Apr 19, 2021
Defense Closing Argument Transcript: Derek Chauvin Trial For Murder of George Floyd
Defense attorney Eric Nelson gave the closing argument during Derek Chauvin’s trial for the murder of George Floyd on April 19, 2021. Read the transcript of his speech here.
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Speaker 1: (00:00)
[inaudible 00:00:00] you may close for the defense.
Eric Nelson: (00:00)
May it please the Court, counsel, Mr. Chauvin, members of the jury. We want to take this opportunity first to thank each and every one of you for your service, your diligence, and your attention to this matter. We all recognize the disruption that jury service places on your personal and professional lives, especially in the case of this magnitude and direction. And so on behalf of Mr. Chauvin, I want to thank each and every one of you for your attention and service to this jury.
Eric Nelson: (00:42)
I’m going to apologize if I get a little long-winded because I get one bite at the apple here. The state has an opportunity to rebut my statement after this. There’s so very much we need to cover. There’s so very much we need to talk about, and it is all important. Before I begin my review of the evidence in this case, I would like to address two very crucial points of law, and they were touched on by the state, the presumption of innocence, and what proof beyond a reasonable doubt means. The presumption of innocence, the defendant is presumed innocent. That’s the starting point. He’s presumed innocent of these charges. And this presumption remains with him throughout the course of the trial, the presentation of the evidence, throughout the course of your deliberations until and unless the state has proved its case beyond a reasonable doubt. The defendant does not have to prove his innocence. We talked about this in jury selection. We talked about the starting point. The defendant doesn’t have to try to catch up. He starts at the presumption of innocence.
Eric Nelson: (02:10)
Proof beyond a reasonable doubt. Here’s the definition that the judge just read you, “Proof beyond a reasonable doubt is such proof as ordinary prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt that is based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.”
Eric Nelson: (02:42)
The law recognizes three standards of proof. The preponderance of the evidence is the first and lowest standard. Clear and convincing evidence is the next standard. And the third standard is proof beyond a reasonable doubt. And the way we lawyers sometimes illustrate what these three standards mean is through the scales of justice. The scales of justice equally balanced. When you apply the standard of the preponderance of the evidence, it’s also called the scintilla of the evidence, a single grain of sand tips the scales in the favor of one party or the other, and this burden of proof is used in many civil cases. Somebody at the state wants to take away your driver’s license, for an example. That is the burden of proof that the state has in that type of a case. They have to just ever so slightly convince the finder of fact that their evidence supports their action. The next standard is clear and convincing evidence. I mean, that’s pretty self-explanatory. It is clear evidence and it convinces you, the finder of fact, that the action is correct. This is the standard of proof that is used if the state wants to take away your children, clear and convincing evidence. It tips the scales more in one … The favor of one party over the other.
Eric Nelson: (04:37)
The highest standard in this country is proof beyond a reasonable doubt. Proof beyond a reasonable doubt. Essentially, what the state has to convince you is that the evidence in this case completely eliminates any reasonable doubt. Or in other words, leaving only unreasonable doubt. Capricious fanciful, capricious doubt. Capricious means unpredictable. Fanciful, space aliens flew in, inhabited the body of Derek Chauvin and caused this death. That’s fanciful. Beyond the reasonable doubt, it is the highest standard in the law. It doesn’t mean beyond all possibility of doubt, because I suppose space aliens may have been inhabiting his body, but that’s obviously fanciful and capricious.
Eric Nelson: (05:50)
These two standards, the presumption of innocence and proof beyond a reasonable doubt, work in concert with each other. You start with the proposition that Mr. Chauvin is innocent of these charges. The state has to advance substantial evidence to convince you that the only doubts that are remaining are unreasonable doubts.
Eric Nelson: (06:25)
As you analyze the evidence in this case, you would simply have to find that any defense that has been advanced is unreasonable. I mean, that’s what this standard is all about. I want to take this opportunity also to talk to you about the importance of reading the entire instruction, because I’ve seen, you know, and lawyers and I’m going to do it too. We pick and choose those things that help us make our case and help us argue our case. That’s our job as lawyers is to point out words and phrases within the instructions that make the difference in the case, and to take that evidence and present it to you in such a way that it supports our proposition. That’s what we do. That’s why you are instructed that if your memories of the evidence is different, that if you’re … The judge’s law is what applies. But take the time to carefully read the entire instructions.
Eric Nelson: (07:45)
Throughout the course of this trial, you’ve seen us do this. Little snippets, a second here, a second there, a screenshot here, a screenshot there. You need to review the entirety of the evidence in this case during the course of your deliberations as well. And I can tell you that some of the videos that we’ve seen, they’re much longer than what was presented in court. There’s additional information, and you’re going to see some of that as we go through this case today. So take the time and conduct an honest assessment of the facts of this case, compare it to the law as the judge instructs you, and the entirety of the law. That’s why the instructions tell you, consider the instructions as a whole.
Eric Nelson: (08:45)
I’ve told you that lawyers like to present evidence that favors them, but we have to be intellectually honest about the evidence. We have to present it in an honest, an intellectually cohesive and coherent manner. And I have to address something that I think is important. And I think it is a prime example of what I am asking you and what is your obligation to do to look at the evidence in light of all of the other pieces of evidence. So you heard during the testimony of Dr. Fowler, that one of the things that he considered is the possibility that carbon monoxide was present and could have contributed to an environment that created an oxygen deprivation. You heard that testimony.
Eric Nelson: (09:42)
In rebuttal to that testimony, the state brought Dr. Tobin back in and he told you, we can completely disregard that. We know as a fact, we know conclusively that Mr. Floyd did not have carbon monoxide because his oxygen was saturated to 98%. And you just heard the state say, just like I am right here. So it stands to reason. I could get up in front of you and I could argue to you, we know this wasn’t asphyxiation because George Floyd had a 98% oxygen level. How could he have been asphyxiated at the hospital with a 98% oxygen level? But that’s not intellectually honest. It doesn’t stack up against the rest of the evidence because of what we know. We heard the testimony of Seth Bravinder and Derek Smith, the paramedics. We heard the testimony of Dr. Langenfeld. They came in and they said they began resuscitative efforts, they introduced oxygen and oxygen supply. They’re manually breathing for him. They’re re-oxygenating his blood.
Eric Nelson: (11:11)
So when you look at that piece of evidence, when you look at a piece of evidence like that, you have to compare it against all of the other evidence. Because you can’t come in and say, “George Floyd on one hand, George Floyd died of asphyxiation, but he has a 98% oxygen level.” His blood is oxygenated. Then it is stands to reason, the opposite is true as well. You can’t come in and say, “I can conclusively prove that Mr. Floyd didn’t have carbon monoxide in his blood because he had this high oxygen saturation.” You test one statement against the evidence of other people and you compare it. That is what you, as jurors are obligated to do and what I am asking you to do. Compare the evidence against itself, test it, challenge it, compare it to the law, read the instructions in their entirety. Start from a point of the presumption of innocence and see how far the state can get. I submit to you that the state has failed to meet its burden of proof beyond a reasonable doubt.
Eric Nelson: (12:43)
Mr. Chauvin has been charged as the state indicated with these three charges, and the judge has instructed you. Count one is second degree murder while committing a felony. It’s also called the felony murder rule in Minnesota. Kind of the textbook example is I run into a liquor store, I pull a gun, I’m intending to rob the liquor store, my gun goes off, I shoot and kill the teller. I didn’t intend to go in and murder that person, but the death of that teller occurred while I was committing a felon. That’s the felony murder rule. He’s been charged with murder in the third degree for performing an intentional act that was eminently dangerous. You’ve seen the instructions. You’ve heard them. And manslaughter in the second degree. Again, the law has all the words that defines the words that you need, and the instructions should be considered in their entirety.
Eric Nelson: (13:48)
Whenever I meet with a client, I try to explain what the elements are, and this is the analogy that I use. I say that the criminal case is kind of like baking chocolate chip cookies, you have to have the necessary ingredients. You’ve got to have flour and sugar and butter and chocolate chips, and whatever else goes into those chocolate chip cookies. If you have all of the ingredients, you can make chocolate chip cookies, but if you’re missing any one single ingredient, you can’t make chocolate chip cookies. It’s a simple kind of analogy. But the criminal law works the same way. We call the ingredients, the elements. The state has the burden of proving each and every element beyond a reasonable doubt. Not just some global proposition that they’ve proved their case beyond a reasonable doubt. They have to prove each of these elements beyond a reasonable doubt. And if you determine that they have done so, you convict. But if they are missing any one single element, any one single element, it is a not guilty verdict.
Eric Nelson: (15:07)
And you saw the spreadsheet that the state put up. The elements are a little different in each of these cases. And some of these elements will take less of your consideration. You will have to look at the evidence and you will have to, for example, determine, is Cup Foods in the City of Minneapolis? Is Minneapolis in the County of Hennepin? Is Hennepin county in the State of Minnesota? Did this happen on May 25th, 2020? It’s going to take less of your consideration, but nevertheless, you have to do that. You have to go through that process.
Eric Nelson: (15:43)
Two of the elements that I want to focus on during the course of my discussion here today, two of these elements are common throughout … Or two of these issues are common and apply to all three counts. And so I want to focus my remarks today on those two issues.
Eric Nelson: (16:04)
The first, were Mr. Chauvin’s actions an authorized use of force by a peace officer Because in the instructions, it specifically tells you, no crime is committed if it was an authorized use of force period, end of discussion. The second is an element that is, and does appear in all three counts. That is the cause of death. What caused Mr. Floyd’s death? We’re going to talk about that second.
Eric Nelson: (16:44)
Let’s start with the concept of reasonable force. As the instructions read in their entirety, “No crime is committed if a police officer’s actions were justified by the police officer’s use of reasonable force in the line of duty and effecting a lawful arrest or preventing an escape from custody. The kind and degree of force a police officer may lawfully use in executing his duties is limited by what a reasonable police officer in the same situation would believe to be necessary. Any use of force beyond that is not reasonable. To determine if the actions of the police officer were reasonable, you must look at those facts, which a reasonable officer in the same situation would have known at the precise moment the officer acted with force. You must decide whether the officer’s actions were objectively reasonable in light of the totality of the facts and circumstances confronting the officer and without regard to the officer’s own subjective state of mind, intention or motivations. The defendant is not guilty of a crime if he used force as authorized by law. And to prove guilt, the state must further prove beyond a reasonable doubt that the defendant’s use of force was not authorized by law.”
Eric Nelson: (18:22)
If you remember from my opening statements and how I talked about reason and common sense. The reasonable police officer standard. I want to just briefly add one thing here, is the standard is not what should the officer have done in these circumstances. It’s not what could the officer have done differently in these circumstances. The standard is, what were the facts that were known to this officer at the precise moment he used force? And considering all of the totality of circumstances and facts known to the officer, would a reasonable police officer … What would a reasonable police officer have done?
Eric Nelson: (19:23)
You have heard from numerous experts, police use of force experts, the Training Department from the Minneapolis Police Department. You’ve heard from police officers, street police officers, Sergeant Edwards, Sergeant Kluger. So you’ve heard from these people and they have given you their opinions at various stages as to the reasonableness of the use of force. But one of the things that all of these police officers effectively agreed to is that when you look at the question of, what would a reasonable police officer do, knowing the facts of the case? There are things that a police officer is entitled to take into consideration above and beyond the facts. Their training, the training that they received, their experience as a police officer, the department’s policies on the use of force. And all of these things kind of lead into the question of most critically, what are the facts that were known to the police officer, the reasonable police officer at the precise moment the force was used?
