• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down the start of the Derek Chauvin trial, including the effectiveness of the opening statements, the strength of the arguments made by the prosecution and defense, and the impact of presenting video evidence and expert testimony.

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

This podcast is produced by CAFE Studios. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

DEREK CHAUVIN TRIAL

“CAFE Insider 3/23: When Hate is a Crime,” CAFE Insider

“CAFE Insider 3/16: Murder in the Third,” CAFE Insider

5th Amendment to the U.S. Constitution

MN Stat §609.19. Murder in the second degree

MN Stat §609.195. Murder in the third degree

MN Stat §609.205. Manslaughter in the second degree

Minnesota v. Derek Chauvin, Hennepin County District Court, complaint, 6/3/20

Derek Chauvin Trial Day 1 Live Coverage, CNN, 3/29/21

“Former officer knelt on George Floyd for 9 minutes and 29 seconds — not the infamous 8:46,” CNN, 3/30/21

“Given power of video, legal experts say Chauvin should consider testifying,” NYT, 3/29/21

“The case against Derek Chauvin will center on proving George Floyd’s cause of death,” NYT, 3/29/21

“In Derek Chauvin’s Trial, Sides Likely to Clash Over Video Evidence,” WSJ, 3/29/21

“The jurors who will decide Derek Chauvin’s fate,” WaPo, 3/28/21

“Derek Chauvin trial in George Floyd death compared to Rodney King case 30 years later,” USA Today, 3/21/21

“Derek Chauvin will now face a third-degree murder charge,” NYT, 3/11/21

VIDEO: Chauvin Trial Day 1, 3/29/21

Here’s What You Need to Know About the Derek Chauvin Trial

3/30/2021

All eyes are on Minneapolis for the start of the trial of Derek Chauvin, the former police officer charged with killing George Floyd.

The Chauvin trial kicked off on Monday with opening statements. Preet and Anne analyze the effectiveness of each side’s presentation, and assess the strength of their arguments. 

The bulk of the prosecution’s case rests on videos of the incident that were recorded by bystanders. Preet and Anne consider the impact of presenting video evidence at trial, and whether relying too heavily on video evidence could have an adverse effect on the prosecution’s case. 

A major part of the defense’s case hinges on the contention that drugs caused George Floyd’s death. Preet and Anne break down the scenario where dueling medical experts could create confusion among the jurors, and how this plays into the defense’s strategy.  

Preet Bharara:

From CAFE, welcome to CAFE Insider. I’m Preet Bharara.

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you, Anne? I understand there is, in the Milgram household, a vaccination update.

Anne Milgram:

Yeah. There is. My husband got his second shot on…

Preet Bharara:

That’s great. That’s so great.

Anne Milgram:

Sunday night. Yeah. And, it’s our son’s spring break, so it’s a little chaotic here, but it’s an amazing… It’s an amazing thing. And, I get my second shot next week.

Preet Bharara:

That’s terrific. One day… We’re working towards being back in a studio, I guess, eventually.

Anne Milgram:

Can you imagine? It’ll be weird to see your face across from me as we talk.

Preet Bharara:

That’s probably always true.

Anne Milgram:

No, just as we talk…

Preet Bharara:

I’ve aged. I’ve aged mightily. No, no, no. You opened the… You opened the door to that.

Anne Milgram:

I don’t believe that you’ve aged a day.

Preet Bharara:

I’ve aged about 11 years in the year since. I now have to wear makeup all the time in person, not just on TV. But that… But that’s… That’s great. And, your son is too young. My kids… My youngest just turned 16 and in the state of New York, everyone 16 and over will be eligible starting next week.

Anne Milgram:

It’s really good news.

Preet Bharara:

So, that’s exciting here, too.

Anne Milgram:

Yeah. I mean, one of the questions I think we’re going to have to ask at some point down the road is the way that this has been so different in different states and that people across the United States and across the world, just how this process has happened. And, obviously, it’s the first time in my lifetime this has ever happened. I’m very grateful to live in New York right now, that they’re getting to this point. And, there are a number of other states who have already… Have already gotten there. But, I hope it moves this quickly all over the country.

Preet Bharara:

Yeah. I mean, there’s still danger, dangerous spots and danger zones and the variants you have to worry about, and in some places, the plateauing is not at a level that you want. But, I still think there is reason for optimism, but not, as I think the President says, complacency. No complacency.

Anne Milgram:

Yeah. I mean, we’re following all the same things we were following earlier, but it’s nice. We’ve been able to be inside with my parents, who are fully vaccinated, which is terrific, and that alone is just a miracle. And, I do think that keeping up all these precautions for a little while longer will just… Just give us a great… Hopefully a really… A really good summer and we’ll be able to turn the page. I’m ready, Preet.

Preet Bharara:

I’m ready, too.

