The Derek Chauvin Trial — Day 12

Editor’s Note: See our coverage of the first day of the trial here, the second day here, and the third day here, the fourth day here, the fifth day here, the sixth day here, the seventh day here, the eighth day here, the ninth day here, the tenth day here, and the eleventh day here.

Today the defense began its case in chief. The morning started out well, but the afternoon ended badly.

Retired MPD officer Scott Creighton was the first witness. Derek Chauvin’s defense lawyer, Eric Nelson, asked Mr. Creighton questions about an arrest he made on May 6, 2019, when he stopped a car with George Floyd inside.

Mr. Creighton approached the car from the passenger side. The window was down and he gave some commands, but Floyd would not do what he was told.

The defense played Mr. Creighton’s body camera footage from that 2019 arrest. Floyd begged not to be shot, just as he did when he was arrested in May 2020. The officer said he would not shoot, but Floyd did not keep his hands visible, so the officer threatened to use the taser on him. One of the police officers is heard asking Floyd to spit out what’s in his mouth.

On cross-examination, prosecutor Erin Eldridge asked if Floyd had been awake, conscious, and not in medical distress. He replied that Floyd had been “incoherent.” “Mr. Floyd didn’t drop dead while you were interacting with him?” Eldridge asked. Mr. Creighton said, “No,” and was excused.

The next witness was Michelle Monseng, a retired Hennepin County paramedic, who had dealt with George Floyd after the 2019 arrest. When she arrived, he was upset and confused. She said it was hard to evaluate him.

Floyd told her he had been taking Percocet pills, seven to 10 at a time, every 20 minutes. She thought his agitated state was inconsistent with taking opioids. Floyd also told her he had taken a pill when the officers arrested him. Miss Monseng asked Floyd why he was taking all of these pills and he said he was addicted.

Miss Monseng found that Floyd’s blood pressure was 216 over 160, a very high reading, which could easily lead to a stroke. Floyd told her he had a history of high blood pressure but he had not been taking his medicine. She told him he should go to the hospital, but he did not want to go. “It was hard to tell exactly what he was upset about,” Miss Monseng said.

On cross-examination, Miss Eldridge asked if Miss Monseng had given Floyd Narcam, which is used to treat narcotic overdoses. She replied that Floyd’s respiration, blood oxygen, and heart rate were normal, so she did not. Miss Eldridge asked, “He obeyed commands?” “Eventually,” Miss Monseng said, with a laugh.

The next witness was a black woman, Shawanda Hill. She kept fidgeting and adjusting her burgundy wig as Judge Peter Cahill spoke to her before the jury was called back in. He asked her if she would be willing to say whether she was under the influence on the day Floyd died. He told her he did not think that would open her to criminal liability, and said she could talk to a lawyer. She said that was not necessary and agreed to testify.

When the jury returned, Miss Hill said she ran into Floyd — on police cam video she called him her “ex” — at Cup Foods that day. She said Floyd’s behavior was normal and he offered to give her a ride, so she got in the car with him. She got a phone call from her daughter, and Floyd fell asleep. When Cup Foods personnel came to the car to talk about the counterfeit $20 bill, he was asleep. Miss Hill said, “They tried to wake him up over and over . . . he woke up, made a little gesture, and nodded back off.” She gave up on the idea of getting a ride home and called her daughter to come get her.

Asked if this was a sudden change from his condition in the store, Miss Hill said that Floyd had told her he was tired when they were in the store. Miss Hill kept trying to wake Floyd up. Mr. Nelson asked her if the store employees came back a second time, and she said no. Earlier in the trial, there was video and testimony that showed store employees went to Floyd’s car twice.

When Mr. Nelson said, “No further questions,” Miss Hill’s mouth dropped open in surprise. Then she looked angry. She seemed like she was high. As prosecutor Matthew Frank cross-examined her, she interrupted him, and when he said they shouldn’t talk over each other, she rolled her eyes.

Miss Hill said that Floyd was not always coherent when she tried to talk to him that day. When the police came over, she tried to wake him up:

I said, ‘Floyd the police is here, it’s about the twenty-dollar bill wasn’t real.’ I kept saying, ‘Baby, get up.’ And so we looked, we looked to the right, and the police tapped on the window with a flashlight. And I said ‘Floyd!’ He was like, ‘What? What?’ And I was like, ‘Baby, that’s the police. Open the door. Roll down the window. Whatever he tell you to do.’ So he looked back, and he seen the man, the man with the gun at the window. And he instantly grabbed the wheel, and he’s like, ‘Please, please, don’t kill me. Please, please, don’t shoot me.” . . . And I’m like, ‘Floyd, Baby . . . .

“Did he seem startled when the officer pulled a gun on him?” Mr. Frank asked. “Very.”