Eric Nelson: (20:42)
So you can start at a very high level, what were the reasonable officer’s knowledge of the area be? Is this a high crime location? Is it a low crime area? Those are facts that a police officer would know. What are the specifics of the location of arrest? Am I going into a densely populated urban environment, or am I in a kind of a secluded backyard? Officer is calculating these pieces of information and assessing the risk, assessing the threats.
Eric Nelson: (21:24)
Officers are entitled to kind of take into consideration things that you and I don’t think about, their tactical advantages, their tactical disadvantages. They can take into consideration the scene security, keeping the scene secure and security of the scene. Those are two different concepts. So kind of, again, focusing back into what facts were known at the precise moment force is used. You can then take into consideration kind of this mid range level of information. A reasonable officer wants to keep his fellow officers safe. A reasonable police officer takes into consideration the safety of civilians, the reasonable police officer takes into account the safety of the person that they are arresting. They take into account, what resources do I have based upon? How close am I to a hospital? What’s the expected time if I call EMS? Because a reasonable police officer at times, they got to put the person in their squad car sometimes and take them because they’re farther away. Calling for help, bringing help in would take longer than it would simply to take the person directly.
Eric Nelson: (22:51)
And then you look at the direct knowledge that a reasonable police officer would have at the precise moment force was used. That includes information that they gather from dispatch, their direct observations of the scene, the subjects, and the current surroundings. They have to take into consideration whether the suspect was under the influence of a controlled substance. They can take into consideration, because again, this is a dynamic and ever-changing … Just like life, things change. It’s a dynamic situation. It’s fluid. They take into account their experience with the subject at the beginning, the middle, the end. A reasonable police officer tries to, or is at least cognizant and concerned about future behavior based upon past behavior. But the unpredictability of humans factors in to the reasonable police officer’s analysis too, because sometimes people take reasonable police officers, take someone into custody with no problem and suddenly they become a problem. It can change in an instant.
Eric Nelson: (24:11)
A reasonable police officer will take into consideration his immediate surroundings. Are there bystanders? Are there civilians? A reasonable police officer will take into consideration who he is at the scene with. Are these veteran officers? Are they rookie officers? What do I know about my partners and my partners’ abilities?
Eric Nelson: (24:43)
So throughout the course of this trial, the state has focused your attention on nine minutes and 29 seconds. The proper analysis is to take those nine minutes and 29 seconds and put it into the context of the totality of the circumstances that a reasonable police officer would know. And the proper analysis starts with, what did the officers, or what would a reasonable officer know at the time of dispatch?
Eric Nelson: (25:22)
Well, these are records that are kept, they’ve been introduced. You can look at them. This is exhibit 151. This is the computer aided dispatch report. You heard the testimony of Jena Scurry, the 911 dispatcher. This is information that they are passing out to the officers. You will see that the initial information that a police officer has in his squad car, looking at his computer or hearing over the radio, was that on May 25th, 2020 at 20:02:13, that’s 8:02:13, a business, Cup Foods who police officers have the obligation to respond to these calls, whether it be from a person or a business, but a citizen of the State of Minnesota, Minneapolis runs a business and they called for assistance. And they told the officers, the reporting party, there is a male who provided a counterfeit bill to the business. He’s six feet tall or higher. He’s sitting on top of a blue Mercedes, ML 320 SUV, the license plates. Also appears this subject is under the influence.
Eric Nelson: (26:49)
So the analysis is of what a reasonable police officer would know in this circumstance is that A, a business is requesting its help, the suspect is still there, he’s large, and he’s possibly under the influence of alcohol or something else. So the analysis begins at 8:02 and 13 seconds.
Eric Nelson: (27:21)
You may recall the testimony of Jena Scurry as well, and it’s not reflected in this exhibit pretty well, but in the evidence, exhibit number 10, you can hear the audio recording of the dispatch, Jena Scurry to the officers. Jena Scurry informed you that initially Officer Chauvin was assigned to this call on a Code 3 Priority 1 basis. It’s Code 3, get there lights and sirens, get there fast. It’s priority 1, because the suspect is still unseen. So per the Minneapolis Police Department policy, get there fast, the person is on scene. That’s what she testified. And then very quickly after that, that occurred at 8:04 and 28 seconds.
Eric Nelson: (28:15)
Then what you see is … Or what she told you was that the sector car, sector car 320. That’s the car that patrols this part of the city said, “Hey, we can take this call.” And Officer Chauvin and Officer Thao were canceled from the call. So they were canceled from the call and sector car 320, Officers Kueng and Lane took it. And that occurred at 8:05 and 11 seconds. When Officer Kueng and Lane took it over, you can hear … Again, you can go back and you can listen to that audio of that dispatch and you can hear them talking to each other. Officers Kueng and Lane arrived at the Cup Foods at 8:08 and 20 seconds.
Eric Nelson: (29:26)
So now, what do you see? Police officers are responding, they’re on scene at 8:08. Both Jena Scurry and Peter Chang described that during the course of the initial interaction between Officers Kueng and Lane and Mr. Floyd, through dispatch, they heard what sounded like the sounds of a struggle. Jena’s Scurry described, she’s trained to listen. She heard these sounds of a struggle, and she aired out on her own, other officers need to respond code 3 to assist Officers Kueng and Lane. So a reasonable police officer is going emergent to a scene. He gets canceled from the scene. He’s now being told that other officers need assistance and step it up, get there fast.
Eric Nelson: (30:28)
So you can see again, based on the records that 8:10:08, 20:10:08, backed up 320 with 330. So now 330 is Officers Chauvin and Thao. They’re backing up Officer Kueng and Lane. And you can see Peter Chang respond at 8:10 and 21 seconds. You hear 320 taking one out. So they’re-
Eric Nelson: (31:03)
… 320 taking one out. So that means they’re removing someone from the vehicle at 8:11:02. The scene is ultimately C4, Code 4, all clear at 20:12:21. So literally this demonstrates to you a couple of things. How quickly a situation can change from second to second, minute to minute. They went from get there fast, back off. Get there faster, because someone needs help. It’s clear. The situation is dynamic and it’s fluid. They’re provided with information that an officer needs assistance. They testified about the sound of a struggle, right? And if you recall, Sergeant Steiger specifically said, “All of this information would be known to a reasonable police officer.” And it goes into and factors into the reasonableness of the use of force. Ultimately, Officer Chauvin and Officer Thao arrive at Cup Foods. Let’s pause this for one second here. Sorry, I just have to give you a little piece of information. When we look at Officer Chang’s video, Officer Chang arrives first. You see the time is one 1:16:33 Z, Zulu. That’s Greenwich meantime. Subtract 5 from 1:00 AM, gets you back to 8:00. So Officer Chauvin and Officer Lane pull up. 8:16. Go over there.
Speaker 2: (33:19)
Speaker 3: (33:20)
Okay. Just stay put, all right? I don’t want anybody near his car.
Eric Nelson: (33:37)
Information gathering in terms of this assessment and reassessment of, again, the decision making process of a police officer, right? “Don’t come over here where I am,” Officer Chang says, “go over there. They need your help.” Because at that point, at that precise moment, they don’t know what’s happening over at the squad car. They don’t know that officers Kueng and Lane struggled with Mr. Floyd getting him out of the car, that they sat him down, that they stood him up, that they walked over. They haven’t seen any of this information, and there’s no evidence to suggest that they have, so that doesn’t factor into the information. So again, a reasonable police officer, what do they know? And they don’t know that. But they’re starting to get some indication, “Hey, go over there,” right? “Go over there.”
Eric Nelson: (34:38)
You can see right at about 8:17, and I apologize for the quality of the picture, Officer Chauvin is arriving and walking up to the squad car. So what a reasonable police officer, what would a reasonable police officer see in this instance? What a reasonable police officer would see could be defined, because again, a reasonable police officer has to be aware of his department policies, active aggression or active resistance. Let’s call it active resistance. A response to police efforts to bring a person into custody or control for detainment or arrest. A subject engages in active resistance when engaging in physical actions or verbal behavior reflecting an intention to make it more difficult for officers to achieve actual physical control. So as Derek Chauvin walks up to this scene, he has all of the information from dispatch.
Eric Nelson: (35:52)
He has all of the information from Officer Chang sending him over. He knows his department policy on the difference between active aggression, active resistance, passive resistance based on policy, training, et cetera. This is an officer’s consideration of, again, the use of force. All of these things factor into it. So what does he see? He sees Officer Kueng and Officer Lane struggling with Mr. Floyd attempting to put him into the car. He hears the words that Mr. Floyd is saying at that point, “I’m claustrophobic. I’m a good guy. I’m a good man. I’m claustrophobic. I just had COVID.” Right?
Eric Nelson: (36:42)
He’s hearing this information. He’s observing with his eyes. A reasonable police officer is observing this with his eyes and his ears and assessing what he sees pursuant to policy. And what he sees at a minimum is active resistance. Mr. Floyd’s not just simply getting in the backseat of the car. So let’s watch what does Officer Chauvin see when he walks up. This is from his body camera from 8:17 and 21 seconds to 8:18 and 15 seconds, just shy of a minute.
Speaker 4: (37:28)
You can’t win!
George Floyd: (37:28)
He know it. [inaudible 00:37:38]. Don’t do me like that, man.
Speaker 5: (37:39)
After you get in this car, we can talk.
George Floyd: (37:51)
I’m claustrophobic, I’m claustrophobic. God, I’m claustrophobic. [inaudible 00:37:51] in the front. I’m not a bad guy, man.
Speaker 5: (37:57)
Get in the car!
George Floyd: (37:58)
I’m not a bad guy.
Speaker 4: (38:04)
You ain’t going to win!
George Floyd: (38:05)
[inaudible 00:38:05], please, man! I can’t choke. I can’t breathe. Please! [inaudible 00:38:22].
Eric Nelson: (38:24)
By 8:18 and 15 seconds, Officer Chauvin has not laid a finger on Mr. Floyd, but he’s observant, and a reasonable police officer is doing this. He walks onto a scene, he sees active resistance occurring, potentially active aggression occurring. He has two other officers. He has not intervened. But again, based on the policies and the training that you have seen, what were his options available to him at that time? If a person is actively resistant in the center, distraction techniques, controlled take downs, conscious neck restraints. Can you [inaudible 00:39:14]? These are options available to Mr. Chauvin at this point. He has, per his training, these techniques at his disposal. A reasonable police officer would be making these observations. He would observe the white foam around Mr. Floyd’s mouth. He would consider the possibility that this person was under the influence of something. Basically using the information from dispatch, making these observations, how is he analyzing this? How would a reasonable officer analyze this and what would be known to a reasonable officer? A reasonable officer would look at the size of the person and assess that person’s size in relation to his own size, because it’s a part of the risk threat analysis that we’ve heard about so much. A reasonable officer would know that these are two rookies putting this man in the car. In fact, as the evidence established, Mr. Chauvin trained one of the officers.