Anne Milgram:

I’m ready. I’m just going to say that. Yeah.

Preet Bharara:

So, historic trial of Derek Chauvin, the police officer who killed George Floyd. And, I think you can say killed George Floyd. The jury will determine whether or not it was… What form of murder it was, based on the proof and the evidence. But, I think it is not a controversial thing to say that that’s what happened, although I guess the defense will dispute what the cause of death was. And, before we talk about the opening statements which occurred yesterday, Monday, and then some of the early witnesses who testified and the videotape was played again in full, which was jarring and disturbing and downright upsetting for a lot of people, where do you place this trial in context, in historical context, for the country?

Anne Milgram:

I’ve been thinking about that because the last… The last significant civil rights trial that I think a lot of folks closely watched was, at least for me, was Rodney King, and that’s going back many, many years. And, there have been a ton of other civil rights cases that have gone on. There’ve also been a fair number of guilty pleas and sort of other resolutions of some of the more significant cases or, in other cases, officers haven’t been charged. There have been deaths where the finding was did not sustain or at least, at that moment in time, charges… Charges were not brought against officers.

Anne Milgram:

So, in my mind, this really stands as… It is historical, as you said. It’s also really important, I was thinking yesterday, that the judge has televised it, that there’s an understanding there that this is a moment of national reckoning and that this trial is about more than one officer sitting. And, obviously, for fairness in that courtroom, it’s just about that officer and the judge is making sure that Chauvin gets a fair trial. But, really, this is about a larger conversation, not just about George Floyd, but also about systemic racism and bias and police use of force that really feels to me like all eyes are watching. And, it’s just… It feels different to me than any other sort of civil rights trial we’ve seen. And, remember, I was a civil rights prosecutor for a period of time at DOJ, so I sort of… It feels different to me than most of the cases that I’ve seen.

Anne Milgram:

What do you think?

Preet Bharara:

Yeah, I think it’s a very important case because, in part, the result will tell us, or at least tell a lot of Americans, whether or not we’ve come very far since the days of Rodney King. Part of the issue here, like it was in the King case, is I have not come across any reasonable person in or outside of law enforcement who defends what Derek Chauvin did. And, in some of these other cases, you will find folks in law enforcement, outside law enforcement, who make arguments that, “Well, that kind of force was required or necessary.” You’re not finding that here.

Preet Bharara:

And so, it is a little bit of a watershed moment. Can a jury of someone’s peers find a cop who so blatantly, on videotape, in the eyes of most people, I think, essentially murdered a man with a knee in his back…? Can the family get justice? Can such a person be convicted? Can a cop be held accountable in that circumstance? And, I think it will be… I think… I think the reaction if there’s a full-on acquittal will be very bad and very dramatic and I think it will be upsetting to a lot of folks and it will mean for many people that we haven’t come very far, and I think that would be… Not to put too much pressure on this jury, but I think there’s a lot at stake.

Anne Milgram:

Yeah. I do, too. And, it’s worth thinking for a minute about Rodney King because that was a case in which the state went first. There was a Los Angeles prosecution. There was an acquittal of the officers in that case. And then, there was a federal prosecution where there was a conviction. And so, it’s very, very common for the federal government to allow the local state prosecutors to go first, which is what we’re seeing here. I do believe that if there was an acquittal, there would be a federal prosecution here. I mean, obviously, they’d have to go to a grand jury and ask a grand jury to return charges.

Anne Milgram:

But, I agree with you. I think that all eyes are on this. And, I’ve had the same experience. I mean, there are many times that you can have these discussions with members of law enforcement community about was the force reasonable? When did it stop being reasonable? And, people… People have debated it in other cases. But, then you get to something like this and part of it is the advent of cell phone cameras and that these bystanders just videoed it. And so, it would be a very different trial without that video and that video is so important and I think that’s also what’s galvanized us as a country, just watching what… It feels… I mean, I don’t know your reaction yesterday, but you forget, in part because I think we saw so many clips, you forget what it is to watch and how painful it is to watch what we now know is nine minutes and 29 seconds of a man being killed.

Preet Bharara:

Yeah, absolutely. I talked to my wife about it and she saw that video, the full nine minutes and 29 seconds, and said she wanted to throw up. And, I’ve talked to other people who can’t bear to watch the trial after seeing that video again, although I think it’s an important civic thing to do, to understand what sometimes happens in the country and how justice can be accomplished or not.

Anne Milgram:

Can we talk strategy?

Preet Bharara:

Yeah.

Anne Milgram:

On the video. I just want to sort of ask you this because my sense is that they showed it yesterday in the opening, they will not show it again except maybe in pieces of it when they have bystanders, if they’re trying to sort of understand where someone was standing or what was happening at the time. Maybe they would show snippets. But, I don’t think they’ll show the whole video again, if at all, until closing. It’s a lot to see that and I would worry about the jury feeling the same way that your wife and I and I think a lot of others felt yesterday. But, what do you think, strategically, is the right call?

