Published April 12, 2021

Elie Honig:

From CAFE, this is Third Degree, I’m Elie Honig.

Well, everyone week two of the Derek Chauvin trial was less dramatic, but also more pivotal than week one. Now the opening week, you’ll remember of course, featured a series of compelling, emotional eyewitnesses. Their testimony about what they saw Derek Chauvin do to George Floyd absolutely mattered, of course, but it also, interestingly was largely uncontested. I mean, it’s mostly on video. It’s hard to contest what’s already on video.

But last week, week two, we got into the real heart of the contested matters in this trial. First, whether Derek Chauvin used excessive force and second, whether Derek Chauvin was a substantial medical cause of George Floyd’s death. And last week we saw a parade of police witnesses and experts, and then we saw towards the end of the week, the scientists and the doctors. Not as dramatic as those eyewitnesses, but really more relevant to the disputed decisive issues in this case.

Before we get into those issues, I just want to say again, people have been riveted by this trial across the country and beyond. The response I’ve heard from viewers, listeners, readers, friends, family, strangers has been overwhelming. People really care and are really watching this closely. I think that’s such a good thing. People understand the stakes here and seem to really care about this case and its outcome, and understand how much it means. So now, as we round into week three, let’s catch up on where things stand, and more importantly what lies ahead.

First of all, the process. By and large, we have seen a sound, dignified, orderly process playing out in the courtroom so far. And look, this could have been a circus. Lawyers, you’ll be shocked to learn, sometimes we lawyers showboat. Sometimes we try to self promote, especially when the cameras are rolling, and especially when there’s a national and international audience. Now, I think it’s interesting to remember, the prosecutors objected to there being cameras in the courtroom in this case originally. The judge overruled them. And honestly, when the judge ruled that there would be live video cameras, I worried a bit, because I know how lawyers are. But it turns out all the major players here have really conducted themselves with true dignity and professionalism.

Let me start with the judge. He has created a very healthy courtroom atmosphere. He’s shown himself to be kind and decent, but also firm and in control. And I’ll tell you, when I was practicing as a prosecutor, there were some judges that were just mean. They were tough. They were yellers. They were intimidating. They weren’t great to appear in front of, but they were fine. The ones who used to make me nuts were the judges who could not control their own courtrooms. And believe me, there were a few of those who would let the defense lawyer run rampant, who couldn’t put time limits, who just had no control. This judge has found a very healthy medium there.

Then let’s talk about the defense lawyer, Eric Nelson. I’m going to defend Eric Nelson here. People are criticizing him. They’re saying he’s horrible, he’s obnoxious, how dare he? Really, I disagree with that. First of all, some of the arguments Eric Nelson has made have been weak and have been stretches, no doubt. His demeanor, I think is fine. I guess some people can find it a little bit off putting, but to me, he seems fairly mild.

You should see, by the way, some of these defense lawyers I used to deal with in New York city. You think Eric Nelson is obnoxious or a self-promoter? Oh no. He’s about a 2.5 out of 10 compared to some of the lawyers who practice in New York and New Jersey and elsewhere. He’s really quite mild. And I want to say this, he’s doing his job. He’s professional. He’s businesslike. He’s concise. He’s not dragging out these proceedings just to drag them out. The man has a job to do here. Like it or not. You may hate his client, you may be very well justified in that. But every defendant in our system has a constitutional right to a defense, and to defense by a competent counsel. And I think when you look at the big picture and you step back, you have to acknowledge Eric Nelson has done a perfectly decent and respectable job.

Now the prosecutors. Actually I feel similarly about the prosecutors as I do regarding Eric Nelson. The prosecutors have been professional. If anything, they’ve been understated, in a good way. They’ve been focused. They’re not screaming. They’re not grandstanding. They’re not pounding the podium. It’s been an effective team. And all of them seem to have the same sort of low key matter of fact, but effective presentation. Also importantly, they’re concise. They’re really getting right to the heart of it with the witnesses, getting those witnesses on and off. I’ve seen prosecutors who have put witnesses on the stand for two or three days in a row. Now, different circumstances, but they’re doing a good job here of cutting out the fluff and getting right to the heart of it.

Beyond the main players, we haven’t had any unexpected bombshells. We’ve had no claims of misconduct or jury issues or protracted legal battles, no requests for a mistrial. And all of these things can mar trials. I’ve been on many, many trials where one party or somebody or other has tried to sidetrack it. That has not happened here. This all matters, because we need people to look at this and say, “That was a fair process. That was a sensible process. That was an orderly process.” The verdict is the thing, we all know that, but the process matters too for legitimacy and for public confidence.

So I break the case so far into three parts. First of all, what happened on May 25 outside of Cup Foods. The videos and the witnesses have been clear and compelling on that. Remember that 9:29, that nine minute 29 second video. That is the thing. Defense counsel chipped away here at times, but the facts about Derek Chauvin and George Floyd and what happened that day, are basically undisputed.