Eric Nelson: (40:40)
So a reasonable officer may step back at this point to see if these two guys can get this under control. A reasonable officer will hear the words that the suspect is saying, “I’m a good guy. I’m a good guy. I’m a good guy. I’m claustrophobic,” and he’s going to compare those words to the actions of the individual, right? Because this is part of the analysis, because I can say, “I’m going to cooperate with you. I’m going to do whatever I want.” But if my behavior is inconsistent with what I am saying, the reasonable officer takes that into consideration. In fact, a reasonable officer who’s aware of his department policies knows the deescalation policy that is in place. And part of what a reasonable officer has to do is to consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on these factors, medical conditions, mental impairment, developmental disability, physical language, language barrier, influence of drugs or alcohol or a behavioral crisis.
Eric Nelson: (41:58)
So an officer, a reasonable officer has to take the information and assess is this suspect purposefully or intentionally deliberately trying to thwart our efforts to take him into custody or are they experiencing one of these other types of factors? But such consideration when time and circumstances reasonably permit shall then be balanced against the incident facts when deciding which tactical options are the most appropriate to resolve the situation safely. So again, a reasonable officer, based on the totality of these circumstances, is going to take all of this information in, all of these policies, all of these trainings and a reasonable officer at that point would conclude that the amount of force that was being used by officers Kueng and Lane was insufficient.
Eric Nelson: (42:58)
It was not enough use of force to overpower Mr. Floyd’s resistance to getting into the car. He’s seen it, he’s heard it, he’s familiar with the policies. And so, at precisely 8:18 and 15 seconds, Officer Chauvin goes hands on. Officer Kueng, Officer Lane, and Officer Chauvin struggled, fought, whatever adjective you want to use. They struggled with Mr. Floyd from 8:18, until 8:19 and 12 seconds. About a minute, a little over a minute. It doesn’t really seem that it’s that long of a time. But again, the amount of physical exertion, remember how Jody Steiger, Sergeant Jody Steiger described this. “When the apparent attempts to get him into custody were futile,” I wrote his quote down, “the futility of their efforts became apparent.” They weren’t able to get him into the car. Three Minneapolis police officers were not able to get Mr. Floyd into the car. They, themselves are experiencing that surge of adrenaline. A reasonable police officer will be experiencing that surge of adrenaline. And again, balancing all of the evidence against each other, right? Let’s look at three different angles of the struggle. This is Officer Kueng’s body camera.
Speaker 5: (44:53)
Get in the squad.
Speaker 6: (45:00)
[inaudible 00:45:00] heart attack [inaudible 00:45:01].
George Floyd: (45:00)
I can’t breathe!
Speaker 6: (45:00)
Get in the car.
George Floyd: (45:11)
[inaudible 00:45:11]. I can’t breathe! I can’t breathe!
Speaker 5: (45:13)
Take a seat.
George Floyd: (45:14)
Please, man. Please listen to me.
Speaker 7: (45:17)
Is he going to jail?
Speaker 5: (45:19)
He’s under arrest right now for forgery. [inaudible 00:45:22] what’s going on.
George Floyd: (45:23)
Forgery for what? For what? Please, man! I can’t fucking breathe.
Speaker 5: (45:29)
Come on out.
George Floyd: (45:30)
Thank you, thank you.
Speaker 5: (45:33)
Get on the ground. On the ground.
Eric Nelson: (45:37)
He’s under arrest for forgery, forgery for what? This is the video of the same time period from Officer Lane.
George Floyd: (45:54)
I want to lay on the ground, I want to lay on the ground. I’m going down, I’m going down. I’m going down.
Speaker 5: (45:55)
Get in the squad.
Speaker 6: (46:08)
[inaudible 00:46:08] heart attack [inaudible 00:46:09]. Get in the car.
George Floyd: (46:20)
I can’t breathe!
Speaker 6: (46:21)
Get in the car!
George Floyd: (46:21)
I can’t breathe! Let go of me, man. I can’t breathe. I can’t breathe. Please, man! Please listen to me.
Speaker 7: (46:25)
Is he going to jail?
Speaker 5: (46:28)
He’s under arrest right now for forgery. [inaudible 00:47:29] what’s going on.
George Floyd: (47:31)
Forgery for what? For what? Please, man! I can’t fucking breathe!
Speaker 5: (47:36)
Come on out. I appreciate that.
Eric Nelson: (47:37)
George Floyd: (47:37)
I want to lay on the ground, I want to lay on the ground.
Speaker 5: (47:37)
Get in the squad.
George Floyd: (47:37)
I’m going down, I’m going down. All right, all right, all right. I know I can’t breathe. I can’t breathe! Let go of me, man.
Speaker 6: (47:37)
Is he going to jail?
Speaker 5: (47:37)
He’s under arrest right now for forgery. [inaudible 00:47:37] what’s going on.
George Floyd: (47:37)
Forgery for what? For what? Please, man! I can’t fucking breathe! Thank you, thank you.
Speaker 8: (47:37)
On the ground.
Eric Nelson: (47:45)
A reasonable police officer understands the intensity of the struggle. You can see at points when Mr. Floyd’s legs kick back. It actually almost knocks Officer Lane over. It knocks off the body worn camera and the badge of Officer Chauvin in this struggle. A reasonable police officer would understand this situation, that Mr. Floyd was able to overcome the efforts of three police officers while handcuffed with his legs and his body strength. A reasonable police officer standard can be seen in another way from the milestone camera and this is what caught the attention of the 911 dispatcher, Jenna Scurry. She said she observed the struggle and the vehicle rocking back and forth, back and forth. Watch the vehicle. (Silence). Reasonable police officers will consider their training.
Eric Nelson: (51:03)
And before we talk about the training again, there’s something that I think is really important to understand. Two things, actually, at this moment. Not a single use of force expert that testified, not a single police officer who testified said that anything up until this point was unlawful or unreasonable. It was reasonable for these officers to put Mr. Floyd into the squad car. It was reasonable the efforts that they took to overcome his resistance were reasonable. Every single expert agrees that to this point nothing is contrary to policy, training, defensive tactics, crisis intervention, all reasonable it’s at the point that Mr. Floyd is brought to the ground that there becomes dispute about the reasonableness of the use of force and what a reasonable officer would know.
Eric Nelson: (52:10)
It was Seth Stoughton, the law professor who said at the point, Mr. Floyd came out of the car, putting him on the ground was unreasonable. So was it reasonable for Officer Chauvin or a reasonable police officer to put Mr. Floyd on the ground in that instance? So a reasonable police officer is going to rely on his training and information, his evidence, what he knows, all of the information he’s built up to this point. You heard Lieutenant Mursal testify about how about 15 years ago, the Minneapolis Police Department went to ground defense tactics. Getting people on the ground to control them, control the head, control the body. Different types of moves that the police use to create and eliminate space. Escape versus control. Those are two different things. These are the tactics that have been employed by the Minneapolis Police Department for 15 years, why? Because it’s safer for the officers and it’s safer for the suspects.
Eric Nelson: (53:27)
It keeps people contained, controlled and confined until they no longer are resistant. A reasonable police officer would also consider his department’s policies, including the use of non-deadly force policy. “Force that does not have the reasonable likelihood of causing or creating a substantial risk of death or great bodily harm. This includes, but is not limited to, physically subduing, controlling, capturing, restraining, or physically managing a person.” This is the policy 5-302 of the Minneapolis Police Department that non-deadly force can be used to physically manage a person. And again, every single person has agreed that the use of force up to this point is reasonable, lawful and meets the reasonable officer standard. And so, we get into the 9 minutes and 29 seconds at this point. The State has really focused on the 9 minutes and 29 seconds, 9 minutes, 29 seconds, 9 minutes, 29 seconds.
Eric Nelson: (54:53)
It’s not the proper analysis because the 9 minutes and 29 seconds ignores the previous 16 minutes and 59 seconds. It completely disregards it. It says, “In that moment, at that point, nothing else that happened before should be taken into consideration by a reasonable police officer.” It tries to reframe the issue of what a reasonable police officer would do. A reasonable police officer would in fact take into consideration the previous 16 minutes and 59 seconds. Their experience with the subject, the struggle that they had, the comparison of the words to actions. It all comes into play, why? Because human behavior is unpredictable. Human behavior is unpredictable, and nobody knows it better than a police officer. Someone can be compliant one second and fighting the next. Someone can be fighting and then compliant.
Eric Nelson: (56:03)
Nobody knows it better. But reasonable police officers continue to assess and reevaluate. This is the critical decision making policy or model. You gather information, you assess the threat versus the risk. Do we have an authority to act? What are our goals and actions ?review and assess. Start over. Because this is not a singular cycle. This is a cycle that as humans, we literally make millions of decisions in a day, right? Do I go this way? Do I go that way? Do I go up? Do I go down? We are constantly doing this. This is just human behavior. But in the policing context, you have to gather the information, assess the risk, assess the threat. Do I have authority to act? What are my goals and actions? Review and assess and it’s constantly rotating. At the precise moment that Mr. Floyd was laid on the ground, a reasonable police officer would know about those previous 17 minutes.
Eric Nelson: (57:18)
A reasonable police officer would know about the struggle. A reasonable police officer would consider the suspect’s reactions to the previous use of force. A reasonable police officer would continue this process of reassessment and a reasonable police officer would consider whether to use an additional force to overcome the suspect’s level of resistance, right? So in 9 minutes and 29 seconds …
Speaker 5: (57:45)
I appreciate that, I do. Jesus Christ.
George Floyd: (58:01)
I can’t breathe.
Speaker 5: (58:14)
George Floyd: (58:15)
I can’t breathe. Mama, mama.
Eric Nelson: (58:23)
Continuing to assess the risk and effect, the first 29 seconds, 20 seconds continued resistance is what a reasonable police officer would interpret that to be Jesus Christ, the kicking. A reasonable police officer would consider, should we elevate the use of force as we meet this threat? And that’s precisely what these officers did. They discussed using the MRT, the hobble.
George Floyd: (59:12)
Mama, I love you.
Speaker 7: (59:13)
Are we calling for EMS, or no?
Speaker 5: (59:15)
Yeah, EMS is on their way.
George Floyd: (59:16)
My face is [inaudible 00:59:17]. I can’t breathe, man. Please, please let me stand. Please, man, I can’t breathe.
Eric Nelson: (59:31)
They’re discussing should we use the hobble? Should we elevate our use of force? A reasonable officer would continue to evaluate whether the suspect is under the influence, precisely what these officers did this 9 minutes and 29 seconds.
George Floyd: (59:51)
[inaudible 00:59:51]. Please, please. Please, I can’t breathe. Please, man. Mama, mama. [inaudible 01:00:20]. My neck.
Eric Nelson: (01:00:23)
So reasonable police officers discuss the scene. The first clip they’re talking about the two other people that are over at the car, right? What’s going on here? What are we dealing with? Is this person under the influence of a controlled substance? These are the actions of a reasonable police officer. A reasonable police officer would rely on his training and experience. Call EMS. Possibility that a suspect who was struggling with us will begin to struggle again. You’ve heard this testimony from multiple police officers. The risk that the suspect would present to himself if he’s not continued to be controlled and the risk that the suspect presents to other officers or citizens if not continued to be controlled.
Eric Nelson: (01:01:19)
If he’s not continued to be controlled, right? These are things that all of the police officers have testified about. These are what a reasonable police officer should do. A reasonable police officer in this situation would call EMS 20:20:11, 8:20:11. Within a minute of the struggle, EMS code two for a mouth injury, right? Because they are not observing life threatening, a reasonable officer is not observing life threatening injuries at this point. They just fought with the man for a minute. He continued to kick at them when they got him on the ground.