Next on the stand was Peter Chang, an officer with the Minneapolis Park Police. Although the park police and city police are separate branches, they get the same training and attend the same academy. Mr. Chang was at a nearby park when he heard dispatch asking for assistance for squad-car 320. It is common for the park police to help city police.

When he got to Cup Foods, one of the officers told him they were “Code 4,” meaning the scene was safe. Floyd was in handcuffs, sitting on the sidewalk and leaning against the wall. Officer Alexander Kueng asked Mr. Chang to identify the suspect. After Mr. Chang identified Floyd on the computer in his car, he saw Officer Kueng and Officer Thomas Lane trying to pin Floyd against the squad car. He wanted to help, but Officer Lane asked him to go watch Floyd’s car.

When Mr. Chang approached the car, the two passengers were on the sidewalk, trying to reach inside the car, but he told them not to. Squad-car 330 arrived and parked in front of Floyd’s SUV, and Mr. Chang directed the officers to where Officers Kueng and Lane were struggling with Floyd. Mr. Chang’s main focus was the car and the two people who had been detained beside it. He noticed a crowd becoming loud and aggressive, and he “became concerned for the officers’ safety.” The voices got louder and he said bystanders were “very aggressive.” He did not help the officers because he had been told to watch the car, and he did not know if the car had been searched.

The defense played Mr. Chang’s body camera footage, which corroborated what he said on the stand. When Miss Hill notices Floyd struggling with the police, she is surprised. “Man, he still won’t get in the car. Just sit down, dude! What’s he doing? Now he’s going to jail.” At one point in the video, Mr. Chang asks Morries Hill what his name is, and Hill gives the name “William Ricardo.” Hill also says that Floyd had been falling asleep.

Traffic noise is very loud on Mr. Chang’s body camera, but two of the prosecution’s witnesses, bouncer Donald Williams and firefighter Genevieve Hansen, can be heard shouting in the background. Their voices alarm Miss Hill and Mr. Hall, who move over to get a better view of what is going on.

Officer Chang tells them to stay put. “You don’t want to get involved in that.” He also tells them that an ambulance was called, explaining that Floyd “might have hurt himself.”

Miss Hill goes to the street corner and shouts, “He on the ground and everything!” When the ambulance arrives, she asks why Floyd is going to the hospital, and says Floyd might need his phone, which is in the car. Mr. Chang keeps them away from the car, and tells Miss Hill that Floyd won’t need his phone because he is “gone.” When he tells her a second time, he says that Floyd is “gone, off to the hospital.”

Charles McMillian, a 61-year-old bystander who urged Floyd to cooperate with police, is seen going over to Miss Hill and telling her, “They f***ed him up.” He then tells Miss Hill that someone had a knee “on his back.”

The next witness was Nicole MacKenzie, a police officer who testified for the prosecution but was now called for the defense. Miss MacKenzie is the medical coordinator for the MPD, and she trains officers on medical topics, including “excited delirium.” Officer Thomas Lane attended this training, and during the Floyd arrest is heard on body cam video wondering whether Floyd had excited delirium.

Miss MacKenzie explained that it is a combination of things. It can be caused by drugs, a mental health problem, or cardiovascular disease. Officers are taught an acronym, NOT A CRIME, to help identify it:

  • Naked Hyperthermia: Heavy sweating; people tend to take off their clothes to cool down.
  • Objects: Violence directed at objects; people smash things.
  • Tough: They seem unstoppable and have “superhuman strength”
  • Acute: Rapid onset; people will say they “just snapped.”
  • Confused: Rapid speech.
  • Resistance: Against the police.
  • Incoherent: They talk nonsense.
  • Mental: It’s a mental-health emergency.
  • EMS: Paramedic should be called right away.

Miss MacKenzie said that if an officer suspects excited delirium, he needs to use restraint and to call for help from other officers. People with excited delirium can go into cardiac arrest; she teaches officers to put a person on his side for recovery. The defense has argued that it may have been reasonable to think Floyd had excited delirium and that this justified Mr. Chauvin’s use of force.

After lunch, Mr. Nelson called Barry Brodd, a use-of-force consultant. Mr. Brodd originally offered his services to the City of Minneapolis, but they did not retain him, so the defense did, for a fee of $350 per hour. He had already been paid $11,400 before taking the stand.

He said that after examining the evidence, “I felt that Derek Chauvin was justified, was acting with objective reasonableness, following Minneapolis police department policy, and current standards of law enforcement.”

Mr. Brodd said that he focuses on whether the officer had a legal authority for the detention, what level of resistance the police officer is dealing with, and whether the officer’s use of force is proportional to the resistance. He said officers don’t have to fight fair; they can go up a level in force to get control. If someone hits a police officer, he does not have to fight back with his fists; he is allowed to use his taser or gun.

