a crowd, not directed at one person. If you’re directing it at one person that would be a different sort of murder charge and they changed the law. Basically the Minnesota Supreme court said, yes, you can have third degree murder, even if directed at a single person. So that was originally thrown out by the trial judge and the appeals court reinstated it. So the judge was forced to reinstate it. So I think it’s probably the manslaughter. I mean, I think that probably is accurate if there’s a crime here that that is an accurate sort of negligent homicide, unlawful negligent homicide here, I would be surprised, you know, if he is found not guilty of all.
But you know, I think there is a basis where if a jury wanted to find reasonable doubt, they can find reasonable doubt here, but it’s not what I’m expecting. So this is unlike when we followed every day, many years ago, the George Zimmerman case for the killing of Trayvon Martin. And we did the same thing, live blogging it everyday extensive analysis. And when that thing went to the jury in the Trayvon Martin case, everything, there is no way a rational jury can find guilty here that the, the elements of a lawful self-defense are so clear and so overwhelming, that there’s no way we can, you can get a guilty verdict and it wasn’t here. I’m not feeling that way. I mean, here Chauvin has a problem, which is if he had just brought George Floyd to the ground, I think that’s justified. If he had just laid him out for a short period of time, I think that’s justified. If he had then turned him on his side so he could breathe easier, we wouldn’t be here today. I mean, so it’s that extra three to five minutes that I think is probably going to get him convicted.
Now I’m gonna take you out of the legal and put you in the political observer category. Is the city of Minneapolis ready for what happens when people hear guilty of manslaughter and think that’s not good enough?
Well, I don’t, I don’t know that the city of Minneapolis is ready for what’s going to hit. I don’t know if many cities are ready for, what’s going to hit because the media has committed malpractice here as have the activists. And frankly, as have the prosecutors, the concept that there was a knee to the neck for nine minutes has been disproven by the prosecutor’s own witnesses at the trial. The video tape does not actually show that, particularly when you view it from other angles. It’s a classic example. It may have been excessive use of force. He maybe shouldn’t have had pressure on his back and chest for that long, but the concept of the knee to the neck that we hear every single day over and over again is not factually correct. The prosecution’s own witnesses have acknowledged that and the cause of death by their expert witnesses is not the knee pressure to the neck.
It is the overall restraint of him in the prone position with weight on his back which made it impossible for him to inhale. That’s the cause of death. According to them, it’s not the cutting of blood to the neck. I don’t think the any municipality is ready because the general public and particularly the public who wants a conviction here is convinced of something that’s not true, that there was a knee to the neck for nine minutes. And I think that the media has played a part in this as they always do. And I think that anything short of conviction on all counts is going to erupt in rioting.
And on that, you’re more correct than anything else. William Jacobson, legalinsurrection.com. Be sure to check it out. I always appreciate you taking the time to be with us, sir. More to get to I’m Tony Katz.
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