Eric Nelson: (01:02:02)
He continued to kick at them when they got him on the ground. They see he’s got a mouth injury. We need EMS. A reasonable police officer would evaluate the injuries of the suspect, compare words and actions and respond by calling EMS. Non-emergency. But again, reasonable police officers reevaluate. 2021, 8: 21, one minute and 24 seconds later, we need EMS here faster. Code three. 3:30. We need them here faster
Eric Nelson: (01:02:53)
A reasonable police officer would take into consideration the anticipated time of a emergent response. You heard from Genevieve Hanson. There’s a firehouse a few blocks away, and she would have expected EMS to be there within minutes. Three minutes is what she said. A reasonable police officer based on his training and experience is going to have, and take that into consideration. I put this person in a prone position on the ground. I’m holding them for my safety and their safety. I’m expecting someone to be here within three minutes to help this person. I have called for that help.
Eric Nelson: (01:03:41)
A reasonable police officer will take into consideration, again, his training, his experience, right? Lieutenant Mercil talked about, and many people talked about, many of the officers talked about how it is not uncommon for suspects to feign or pretend to have a medical emergency to avoid being arrested. Unfortunately, that is the reality. Nobody likes to get arrested and reasonable police officers know that. How many times does someone, “Oh, my heart hurts,” or I’m having a medical emergency,” insert whatever emergency. Right? Simply because they don’t want to go to jail. A reasonable police officer will take his training into experience. And you heard Lieutenant Mercil specifically say that when someone says that they can’t breathe, but they are talking, if they’re talking, it means they’re breathing. Right? If they’re talking, it means they’re breathing. Again, compare that to the testimony of Dr. Tobin, who told you that same thing. That is true. If you are talking, you are breathing. It doesn’t mean effectively. Dr. Tobin described how even medical doctors have problems sometimes assessing the legitimacy of a patient’s needs relevant to their respiratory processes because they’re saying, “I can’t breathe,” and some doctors confuse it for just anxiety or this or that. If medical doctors make these mistakes, Dr. Tobin told you it provides a false sense of security. Right? Lieutenant Mercil told you that that is what is said among police officers. He’s the trainer. How many times do we hear an officer say based on his training and experience, if you can breathe, you can talk. If you can talk, you can breathe. Excuse me. I counted seven.
George Floyd: (01:06:11)
Please, man! Please! I can’t! I can’t, yo! I can’t breathe! I can’t! Please!
Derek Chauvin: (01:06:12)
Quit your talking! Sit down!
George Floyd: (01:06:50)
George Floyd: (01:06:50)
I know I can’t breathe! I can’t breathe!
Derek Chauvin: (01:06:50)
You’re talking [crosstalk 01:06:50]. It takes a lot of oxygen [crosstalk 01:06:50] breathe!
George Floyd: (01:06:50)
Derek Chauvin: (01:06:50)
George Floyd: (01:06:50)
I can’t breathe!
Derek Chauvin: (01:06:50)
You’re fine. You’re talking fine.
Speaker 9: (01:06:50)
George Floyd: (01:06:50)
I can’t breathe! Please. I can’t breathe, officer!
Derek Chauvin: (01:06:50)
[crosstalk 01:06:50] talking. A lot of yelling too.
George Floyd: (01:07:03)
Derek Chauvin: (01:07:03)
It takes a heck of a lot of oxygen to [crosstalk 01:07:03].
George Floyd: (01:07:03)
Come on, man!
Eric Nelson: (01:07:03)
Reasonable police officers, again, are trained and take into consideration a person’s actions relevant to their words. Their training, their experience. It takes a lot of oxygen to talk. It takes a lot of oxygen. You’re breathing fine if you can talk.
George Floyd: (01:07:24)
I can’t breathe, man.
Speaker 10: (01:07:27)
Derek Chauvin: (01:07:30)
He’s talking, so he’s fine.
Speaker 10: (01:07:31)
Derek Chauvin: (01:07:33)
We tried that for 10 minutes.
Speaker 10: (01:07:35)
Derek Chauvin: (01:07:41)
He’s talking, he’s fine.
Speaker 10: (01:07:42)
No, he ain’t fine.
Derek Chauvin: (01:07:44)
Okay. We’re done.
Speaker 10: (01:07:45)
Eric Nelson: (01:07:47)
Reasonable police officers will take into consideration their training and experience on excited delirium, and they will analyze it within the context of this case.
Speaker 9: (01:08:00)
Roll him on his side?
Derek Chauvin: (01:08:01)
No, listen [inaudible 01:08:03].
Speaker 9: (01:08:07)
I just worry about the excited or delirium or whatever.
Derek Chauvin: (01:08:12)
That’s why we have EMS coming.
Speaker 9: (01:08:12)
Eric Nelson: (01:08:14)
“I worry about the excited or delirium or whatever.” “That’s why we have EMS coming.” It’s not just leave him here. It’s we have EMS coming and this is why we have EMS coming. Reasonable police officers throughout the course of a control technique will continue to assess the level of resistance. Remember what Sergeant, excuse me, Lieutenant Johnny Mercil said: “Simply because a person isn’t kicking at you or punching at you or biting at you, it does not mean that you can’t control them physically with your body weight.” This is at 8:24.
Speaker 10: (01:09:08)
Eric Nelson: (01:09:27)
This is the point where Dr. Tobin testified that Mr. Floyd had an anoxic seizure. Right? But we’re not analyzing the use of force from the perspective of a doctor with 46 years of medical experience who had 150 hours of time to watch an event from multiple perspectives over and over and over and over again, it’s a reasonable police officer standard. How would a reasonable police officer interpret this? Does a reasonable police officer even know what an anoxic seizure is? A reasonable police officer will interpret this as at least some form of minimal resistance. Reasonable police officers, again, are continuing to monitor. They’re expecting EMS to arrive.
Speaker 10: (01:10:34)
Eric Nelson: (01:11:02)
Non-deadly force is included. It includes, but it is not limited to physically subduing, controlling, capturing restraining, or physically managing a person. These are the policies of the Minneapolis Police Department. Reasonable police officers, again, continue to monitor. See if he’s breathing.
Speaker 10: (01:11:27)
… arrest right now. Passed out.
Speaker 9: (01:11:40)
I think he’s passed out.
Speaker 10: (01:11:40)
[inaudible 01:11:40], man.
Speaker 11: (01:11:40)
[inaudible 01:11:40] 2313 Washington Street [inaudible 01:11:43].
Derek Chauvin: (01:11:43)
All right, [inaudible 01:11:44]
Speaker 9: (01:11:44)
Yeah. I mean-
Derek Chauvin: (01:11:45)
Not so far.
Speaker 9: (01:11:45)
My knee might be a little scratched, but I’ll survive.
Eric Nelson: (01:11:53)
“I think he’s passing out, but he’s breathing, right?” It’s an anoxic seizure [crosstalk 01:11:58] Reasonable police officers are building and basing their decisions based on all of these factors coming in at multiple times, including the bystanders. Call them a crowd. Call them onlookers. Call them bystanders. It doesn’t matter what term you use for the people that gather to watch what police do. Reasonable police officers are cognizant of and aware of their surroundings.
Eric Nelson: (01:12:40)
And before I really kind of start talking about the crowd in some limited detail, I have thought a lot during the course of this trial about the difference between perspective and perception. Perspective and perception are two distinct concepts. Perspective is the angle at which you see something. It’s your perspective. Perception is how you interpret what it is that you see.
Eric Nelson: (01:13:13)
I’ve thought about this a lot during the course of this trial, because this situation here in the courtroom is incredibly unique. Right? It’s not the normal setup for a jury trial. My perspective through the course of this trial, sitting in this chair, is that I cannot see four of the jurors. Very limited opportunity to observe the jurors. They probably can’t see me either. Several of the jurors, I have a very good view of. Four of the jurors I don’t, and obstructed views of others. My perspective sitting in this chair when witnesses, there’s a camera blocking the head. In order for me to see the witness, I have to roll all the way over to the other side. Then I have to look through the plexiglass that has these large reflecting lights. Right? Things block your perspective. Things can affect your perspective. But your perception is how you interpret what it is you see, and what it is you experience. And that is our life, right? This is our experiences. These are the things that make us who we are.
Eric Nelson: (01:14:28)
Three people in this trial went to the same high school. Me, Darnella Frazier and Chief Arradondo. We all went to the same high school, obviously at different times. My experience, Chief Arradondo’s experience, Darnella Frazier’s experience all based on, we had the same perspective, sat in the same classrooms, saw the same chalkboards or wipe boards, the same perspective. But our perception of our experiences there is going to be much different.
Eric Nelson: (01:15:06)
Ultimately at the end of the case, when we’re done with these arguments, the court will instruct you on how to deal with these biases and the perception issues. The court’s final instructions will guide you to try to recognize your biases, recognize them, what we bring to the table and analyze the evidence from the perspective of the evidence itself. Let’s look at this incident on May 25th from the perspectives and perceptions of simply just four of the bystanders. Right?
Eric Nelson: (01:15:44)
Charles McMillan, 61 years old, third grade education, grew up in the South. He described himself as a curious guy, he likes to know what’s going on in his neighborhood, so he stops and he checks things out. Right? His perspective, he’s the first one who’s dealing with these guys. He has more information because he sees the entirety of the situation. But his perception of the event is affected by his life’s experiences. At the end of the night, ultimately what he said to officer Chauvin was, “I hope you get home safely,” because that’s what he says to police officers every night.
Speaker 11: (01:16:27)
Can you advise the Fire Department if they’re still with you, they need to go to 36 [inaudible 01:16:34].
Charles McMillian : (01:16:34)
[inaudible 01:16:34] respecting you here.
Derek Chauvin: (01:16:37)
Right, that’s one person’s opinion.
Charles McMillian : (01:16:38)
Derek Chauvin: (01:16:38)
[crosstalk 01:16:38] control this guy, because he’s a sizeable guy.
Charles McMillian : (01:16:46)
Yeah, I got that. Get in the car.
Derek Chauvin: (01:16:47)
Looks like he’s probably on something.
Charles McMillian : (01:16:49)
But I’m just saying [crosstalk 01:16:49] You respect me. I’m going to keep respecting you. You have a good night. You go home safe [inaudible 01:16:59].
Eric Nelson: (01:16:59)
Darnella Frazier. She’s a 17-year-old high school student who upon seeing the restraint of George Floyd, her response was to pull out the cellphone and start recording and then subsequently upload it to Facebook. Right? Her perception of the event and her perspective of the event. She’s looking, she didn’t even know that Officers Lane and King were there because her perspective was blocked by the squad car. But her perception, her response to the situation was to record it, and that’s perfectly fine. But she began her recording at 8:20 and 51 seconds.
Eric Nelson: (01:17:50)
Donald Williams, he’s a 33-year-old professional mixed martial artists who arrived at 8:22 and 39. He had spent the day fishing with his son, stopping for a drink when he became aware of the incident. He described his view of this based upon his perception as a mixed martial artist. Right? He has a set of experiences that caused him to react in a different way. What he perceived was happening was that Mr. Floyd was being choked with a blood choke.
Eric Nelson: (01:18:29)
I think we’re past this at this point. The paramedic reached in touch the carotid artery. To have a person rendered unconscious through a choke requires the blockage of both carotid arteries. This was not a neck restraint. This was not a chokehold.
Eric Nelson: (01:18:51)
He was upset. And that, again, is okay because his perception affected what he was seeing.