Mr. Brodd did not think Mr. Chauvin had used deadly force. To explain why, he said that if an officer responds to a call and the suspect fights with the officers, the officer is justified in using a taser to overcome non-compliance. If that causes the suspect to fall, hit his head, and die, then the death is accidental and not a result of using deadly force.

Mr. Brodd testified that he teaches officers to use extra caution when dealing with people on drugs, because “they may go from compliance to noncompliance in a heartbeat.” He said he trains officers to keep drugged-up suspects handcuffed. “There have been instances where handcuffs are removed, and medical assistance is given, and the person is right back to fighting you and you’re in a fight for your life.”

Mr. Brodd said that he does not consider it use-of-force to put someone face down in what is called “prone control.” He said officers are trained that it is safer to put a suspect on the ground. It limits what he can do with his hands and feet, and gives the officer more time to react. He said that since Floyd kicked at Mr. Lane when they put him on the ground, the officers would have been justified in using a hobble to tie up his legs, but they chose not to use it.

Mr. Brodd also said that prone control is helpful in dealing with a suspect on drugs, because it will keep him from getting hurt trying to escape, and will stop him from choking if he vomits. “It doesn’t hurt and you’re using minimal effort to keep them on the ground.” He also said that from the videos he could see that the menacing crowd was distracting Mr. Chauvin.

Mr. Frank began his cross-examination by asking if we are to believe that being made to lie handcuffed and face down on a hard street was not use of force. Incredibly, Mr. Brodd said it was not. The prosecution reminded Mr. Brodd he had said that “prone control” does not hurt and then asked, “If the prone position would inflict pain, would that change your opinion on whether this was use of force?”

Mr. Brodd answered, “Only if the positioning of the body, or if the officers were manipulating Mr. Floyd’s hands in a way that would create pain, then yes, I would say that would be use of force.” More than one witness had already used video screen shots to show that Mr. Chauvin was pressing down on Floyd’s hands in a way that deliberately causes pain.

“If Floyd experienced pain,” Mr. Frank asked, “Is that use-of-force?” Mr. Brodd answered, “If the pain was inflicted through the prone control, that would be use of force.”

Mr. Frank showed a screenshot from a bystander video that shows Mr. Chauvin in the worst possible light. Floyd is unconscious and Mr. Chauvin seems to have a hand in his pocket with his knee on Floyd’s neck. Mr. Frank asked if Mr. Chauvin was “on top of” Floyd, and after some disagreement about what “on top” meant, Mr. Brodd gave up and agreed that they could say he was “on top.”

Mr. Frank said that both of Mr. Chauvin’s knees were on Floyd, and he asked if Mr. Chauvin’s 140-pound body weight plus the weight of his uniform and equipment could cause pain. Brodd answered, “It depends on the intent of the officer,” but ultimately gave in again and said that Mr. Chauvin’s position on Floyd could produce pain and could therefore be use-of-force.

When Mr. Frank asked about positional asphyxia, Mr. Brodd said that positional asphyxia is a risk if you are obese, but he acknowledged that someone pressing down on you could contribute to positional asphyxia.

Mr. Frank asked about the side-recovery position. Mr. Brodd had tried to say there wasn’t enough space for Mr. Chauvin to put Floyd in that position, but Mr. Frank played body cam footage that showed Floyd briefly on his side with his legs tucked up, even while he was resisting on the ground.

When Mr. Frank asked Mr. Brodd about the autopsy report, Mr. Brodd said he hadn’t read it.

Mr. Brodd said that Mr. Chauvin did not have his weight entirely on Floyd, because Mr. Chauvin had shifted his weight more onto his calves. Mr. Frank asked if Mr. Brodd had a specific moment in the video he could point to where that happens. Mr. Brodd said that he would have to look at the screenshots from the videos. Mr. Frank shuffled through his papers and pulled up the photo where Mr. Chauvin’s toe is off the ground. The toe not touching the ground was circled in red.

Mr. Brodd tried to argue that Floyd’s movement could have shifted Mr. Chauvin’s toe off the ground, but he had no photo to back this up. This was an example of what the prosecution did often: take a single moment from the arrest and get Mr. Brodd to agree that it could have been typical of the entire time Floyd was restrained.

Mr. Nelson played the video of Mr. Lane suggesting that Floyd be put in the side recovery position and Mr. Chauvin saying, “Not yet.” Mr. Brodd admitted that Floyd had become compliant by then. Mr. Frank asked Mr. Brood what a compliant person would look like. He replied that a compliant person would be “resting comfortably with his hands behind his back.”

“Did you say resting comfortably?!” Mr. Frank asked, “Resting comfortably on the pavement?!”

Mr. Frank badly damaged the credibility of a man who should have been an unshakable witness for the defense. Mr. Nelson did his best on redirect, but never regained his footing.

______

Credit Image: © Pool Video Via Court Tv via ZUMA Wire.

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