Number two is excessive force. Here’s where we get into the defense. I thought this came in really strong for the prosecution. Not perfect, but I’d be satisfied. The prosecution here has basic common sense on its side. You don’t have to know a single thing about police training and policy to see there’s something wrong with a knee on somebody’s neck for 9:29, or five minutes, or 45 seconds when a person is rear handcuffed and face down on the street. The prosecution showed us witness after witness, after witness about this. In fact, I think probably too many witnesses. What do I mean by that? Well, remember we heard from the Chief of Police, from the most senior Lieutenant, from the training officer, that without question Derek Chauvin’s actions were excessive force and violated police training and policy.

But then the prosecutors kept going and going with more and more witnesses. A crisis intervention coordinator, a training on emergency medical services, a use of force instructor, an outside expert from a different police department on the use of force. And there’s a fine line in my book between driving a point home and then diminishing returns. What did any of those witnesses, the later witnesses, give the jury that the Chief and the Lieutenant and the training officer hadn’t already given them? And there’s a downside here. Juries have limited focus and attention, but also on cross examination, Eric Nelson scored some points on these witnesses. He got the EMS trainer to admit that clearing the scene is probably the best move there. He got one of the experts to admit that Floyd was engaged in active resistance, that the officers could have tased George Floyd, that Floyd obviously appeared to be intoxicated. And that quote, “Reasonable minds can differ.” Look, this isn’t huge, but the prosecution, I think, gave away a few points there. It was needless, unforced error.

And finally, there’s causation. Did Derek Chauvin’s actions contribute to the death of George Floyd? The prosecution is off to a very strong start here. The pulmonologist, Dr. Tobin, you remember him with his Irish accent? What a witness. I don’t know that I’ve ever seen a more effective expert witness. He was compelling. He was measured. He was clear. I am confident the jury was rapt by this man. He showed exactly why he was confident that George Floyd died of oxygen deprivation. Frame by frame, movement by movement, he had that jury in his hands. And the cross really went nowhere. Could there be other factors, health, drugs, could they have made it worse? Dr. Tobin said “Maybe. Some yes, some no.”

But legally, understand this is a losing argument because all the prosecution has to show is that Chauvin’s actions were one contributing factor to the death. So even if there were other causes making it worse, Chauvin can still be found guilty. The prosecution does not have to prove that Chauvin’s actions were the only cause of death.

What’s coming up. How does this go procedurally? Well, after the prosecution rests, we’ll get into the defense case. No defendant ever needs to put on any case, they can just rest on the argument that the prosecution hasn’t met its burden beyond a reasonable doubt. But there will be a defense case here. I don’t think Derek Chauvin is going to testify as part of that case however. It’s just too risky here. After that, the prosecution has a chance if it wants to put on what we call a rebuttal case. That’s only if the prosecution needs to address something that came up on the defense case that they weren’t able to reach through cross. I always tried to avoid putting on a rebuttal case if at all possible. I think it sends a better message to the jury if you say “No judge, we’re good. We don’t need a rebuttal.” Only if it was absolutely necessary.

Then we’re into closing arguments. Now the order is important here. The prosecution closes first, then the defense closes, then the prosecution gets the final word. It’s called the rebuttal closing. That’s such a valuable advantage. Sometimes defense lawyers used to say to me, “Oh, it’s not fair you get to go first and last.” Sort of true. I mean, it’s a big advantage for the prosecution. Of course the comeback was always, “Yeah, but you know what I have that you don’t? The burden of proof beyond a reasonable doubt. So if you want to switch burdens of proof, we can talk about the closings.”

Expect these to be more dynamic, more dramatic than openings. That’s just the nature of closings versus openings. Then the judge will give the jury instructions where he tells the jury in plain English “Here’s the law.” That can be really boring. I used to work with an FBI agent who, when you had to sit through jury instructions which could take a couple of hours, he would actually photocopy the pages of whatever book he was reading, so he could page through them as the judge read the instructions and make it look to the jury like he was following along with the instructions, but he was actually reading James Michener or John Grisham or whatever he read.

And then finally the jury will deliberate. This will happen in secret. We won’t see this. All we’ll hear from the jury is notes. They actually will write the notes on pieces of paper and fold them up and send them out, just like I guess when we were in high school and you would pass a note. The jury will then ultimately pass a note hopefully at some point saying, “We have a verdict.” They’ll read the verdict. Any verdict has to be unanimous. 12 zero to convict, 12 zero to acquit. Anything in between is a hung jury, a mistrial. I think we all hope to avoid that.

And then finally, each count will be considered separately by the jury. There’s three counts here. They can convict on all three, two of the three, one of the three, or none. Big question on everyone’s mind, “When? How long?” It’s impossible to say, but I’ll give you my ballpark estimate is that the week of April 19th, next week, that’s when we’ll see closings and I believe we’ll also see a verdict at some point during that week. So we’ve got a ways to go. This trial, like I said, has been riveting. I think it’s too early to make any predictions. If I’m the prosecutor. I like how things have come in so far, but the defense has also had its moments and put up its defenses as well.

Thanks again for listening to Third Degree. We’ll keep you up to date on this trial and as always send us your thoughts, your questions and your comments to letters@cafe.com.

Third degree is presented by CAFE studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatsciore. The audio and music producer is Nat Wiener. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Stanton, Noa Azulai, Jake Kaplan, Geoff Eisenman, Chris Boylan, Sean Walsh, and Margot Maley.