Eric Nelson: (01:19:03)
Genevieve Hanson. Right? 27-year-old female firefighter for the city of Minneapolis. She testified that when she walked into the scene, she described the crowd as upset. She said, “I walked into an upset crowd.” She said that, “The other voices distracted me from getting the officer’s attention.” And she testified, again, based on her perspective that Officer Chauvin appeared to have his hand in his pocket. She observed what she believed to be blood from Mr. Floyd’s face being pressed into the pavement. She observed fluid coming from Mr. Floyd’s body that she presumed to be urine. She testified that nobody ever told her that EMS or an ambulance was on the way. When I asked her about the response time she would have expected, three minutes. When I told her that paramedics had been called about five minutes prior to her arriving on scene, “No way,” because her perception is three minutes.
Eric Nelson: (01:20:15)
But when you look at the things that Ms. Hanson saw, whether it be from her perspective or her perception, there can always be more to the story. The blood coming from Mr. Floyd’s nose was why they called EMS in the first place. You’ve seen the pictures. He injured his nose during the struggle, or his face, during the struggle in the squad car. The fluid that she described as potentially being urine, we know that that’s fluid coming from the underside carriage of the squad car.
George Floyd: (01:20:55)
I cannot breathe, man.
Eric Nelson: (01:20:58)
Officer Chauvin specifically told her an ambulance was coming when she first came on scene.
Derek Chauvin: (01:21:08)
Don’t come over here. Don’t come over here.
Speaker 9: (01:21:09)
On the side walk.
Derek Chauvin: (01:21:10)
Yeah, we need you to keep some distance. [inaudible 01:21:15].
Eric Nelson: (01:21:16)
“Yep. We got an ambulance coming.”
Eric Nelson: (01:21:22)
The computer-aided dispatch reports clearly show what time EMS was caught. Genevieve Hanson has a perspective and a perception and what she observed was not consistent with the actual evidence. But remember, we don’t look at this incident from the perspective of a bystander. We do not look at this incident from the perspective of the people who were upset by it. We look at it from the perspective of a reasonable police officer.
Eric Nelson: (01:21:57)
A reasonable police officer, when confronted with these bystanders would know everything that had occurred up to that point. 20 minutes, 25 minutes, 30 minutes. They know all of that information. The bystanders do not. A reasonable police officer would understand that his actions were actually being recorded. Take the bystanders out of it. Officers wear cameras for a very specific reason, to record their actions. They know they’re being recorded. Officers are aware of the placement of city cameras. You’re in a high retail, you’ve got gas stations, restaurants, a convenience store. High surveillance. Right? Reasonable police officers know this. They would know if citizens take out their cellphones and start filming. This is the point, at 8:20 and 49 seconds, when Ms. Frazier starts recording. Reasonable police officers are aware when they’re using force that sometimes what they’re doing does not look good to the general public. A reasonable police officer will hear the frustration growing. Right? A reasonable police officer will hear the increase in the volume of the voices. A reasonable police officer will hear the name calling. Right? Chump, whatever names are being called. They’ll hear the cursing there. They’ll hear this, and they’ll take that into their consideration.
Eric Nelson: (01:23:46)
A reasonable police officer will rely on his recent training. I’ll come back to the training, a reasonable police officer will hear what the crowd is saying, he will compare his actions to what they are saying, and he will determine, I know I’m being recorded. Right? I know I’m being recorded. They’re saying that I’m doing something that’s awful looking. Am I doing this?
Speaker 10: (01:24:23)
Right. He is human, bro. [crosstalk 01:24:28] Put him in the car.
Derek Chauvin: (01:24:31)
We tried that for 10 minutes.
Speaker 10: (01:24:32)
That’s some bum-ass shit, bro. That’s some bum-ass shit, bro. Y’all know that. [inaudible 01:24:37] shit with your knee on the neck, bro.
Derek Chauvin: (01:24:39)
He still is talking. He’s fine.
Speaker 10: (01:24:40)
No, he ain’t fine, bro. [crosstalk 01:24:41] in a jujitsu move, bro, you try [inaudible 01:24:46] breathing right there, bro. You don’t think that’s what it is, bro? You don’t think nobody understands that shit right there, bro? I train at the academy, bro. That’s some bullshit, bro. Right, that’s bullshit, bro. That’s bullshit, bro. He’s fucking stopping his breathing right there, bro.
George Floyd: (01:25:00)
I can’t breathe.
Derek Chauvin: (01:25:01)
Okay. [inaudible 01:25:02] stop it. [inaudible 01:25:03] and start to talk when you can.
Speaker 10: (01:25:05)
Oh, but you can get him off the ground. You can get him off the ground, bro. You can get him off the ground. You’re being a bum right now. He enjoying that. He enjoying that shit. He enjoying that shit. He a fucking bum, bro. He enjoying that shit right now, bro. You could have fucking put him in the car by now, bro. He’s not resisting arresting or nothing.
Eric Nelson: (01:25:26)
You can see Officer Chauvin’s body language tells us a lot. Right? That’s what we just heard. Looking down, looking up, looking around, looking down, looking over, looking around. He’s comparing a reasonable police officer. He’s doing what a reasonable police officer would do. He’s comparing his actions, his own actions, in response to what the crowd is saying. A reasonable police officer, again, will rely on his training.
Eric Nelson: (01:25:57)
2020. March of 2020. Tactics of a crowd. Never underestimate a crowd’s potential. Most crowds are compliant. Crowds are very dynamic creatures and can change rapidly. A crowd may contain elements of several types of groups.
Eric Nelson: (01:26:15)
Now I acknowledged that this is in dealing with massive crowds, protests and things of that nature. These are the tactics, but you never underestimate a crowd’s potential because a reasonable police officer has to be aware and alert to his surroundings. A reasonable police officer will consider his department’s policies on crisis. What is defined as a crisis? Crisis, an event or situation where an individual safety and health are threatened by behavioral challenges to include mental illness, developmental disabilities, substance abuse, or overwhelming stressors. A crisis can involve an individual’s perception or experience of an event or situation as an intolerable difficulty that exceeds the individual’s current resources and coping mechanisms and may include unusual stress in his or her life that renders him or her unable to function as he or she normally would. The crisis may, but may not necessarily, result in an upward trajectory or intensity culminating and thoughts or acts that are possibly dangerous to himself, herself or others. Right?
Eric Nelson: (01:27:33)
A reasonable police officer is recognizing that the crowd is in crisis. That all of these things, the members, the bystanders, the citizens, whatever you want to call them, they are in crisis. A reasonable police officer considers his department’s training.
Eric Nelson: (01:27:55)
What are these potential signs of aggression that I may be confronted with? Somebody standing tall, somebody red in their face, raised voice, heavy breathing, tense muscles, pacing. Right? This is from the crisis intervention training. This is what Ker Yang testified to. These are signs that police officers are trained to look for in a crisis as potential signs of aggression.
Eric Nelson: (01:28:22)
How do you respond to those? You’re confident in your actions. You stay calm. You maintain space. You speak slowly and softly and you avoid staring and eye contact. Again, these are things that Ker Yang discussed in terms of how to deal with a crisis.
Eric Nelson: (01:28:47)
As this crowd grew more and more upset, or deeper into crisis, a very critical thing happens, at a very precise moment. I cannot, in my opinion, understate the importance of this moment. The critical moment in this case. If you recall from Dr. Tobin’s testimony, and nobody disagreed, that Mr. Floyd took his last breath at 8:25:16. 8:25:16. What is happening at the very precise moment that Mr. Floyd takes his last breath? You’re taking one piece of evidence and you’re comparing it against the rest. This moment, 8:25:16, as Mr. Floyd is taking his last breath …
Speaker 10: (01:29:58)
Get off him now. What is wrong with you all? What the fuck? He got mace. He got mace.
Speaker 10: (01:29:59)
He cannot breathe. Get over here. No first of all. [crosstalk 01:30:09] He’s not responding.
Speaker 9: (01:30:13)
Get off the street.
Speaker 10: (01:30:17)
He’s not responding right now. He’s not responding right now. He’s not respond-
Eric Nelson: (01:30:21)
Three things happen. Mr. Floyd takes his last breath. You see Officer Chauvin’s reaction to the crowd is to pull his mace and shake it. He’s threatening the use of force, as is permitted by the Minneapolis Police Department policy, and Genevieve Hanson walks in at that time from behind him. Startling him. All of these facts and circumstances simultaneously occur at a critical moment. And that changed Officer’s Chauvin’s perception of what was happening.
Eric Nelson: (01:31:11)
After this point, the crowd grows louder and louder. Right? At this point now, Mr. Floyd has taken his last breath, and the question is the rendering of medical aid.
Eric Nelson: (01:31:29)
When do we stop CPR, according to the Minneapolis Police Department’s policy? When it’s not safe. You heard Lieutenant Mercil talk about this and you also heard Nicole McKenzie talk about this.
Eric Nelson: (01:31:48)
Consider Nicole McKenzie’s testimony. As far as the reasonable police officer, which would include Nicole McKenzie, she discussed at length the difficulty of performing CPR in what she would describe as, or she did as, a hostile environment. You miss signs. Agonal breathing can be confused for effective breathing. As she testified, people in the area can affect the decision to treat a subject at the scene. She described how it is incredibly difficult to perform EMS efforts in a loud crowd, difficult to focus when you don’t feel safe. It makes it more difficult to assess a patient. It makes it more likely that you can miss signs that a patient is experiencing something. The distraction she said can actually do harm to a patient.
Eric Nelson: (01:32:50)
When we’re talking about this critical decision-making model, right, as Lieutenant Mercil said, he testified, “Sometimes you have to take into consideration whether it is worth the risk to remove-”
Eric Nelson: (01:33:03)
… consideration whether it is worth the risk to remove the handcuffs and render medical aid because it’s unpredictable. All of this information is coming at a reasonable officer.
Eric Nelson: (01:33:19)
The reasonable police officer standard can also be extended to Officer Chang. What is his perception of the crowd? You heard him testify, but you can also look at what was he doing during this time.
Speaker 12: (01:33:45)
Speaker 12: (01:33:45)
What was that?
Speaker 13: (01:33:49)
Speaker 12: (01:33:49)
Okay. Just say put. We’ll figure it out, all right?
Eric Nelson: (01:34:13)
You’ve got Officer Chang pacing, turning around 360 degrees. His attention is focused on what’s happening with the crowd, but he also has another job. Reasonable police officers and how they interact with the crowd is a consideration. You can also take into consideration the reactions of Shawanda Hill and Maurice Hall.
Shawanda Hill: (01:34:44)
He still won’t get in the car. Just sit down, [inaudible 01:34:48]. They got to push him in this car. Look, he’s trying to get out. What is he doing? Now he going to jail. All he had to do was [inaudible 01:35:05]. Look, they still fighting him. Oh, man. What is he doing?
Speaker 14: (01:35:21)
Eric Nelson: (01:35:22)
Not a police officer and their reactions to what’s happening. But also consider the paramedics. The paramedics. They did the load and go. As Derek Smith testified, he got out of the ambulance. He checked all four corners to gauge what was happening and determined, in his words, that it was an unwelcoming environment. And he told his partner they needed to move to a different location, a more safe and secure location. Remember Nicole Mackenzie’s testimony too. As unreasonable as it sounds, paramedics get attacked too.
Eric Nelson: (01:36:10)
We have all of these different opinions in terms of the use of force. We have all of the opinions of Seth Stoughton, Jody Steiger, Barry Broad, Zimmerman, Arradondo, David Pleoger, Lieutenant Mercil, and they all reach very different conclusions about when the force became unreasonable. All you have to know about Barry Broad is what he was talking about. Is this physically managing any person? His opinion was you can use non-deadly force to physically manage a person. It’s all within the model of the MPD decision-making model.
Eric Nelson: (01:37:06)
I found the most interesting person to be relevant to the use of force Lieutenant Johnny Mercil, considering that he is Derek Chauvin’s actual use of force trainer. So the best glimpse that we’re going to get into the training of a Minneapolis police officer comes from the trainer who conducts the trainings. He’s conducted hundreds of trainings over the years. He corrected the state at certain times in terms of how strike charts don’t apply to restraint techniques. He said the knee on the neck is not an unauthorized move and it can be utilized in certain circumstances.
Eric Nelson: (01:37:49)
He described using a knee on the neck and back and stated that it can be there for an extended period of time, depending on the level of resistance you get. He said that once the suspect is handcuffed, it does not necessarily mean that it is time to move your leg because when people are handcuffed, they can thrash around and continue to be dangerous to themselves and others. He talked about the ground defense program because it’s safer for both the suspect and the officer. He talked about ground defense as a form of using your weight to control a subject, and therefore replacing the need to punch your [inaudible 01:38:24]. He said there is no strict techniques. You need to be fluid and adapt to the circumstances, that he personally trains officers to put a knee over the shoulder, up to the base of the neck, and he described this maneuver as routinely trained by the Minneapolis Police Department.
Eric Nelson: (01:38:43)
He testified that there are circumstances that an officer would need to use his weight to continue to control a subject. He recognized the concept of awful, but lawful. Sometimes the use of force is just not that attractive. He’s experienced himself, arresting people who have claimed to had a medical emergency. He explained how one way people can resist is through their words. He described how someone resisting can become passive and then become resistant again and vice versa. He discussed how officers are trained, not just to focus on the subject, but also the bystanders. He trains officers that if you’re fighting with a suspect and that person then becomes compliant, it is a legitimate consideration for the continued use of force to control a subject, that if a subject overpowers more than one officer at a time, that is a legitimate consideration in the continuation of the use of force.
Eric Nelson: (01:39:43)
He talked about substance abuse and how that officers are trained. I understand that superhuman strength is not a real phenomenon. I know there are no Superman or Spiderman. But officers are specifically trained that someone under the influence of certain types of controlled substances exhibit this behavior. They become stronger than they normally would. We’ve all heard the anecdotal stories of the pregnant mom lifting the car off of someone. It’s not literally describing a superhero. It’s simply describing that someone is exhibiting a greater strength. And the Minneapolis Police Department specifically trains that.
Eric Nelson: (01:40:31)
He trains on the neck restraints. Minneapolis Police Department has a specific written policy on the use of neck restraints and it was permitted, even though this wasn’t a neck restraint or a choke hold. He talked about how you need to cut off the blood supply for a neck restraint to both sides of the neck. He talked about how someone whose heart rate is beating faster, they go unconscious quicker, less than 10 seconds. He described the human factors of force. That is how does the use of force affect the officer himself, his cognition, his abilities, his mental and physical state.
Eric Nelson: (01:41:16)
He agreed that not using the MRT is a form of deescalation. He described that sometimes you have to use your body weight to control a subject until the scene is code four. He said that Minneapolis will train officers that under certain circumstances, an officer can hold a person in the prone position until the scene is safe and he’s done it himself at times.
Eric Nelson: (01:41:45)
You have to take into consideration the presence of bystanders, where officers are located, and the environment that they’re in. Lieutenant Mercil agreed that there are where you, as I talked about this a little earlier ago, where you have to make a decision. Is it worth the risk to take the handcuffs off to perform medical aid? He said there are circumstances where you wouldn’t put someone in a recovery position, depending upon the safety of people, including the crowd while awaiting EMS. He described how crowds can make situations chaotic. He said simply because a person is not actively resisting, that does not mean that you cannot use force. Doesn’t mean that you cannot use force. Simply because someone isn’t stabbing you or punching you or shooting at you, it doesn’t mean that you can’t use force. And that is specifically in the Minneapolis Police Department policy on the non-deadly use of force that we’ve looked at a couple of times. The use of force is an incredibly difficult analysis. You can’t limit it to nine minutes and 29 seconds. It started 17 minutes before that nine minutes and 29 seconds. All of this information has to be taken. You have to look at it from the totality of the circumstance. Okay? You have to look at it from the reasonable police officer standing. You have to take into account that officers are human beings, capable of making mistakes in highly stressful situations. In this case, the totality of the circumstances that were known to a reasonable police officer in the precise moment the force was used demonstrates that this was an authorized use of force, as unattractive as it may be. And this is reasonable doubt.
Eric Nelson: (01:44:12)
Steiger talked about being on the panel. They have five officers on a panel to assess whether uses of force are reasonable. Sometimes it’s four to one. Sometimes it’s three to two. Sometimes it’s five to zero because the reasonableness of the use of force is not an easy, easy thing to consider.
Eric Nelson: (01:44:40)
I know, again, and I’m sorry I’m long-winded, there are a couple of other things I need to talk about very briefly, I promise I’ll be as brief as I can, before I get to the cause of death.
Eric Nelson: (01:44:52)
First is that of intent. As the state showed you with respect to counts one and two, you have to address Mr. Chauvin’s intent. Pay careful attention again to the instructions. Words have meaning. Intentionally or intentional means that the defendant either has the purpose to do the thing or cause the result specified or believes that the act, if successful, will cause the result. In addition, the defendant must have knowledge of those facts that are necessary to make his conduct criminal and that are set forth after the word intentionally intentional. It’s the same, you’ll see a very similar instruction twice. Intent.
Eric Nelson: (01:45:48)
Did Officer Chauvin intentionally apply unlawful force? That’s what you’re being asked to decide. Did he purposefully, purposefully apply unlawful force to another person? In count two, you have to decide did he purposefully perform an act, did he intentionally perform an act that was eminently done dangerous? What considerations do you have to your disposal, what pieces of evidence do you have? I’m going to try to go through these quickly. What evidence is there? What evidence is inconsistent with intent?
Eric Nelson: (01:46:38)
Some facts and circumstances that are important for you to decide in terms of his intent is within the context of aiding and abetting other people. First, officers know that they are being videotaped. They know they’re being videotaped by themselves. They know they’re being videotaped by bystanders. They know they’re being surveilled by the Minneapolis Police Department milestone camera. They know these things. Do you do something purposefully that you know is an unlawful use of force when you have four body-worn cameras immediately in the area, where you have multiple civilians videotaping you, where you know your actions are being reviewed through a city owned camera, where there are surveillance cameras? Do people do things intentionally and purposefully when they know they’re being watched?
Eric Nelson: (01:47:39)
Remember, Officer Lane offered to have, when they were putting Mr. Floyd into the squad car, he said, “I’ll sit with you. I’ll put the window down. I’ll turn on the air conditioner-”
George Floyd: (01:47:51)
[inaudible 01:47:51] Please. I’m just claustrophobic. [inaudible 01:47:52].
Officer Chauvin: (01:47:52)
You’re still going in the car.
Speaker 15: (01:47:55)
Got anything sharp on you?
George Floyd: (01:48:01)
[inaudible 01:48:01]. No, sir.
Speaker 15: (01:48:01)
Not even like a comb or nothing?
George Floyd: (01:48:02)
Nothing. I don’t have nothing. Why’d you all [inaudible 01:48:07]? I am claustrophobic for real [inaudible 01:48:10].
Officer Chauvin: (01:48:09)
You got him?
George Floyd: (01:48:09)
Can you please scratch it for me, please [inaudible 01:48:15]? Stay with me, man. Please stay with me, man.
Speaker 15: (01:48:15)
George Floyd: (01:48:20)
Thank you. Man, [inaudible 01:48:20]. [crosstalk 01:48:24].
Speaker 15: (01:48:20)
George Floyd: (01:48:23)
I understand that as people do stuff and [crosstalk 01:48:34].
Speaker 15: (01:48:34)
I’ll roll the windows down, okay?
George Floyd: (01:48:43)
Please, man. Please [crosstalk 01:48:43].
Speaker 15: (01:48:43)
Grab a seat.
George Floyd: (01:48:44)
Officer Chauvin: (01:48:44)
Take a seat.
George Floyd: (01:48:44)
I’m not that kind of guy. I’m not the kind of guy, man.
Officer Chauvin: (01:48:44)
Take a seat.
George Floyd: (01:48:45)
I’m going to die in here.
Officer Chauvin: (01:48:46)
Take a seat.
George Floyd: (01:48:55)
I’m going to die, man.
Officer Chauvin: (01:48:57)
You need to take a seat right now.
George Floyd: (01:48:57)
And I just had COVID, man. I don’t want to go through that.
Officer Chauvin: (01:49:01)
Okay. I’ll roll the windows down. Hey, listen.
George Floyd: (01:49:02)
Officer Chauvin: (01:49:03)
George Floyd: (01:49:03)
I’m not that kind of guy.
Officer Chauvin: (01:49:05)
I’ll roll the windows down if you put your legs in, all right? I’ll put the air on. [crosstalk 01:49:10].
Speaker 15: (01:49:09)
He’s not even listening.
Eric Nelson: (01:49:12)
I’ll roll the window down three times. I’ll turn on the air conditioning. Is that evidence of intent to apply unlawful force? Officer Chauvin confirms that Mr. Floyd is under arrest.
George Floyd: (01:49:26)
Officer Chauvin: (01:49:26)
So you’re going to jail? He’s under arrest right now for forgery. Trying to figure out what’s going on here.
George Floyd: (01:49:36)
Forgery of what? For what? Please, man-
Eric Nelson: (01:49:40)
Officer Chauvin made a decision not to use higher levels of force when he would have been authorized to do that, including punches, kicks, elbows. All of these tools were available to Officer Chauvin. That is not an intent to purposefully use unlawful force.
Eric Nelson: (01:50:02)
They call for EMS within one minute of putting him on the ground. They step it up within another minute and a half. Officer Chauvin believes that Mr. Floyd’s ability to speak means he can breathe and they say it repeatedly. Remember?They tell him to relax.
Officer Chauvin: (01:50:36)
You’re under arrest, guy.
George Floyd: (01:50:37)
All right. Oh my god. [crosstalk 01:50:40].
Eric Nelson: (01:50:41)
Officer Chauvin is never swearing at him. He’s not calling him names. All of this stuff that we’ve already talked about, and I don’t need to go through this again, all of this stuff that we’ve talked about throughout the entirety of this circumstance does not reflect an intent to purposefully, intentionally commit an unlawful use of force. All of the evidence shows that Mr. Chauvin thought he was following his training, he was in fact following his training, he was following Minneapolis Police Department policies. He was trained this way. It all demonstrates a lack of intent.
Eric Nelson: (01:51:29)
There is absolutely no evidence that Officer Chauvin intentionally, purposefully applied unlawful force. Officer Chauvin is also refocusing the other officers, telling them they need to do things to pay attention to Mr. Floyd.
Officer Chauvin: (01:52:05)
Eric Nelson: (01:52:05)
Should I put his stuff in the car? No, we need to get him in the ambulance. Let’s refocus. All right. Officer Chauvin had no intent, he did not purposefully use unlawful force. These are officers doing their job in a highly stressful situation. According to their training, according to the policies of the Minneapolis Police Department, and it’s tragic. It’s tragic.
Eric Nelson: (01:53:08)
They go to the hospital. They perform CPR. They call their supervisors. Was this an eminently dangerous act? Was putting Mr. Floyd in an eminently dangerous act? We’ve heard a lot about the prone position. Consider just the basic prone position. People sleep in the prone position. People suntan in the prone position. People get massages in the prone position. The prone position in and of itself is not an inherently dangerous act. It is not an inherently dangerous act. A prone position during restraint is not an inherently dangerous act. It is routinely trained and used by the Minneapolis Police Department.
Eric Nelson: (01:54:09)
The Canadian studies that were referenced by Dr. Fowler, 1,269 cases use of force, one death of a person not in the prone position. They’re looking at people in the prone position. 4,828 consecutive force events, no significant clinical effects on the subject’s physiology. We can look at all of the other studies. Trying to determine this question, is putting a subject in the prone position, even with officers on top, even with weight on top of the person, is that inherently dangerous? And the research says no, the practical experience says no. The prone position when applied through a use of force is not an imminently dangerous act because there is no evidence to support the notion that it was highly likely, that’s the standard, highly likely to cause death. There’s reasonable doubt about that.
Eric Nelson: (01:55:22)
So let’s talk about the cause of death. And again, I’m sorry to be long-winded but I have to address the cause of death because the state neglected to read perhaps one of the most important sentences from the instruction and why you must read the instruction carefully. Yes, the defendant is criminally liable for all of the consequences of his actions that occur in the ordinary and natural course of events, including those consequences brought about by one or more intervening causes if such intervening causes were the natural result of the defendant’s act.
Eric Nelson: (01:56:12)
So if the intervening causes were the natural consequences of the defendant’s acts, he’s liable. So think about it in this example. Police officer arrests somebody. He puts that person on a hot August afternoon in the backseat of a squad car, rolls up the window, turns on the heat, and leaves the person in there. Person dies of a heat stroke. Officer put him in there and is responsible for the natural consequences of his actions. But consider the situation where police officer arrests someone, they’re compliant, they go into the back seat of the squad car, they’re sitting in the back seat of the squad car and they have a heart attack. They have a pulmonary embolism. They have a brain aneurysm. Something happens to that person that was not the natural consequence of being arrested. It was just a physiological, something that happened to that individual. The officer’s not liable because it’s not in the natural course of events and it’s not the natural result of the defendant’s act. So again, read the entire instruction.
Eric Nelson: (01:57:35)
The significance of this instruction again is that it goes through all of the three charges. You have to be convinced that the defendant’s actions caused the death of Mr. Floyd. And throughout the course of this trial, the state has tried and called numerous witnesses to try to convince you that asphyxiation is the singular cause of death, the singular cause of death. And why is that? It’s because actions that happened before Mr. Floyd was arrested that had nothing to do with Officer Chauvin’s activities are not the natural consequences of the defendants’ actions.
Eric Nelson: (01:58:34)
You have to focus on the consequence of the defendant’s acts. And so the state has tried to convince you beyond a reasonable doubt that the stress of being arrested and the adrenaline produced as a result of Mr. Floyd’s physical resistance played no role. This is what they have to try to convince you. There’s no role of that. Physical exertion played no role in this death.
Eric Nelson: (01:59:04)
They’re trying to convince you beyond a reasonable doubt that Mr. Floyd’s heart disease played no role in this case. The state must trying to convince you beyond a reasonable doubt that Mr. Floyd’s history of hypertension played absolutely no role in the cause of Mr. Floyd’s death. The statements convince you beyond a reasonable doubt that Mr. Floyd was not experiencing excited delirium that contributed to the cause of his death. The state has to convince you beyond a reasonable doubt that Mr. Floyd’s paraganglioma was not contributing to the cause of death. The state must convince you beyond reasonable doubt that Mr. Floyd’s toxicology played no role in his death.
Eric Nelson: (01:59:57)
The state would have to convince you beyond a reasonable doubt that a combination of these preexisting issues did not contribute to Mr. Floyd’s death. That is why the state has brought in expert after expert after expert to testify that the singular cause of death, the singular cause of death here is asphyxiation. Because if Mr. Floyd was asphyxiated as a result of the police restraint, he is liable for the natural consequences of that restraint of his actions. But if any of these other factors come into it, if any of these other factors were substantial contributing factors of Mr. Floyd’s death, because they were not the natural result of the restraint. If a person has drugs in their system, and that drug causes an overdose, in the context of the police restraint, that’s not the natural consequence of the restraint. It’s the natural consequence of the deceased’s actions.
Eric Nelson: (02:01:17)
So the state has called six experts. Really five, but I will include Dr. Baker. The state first called Dr. Tobin, a pulmonologist. Dr. Tobin said that you need to apply common sense to the evaluation of the medical testimony. He testified that Mr. Floyd died exclusively from positional asphyxia. Coronary artery disease, hypertension, controlled substances, they played absolutely no role in the death according to Dr. Tobin. State called Dr. Isenschmid, a toxicologist to explain to you that Mr. Floyd’s toxicological levels were somehow more consistent with a DWI case and a whole bunch of other cases that may or may not have involved an overdose. Remember the ratio where he said, “Well, no, They may have died of something else. They may have died of a gunshot wound, but they had fentanyl in their system.” So he gave you these strange statistics, but essentially attempting to try to convince you that these levels are insignificant. People drive their cars around and that therefore the drugs played no role in the death of Mr. Floyd.
Eric Nelson: (02:02:40)
Third, the state called Dr. Smock, an emergency room physician, to explain to you that Mr. Floyd was not experiencing any symptoms of excited delirium and that coronary artery disease, hypertension, controlled substances, none of that comes into play. He called Dr. Thomas, a pathologist, to testify how she interpreted what Dr. Baker meant, how she concluded that Dr. Baker simply said that the cardiopulmonary arrest is the basic way everybody dies. And she interpreted the reason why Dr. Baker put those factors on his autopsy or on the death certificate were merely for statistical purposes. The CDC requires us to put that stuff on there. And it was an asphyxial death, controlled substances played no role, hypertension played no role, coronary artery disease played no role.
Eric Nelson: (02:03:50)
They did call Dr. Baker, and we’ll talk about Dr. Baker in a minute. And finally, the state called Dr. Rich, a cardiologist who concluded that despite a 90% narrowing of the right coronary artery and a 75% narrowing-
Eric Nelson: (02:04:03)
The narrowing of the right coronary artery and a 75% narrowing in the left anterior descending artery despite an enlarged heart and a history of hypertension that Mr. Floyd had a strong heart. And that none of those preexisting and coexisting conditions in any way contributed to the death of Mr. Floyd. I submit to you that the testimonies of Dr. Tobin, Dr. [Issenschmidt 02:21:13], Thomas and Rich, it flies in the absolute face of reason and common sense. It’s astounding, especially when you consider the actual findings of Dr. Baker, right? Because Dr. Baker is the only person who actually performed the autopsy in this case. He’s the only person who performed the actual autopsy. He told you that he specifically avoided watching the video because he didn’t want to bias or influence his autopsy.
Eric Nelson: (02:05:15)
He specifically testified that there was no evidence of asphyxia. There were no evidence of petechial hemorrhaging. There was no bruising to the neck or back above the skin, under the skin or into the subcutaneous muscles of the neck and back. And he would expect to see those things in a case like this. There was no finding that pressure was applied to the point [inaudible 02:05:46] to cause these injuries. There were no injuries to the structures of his neck and that when he finally did review the video, it didn’t appear that the placement of the knee affected the structures of the neck because Mr. Floyd could lift up his head, turn his head, move it around. He saw no fractures to the structures of the neck, including the hyoid bone. There were no soft tissue injuries to the sides of Mr. Floyd’s neck.
Eric Nelson: (02:06:12)
There was no hemorrhaging or injury to the hypopharynx. No evidence of life threatening injury to the neck or spinal column of Mr. Ford. There was pulmonary edema, which is the swelling of the lungs, which could be caused by the resuscitative efforts or fentanyl. There’s no evidence of hypoxic changes to the brain. There’s no evidence of any brain injury consistent with an asphyxia death. He found a pair of paraganglioma and he said it was an incidental finding. He said his heart was enlarged. Mr. Floyd’s heart was enlarged, right? Dr. Baker, Dr. Thomas, Dr. Rich, Dr. Fowler all agreed. He found narrowing of the right coronary artery, 90% narrowing. He found 75% narrowing of the left anterior descending artery. He’s the person who sent out the toxicology samples. Fentanyl level at 11 nanograms per milliliter.
Eric Nelson: (02:07:23)
Methamphetamine at 0.19 per millimeter. All of these findings that are ultimately relied upon by all of these other experts were done by Dr. Baker. He determined that the manner of death was a homicide, right? Homicide, homicide, homicide but read the definition again of the medical definition of homicide. “It is to be emphasized that the classification of homicide for the purposes of the death certificate is a neutral term and neither indicates nor implies criminal intent, which remains a determination within the province of the legal processes.” The fact that he found this, a homicide is a medical term. Dr. Fowler talked about the undetermined manner. “Could not be determined is a classification used when the information pointing to one manner of death is no more compelling than one or more other competing manners of death in or through consideration of all available information.”
Eric Nelson: (02:08:35)
Dr. Baker found the immediate cause of death and the other contributing factors. Cardiopulmonary arrest, complicating law enforcements subdual, neck restraint and neck compression. Other contributing factors are arteriosclerotic and hypertensive heart disease, fentanyl intoxication, and recent methamphetamine use. The term complicating in this is important because Dr. Baker was able to give you what he said his actual intent was, right? Dr. Thomas speculated about what she thought Dr. Baker meant. Dr. Baker was able to tell you what he meant. He defined complicating as “An intervention occurred, and there was an untoward outcome on the heels of that intervention.” And he gave you a specific example. He described a person having a hip surgery and a blood clot comes loose, and that blood clot causes a death.
Eric Nelson: (02:09:42)
The hip surgery didn’t cause the death, the death was caused by the blood clot that complicated the surgery. So as I understand his testimony, what Dr. Baker was saying was that there was an unexpected result. The death of Mr. Floyd occurred during an event where you would not generally expect such a complication. Subdual and restraint. He specifically testified, Dr. Baker specifically testified that if he put it on the death certificate it played a role in the death. If something is insignificant to death, you don’t put it on the death certificate. So Dr. Baker’s conclusions that Mr. Floyd’s arteriosclerotic and hypertensive disease played a role in the death of Mr. Floyd. Dr. Baker concluded that Mr. Floyd’s fentanyl intoxication played a role.
Eric Nelson: (02:10:50)
Dr. Baker concluded that Mr. Floyd’s recent methamphetamine use played a role, right? Dr. Baker described that this death of Mr. Floyd was a multifactorial process. A multifactorial process is how he defined it. No single factor, one over the other played any more of a role resulting in Mr. Floyd’s death. He said, “His heart simply couldn’t handle it,” within the context of the subdual and restraint. Apparently the State, as they just argued, wants you to believe what you see and they did not like Dr. Baker’s conclusions. And you can see the process Dr. Baker talked about when he had several meetings, right? This happened in May, June, July by August. Talk to a pulmonologist, talk to an emergency room doctor, not within my area of expertise, talk to a cardiologist, right?
Eric Nelson: (02:12:22)
His findings didn’t support the notion that what you see is what you should believe. And so, the State did that. They went and hired Dr. Tobin, all right? A pulmonologist. Now, despite all of the information that Dr. Baker has concluded or found during the actual autopsy, Dr. Tobin concluded emphatically that Mr. Floyd’s death was the result of position asphyxia, right? Pressure of the asphalt, the pressure of the weight of the officer’s positions, all of this resulted in hypoxia, low oxygen to the brain, Mr. Floyd was asphyxiated through positional asphyxia. Remember at the beginning of my remarks I asked you to perform an honest assessment of all of the evidence in the case. And I’m going to submit to you that with no other witness, should this be more carefully analyzed. I want to illustrate two brief things that Dr. Tobin testified about and I want to illustrate how I think that these demonstrate a bias, because you still have to consider an expert witness in the context of bias. I’m going to call it the finger and knuckle testimony and the toe lifting testimony. You may remember this slide, right? That this slide shows George Floyd pushing his fingers against the street to lift his shoulder off the street, that he was pushing his knuckles against the tire. He described what he interpreted this was basically Mr. Floyd trying to push himself up onto his left side to free the right lung to help him breathe. Look at the timestamp of the photos taken from the body worn camera here.
Eric Nelson: (02:14:36)
They were taken at 8:19:35, 15 seconds after Mr. Floyd was placed on the ground. Dr. Tobin also explained that Mr. Floyd went on to breathe for an additional 5 minutes and 51 seconds until he took his last breath at 8:25. He neglects the fact that at this point, this is the point that we just saw when Mr. Floyd is taken out of the car and he is actually in the side recovery position for about the first two minutes of this 9 minutes and 29 seconds.
Speaker 16: (02:15:23)
George Floyd: (02:15:25)
Mama, mama, Mama.
Speaker 16: (02:15:29)
It’s in one of the front pouches on my right side bag.
George Floyd: (02:15:34)
Mama, mama, mama. All right. Oh my God. I can’t breathe. I can’t breathe. I can’t breathe, man. Mama, I love you. [inaudible 02:16:04] I love you. I can’t breathe [inaudible 02:16:04]. Mama, I can’t do nothing.
Speaker 17: (02:16:15)
Yeah, EMS is on their way.
George Floyd: (02:16:16)
My face is gone. I can’t breathe, man. Please, please let me [inaudible 02:16:30].
Speaker 18: (02:16:30)
George Floyd: (02:16:30)
Please, man. I can’t breathe.
Speaker 17: (02:16:30)
Can you get up on the sidewalk please? [inaudible 02:16:33].
George Floyd: (02:16:34)
My face is [inaudible 02:16:36].
Speaker 17: (02:16:36)
Should we get his legs up?
Speaker 16: (02:16:37)
Nope, just leave him.
Speaker 17: (02:16:40)
All right. [inaudible 02:16:45].
George Floyd: (02:16:45)
Eric Nelson: (02:16:48)
This illustrates how you can take a single nanosecond of time in this arrest. You can have this testimony that he’s pushing his body up to try to breathe, right? But when you look at the evidence compared to the rest of the evidence, what do you really see? You see a person who is on his side, being held in the side recovery position, whose hand is touching the ground and the tire at times, you cannot take a single isolated frame and reach any conclusions because much like the use of force, cause of death has to be considered within the totality of the circumstances. And then you may remember this testimony. This is officer Chauvin’s foot off the ground. And he described how at this precise moment, officer Chauvin was applying 91.5 pounds of pressure to the neck of Mr. Floyd. So let’s look at this time in the context of the other evidence.
Speaker 19: (02:18:13)
Why are you just sitting there? He ain’t doing nothing.
George Floyd: (02:18:17)
Don’t kill me.
Speaker 20: (02:18:17)
How long y’all got to hold him down?
Speaker 21: (02:18:19)
Don’t do drugs kids.
Speaker 19: (02:18:20)
It ain’t about drugs bro.
Eric Nelson: (02:18:24)
Did anybody even see the toe come up off the ground? I mean, was it half a second, a quarter of a second? But when you take a single incident, a frame, a single frame and you add the drama and you make all of the assumptions, right? Officer Chauvin’s body weight, Mr. Floyd’s EELV, he’s the only person who calculated the EELV based upon the presumptions of health, based upon studies, based upon theory. All of this information, you can put this into a single frame. But you have to analyze the evidence in the broader context. You can also see during the clip that officer Chauvin actually is adjusted forward and touches this car, right? You can make a lot of informed decisions about how is he shifted. If I’m shifting my weight this way, the majority of my weight shifting on my left foot.
Eric Nelson: (02:19:37)
If I’m this way, it’s on my right foot. You watch this video and you can see the dynamic shifting, and you can see the placement of the toes, right? The toe tucked under helps an officer maintain his weight or helps any person maintain their weight, but a toe flopped over to the side, it’s a little harder to balance. You cannot take a single frame and draw conclusions, you have to look at the totality. And remember, he said he spent 150 hours analyzing this tape. His entire testimony is filled with theory, speculation, assumption. Do not let yourselves be misled by a single still frame image. Put the evidence in its proper context. We have to talk about the toxicology. Again, I’m not suggesting that this was an overdose death, right? It’s a multifactorial process as Dr. Baker said.
Eric Nelson: (02:21:00)
So we have to look at what role does the toxicology play in this case? Because again, we had Dr. Issenschmidt who testified that he found that the levels of fentanyl and methamphetamine were more consistent with this DUI population. But what do we know about the actual toxicology? Where 11 nanograms per milliliter of fentanyl and 0.19 nanograms of methamphetamine. Those are the principle two findings. And additionally, what we know is that the by product of methamphetamine, which is amphetamine, was not reported at the levels. Doesn’t mean wasn’t technically there, but it was not reported. So it’s below threshold reporting values, which signifies that the methamphetamine use was recent. Hence, in Dr. Baker’s death certificate, he included the recent methamphetamine use because there was no amphetamine.
Eric Nelson: (02:22:18)
The history of Mr. Floyd’s use of controlled substances it is significant. It’s not a character problem. Millions of Americans suffer from the opioid crisis, right? I mean, it is a true crisis that this country is facing, but it is significant to understand the history, not just as much as the longterm history, but his longterm history provides us with insight on how his body physically reacts to methamphetamine or opioid use, I should say, opioid use within the context of a law enforcement encounter. We know from the testimony of Courtney Ross that Mr. Floyd struggled. We know he had been using controlled substances habitually for some time. We know that on May 6th of 2019 during an encounter with the police, Mr. Floyd ingested some controlled substances, said they were percosets.
Eric Nelson: (02:23:26)
He was startled by the police, like he wasn’t in this case, officer drew his gun in that case too. And that resulted in a blood pressure of 216 over 160. I mean, that’s not just high, that is skyrocketing high. We know for Ms. Ross, that in March 2020, they purchased some pills that were supposed to be percosets, an opioid. But they were clearly knockoffs, she described that. They were clearly knockoffs. She described how those pills made her feel. They kept her up all night, right? The introduction of the methamphetamine. We I know from Ms. Ross, that in March 2020, Mr. Floyd was seen for a drug overdose. She described how he felt in that instance. She said his whole body hurt. His stomach hurt. We know, based on again, from Ms. Ross, that he was clean and sober for some time while they were in quarantine.
Eric Nelson: (02:24:38)
We know that Ms. Ross, again, described taking about a week before a similar pill to the one that they had back in March. It kept her up again all night, right? She said she felt like she was going to die. We know again from Ms. Ross, that those pills were purchased from Maurice Hall. She described going to a hotel. While Mr. Floyd went into the hotel, she was on the phone with him. She heard Maurice Hall’s voice. We know Mr. Floyd was with Maurice Hall on May 25th, 2020. We heard from the store clerk, Christopher Martin, he described Mr. Floyd as being high. His responses were delayed, right? He may have been standing around, he may have been standing up. He may have been able to have communications, but Mr. Martin clearly described him as being high.
Eric Nelson: (02:25:45)
We heard from Shawanda Hill that when they got back into the car, they had a conversation for a few minutes and suddenly Mr. Floyd fell asleep. All of these things become important. That he had trouble. They had trouble waking him up. She called her daughter for a ride because they couldn’t wake Mr. Floyd up, they couldn’t keep them awake. You heard how Mr. Martin described Mr. Floyd when he went back to the car and how he was, uh, no. He wasn’t speaking, right? But he kept putting his head back and shaking his head. We know from Peter Chang’s body worn camera that Maurice Hall also described that Mr. Floyd was dozing off.
Speaker 22: (02:26:39)
Because he was falling asleep [inaudible 02:26:43].
Eric Nelson: (02:26:46)
We know that whether Mr. Floyd was chewing gum while he was in the store, we can also see he was eating a banana. He bought a banana. So we know when we look at this picture there’s something in Mr. Floyd’s mouth. Is it gum? Is it banana? Is it drugs? Nobody knows, all right? But regardless of whether it’s drugs, bananas, or gum in this incident, we know that there were pills in the car. We know that there were drugs in the car. We know those pills were later tested to be a combination of methamphetamine and fentanyl. That’s what was in Mr. Floyd’s system. It’s relevant because it’s what was in his system. These are the pills that were found. We know at some point, Mr. Floyd was handcuffed, his hands were behind his back, it would have been physically impossible to put anything in his mouth at that point.
Eric Nelson: (02:28:55)
And we know that in the squad car, 320, were pills. We know those pills were analyzed. We know those pills consisted of fentanyl and methamphetamine. We know that Mr. Floyd’s salivary DNA was found on those pills. How much fentanyl does it take to kill? This is from the Minneapolis Police Department stream, approximately two to three milligrams. Smaller than a penny. This is from the squad car. You can look at these pictures closely during the course of your evidence. There is a video Mr. Floyd when Mr. Floyd is being subdued and restrained by the police. Mr. Maurice Hall reaches into his bag, he’s looking through the windows, we watched it and then he throws something, all right? We know that Mr. Floyd had drugs in his mouth, we know that some percentage of that would have been consumed and absorbed into his system.
Eric Nelson: (02:30:37)
We don’t know how much he took before, right? We don’t know when he took an earlier dose in relation because fentanyl had actually started to metabolize, so fentanyl was longer before. For the medical experts to minimize the timing and the amount of illicit drugs that were found in Mr. Floyd’s bloodstream is just simply incredible to me. It is incredible to me. Every single doctor testified that relevant that the absence of signs of fentanyl overdose weren’t present because he was alert, he was talking, but it ignores what Shawanda Hill and Maurice Hall says, right? That he was all of a sudden asleep and difficult to wake up. It ignores the fact that the combination of these two drugs, methamphetamine is a powerful stimulant.
Eric Nelson: (02:31:48)
Fentanyl is a powerful sedative. They use it for surgeries. Every single doctor dismissed outright, no, no, nothing about this case. Well, it was only 0.19 nanograms per milliliter. It’s such a small amount of methamphetamine in his system. It’s a vasoconstrictor, it causes the heart’s arteries to constrict even tighter. Doesn’t matter. Every single doctor just brushed it aside, said it would have no effect. I ask, would any of those doctors prescribe elicit methamphetamine to their patients? Would they give it to their children? Would they give it to their elderly parents with a 90% blockage of the right coronary artery? I guarantee you the answer is no.