Preet Bharara:

I don’t know about that. I mean, part of what you and I were discussing before we started taping was that in the prosecution’s opening statement, they made very clear that they have to take on fully, you know, head on, the defenses. And, some of the defense is going to be about causation and what was the cause of death. And, the prosecution… a lot of time, by the way, pulling the sting, as we say, from various defenses, including what the cause of death was. Was it a cardiac event? Was it a heart attack of some sort that was brought on by the taking of drugs and wasn’t brought on by the conduct and actions of Officer Chauvin?

Preet Bharara:

And, to do that, to get to your question, they’re going to call experts who will have to describe how it is that George Floyd died in real time. And, the prosecutor said over and over again during the opening statement, what you saw there was not death from heart stoppage, other than in the technical sense, that the person… That George Floyd was crying out for help. He was talking. He was pleading. And, that is not consistent, according to the prosecutors, with a cardiac event or an opioid overdose event. And, it seems to me that, of necessity, when they have the experts testifying as to the cause of death, they’re going to want to play the videotape and have the experts narrate what happens on the videotape in the final moments of George Floyd’s life.

Preet Bharara:

It’s also true that in other kinds of cases where you don’t have such disturbing footage… I had a narcotics case once where there was a hotel room with video rigged up in it and it was a heroin deal and, for some reason, three of the defendants decided to go to trial anyway. You couldn’t see the heroin, but you could see the suitcase and the interactions between the defendants and the undercover. And, boy, I tried to play that videotape every chance I got so it would imprint upon the jury the clarity of guilt. But, this might be different.

Anne Milgram:

I think that’s right, generally. I think it’s… I think it’s different here because, again, I think it’s just so painful to watch it. I think you’re right that experts may talk through certain pieces of the video, but watching that almost nine and a half minutes again… I mean, look, I actually think it’d be incredibly powerful in a closing argument just to have the jury sit for nine and a half minutes, because you get a sense of how long that actually is. And, that’s the other thing about re-watching the video, is just how long it was and how many opportunities there were for something different to have been done, and that is a really powerful, powerful thing.

Anne Milgram:

Do you want to talk through the overall prosecution theory of the case? I thought, in many ways, it was what I expected, and in a couple ways, it wasn’t exactly… It makes sense to me, but it wasn’t exactly what I was thinking.

Preet Bharara:

How so?

Anne Milgram:

Well, the argument, I think, as you just said, is really… You’re seeing it. You understand what’s happening here. It’s an appeal to common sense, that what you see on the video is… It’s real. You know? Use your own eyes and, as you said, sort of taking the sting out of the defense is going to tell you it’s drugs. It wasn’t drugs. The defense is going to tell you it’s a heart condition. It wasn’t a heart condition. And, just coming back time and time again to the video, to what people saw, all the ways in which that’s corroborated by the statements made by bystanders, by the firefighter who’s there and wants… Wants to check the pulse, from the 911 call operator who testified yesterday. I thought this was very powerful, saying that she actually called the… You know, she actually called the sergeant who was the supervisor, essentially a 911 operator calling 911 because she’s concerned about what she sees.

Anne Milgram:

And so… But, I think a lot of it was just like, trust what you see and what people are telling you they saw and understand that that’s what this is about. It was a very sort of common sense, like, appealing to the eye on the prize. Keep focused on what you know happened here.

Preet Bharara:

Yeah. Yes and no. Right? As we were saying, there was a lot of this common sense. You know, when the prosecutor said, “How are we going to prove intent to you? Well, watch the videotape. And, your eyes aren’t lying.” Right? What you see is not false. On the other hand, there’s a lot of discussion about expert testimony, expert testimony and medical professionals and forensic professionals, so there is going to be a lot of stuff… By definition, if you’re bringing in expert testimony to talk about causation and other things and training and everything else, that’s not about common sense. That’s about expert knowledge.

Preet Bharara:

I think the prosecution, on the common sense side of the ledger, did a lot of very powerful things, and one of the things that I found most powerful, and you alluded to it a minute ago, was a turn of phrase. And, I think you want to be careful about rhetorical flashes in opening statement on the part of the prosecutor. But, that prosecutor said over and over again a thing that was jarring to me, and that is, so and so, Witness A, called the cops on the cops. This other witness called the cops on the cops. Even the 911 dispatcher called the… You know, did something that she had never done before, called the cops on the cops.

Preet Bharara:

I think the second thing that was very important that the prosecutor did was make the point that when you evaluate the use of force and what’s appropriate in any given moment, that’s one thing. But, you have to re-evaluate moment to moment what the proper use of force is. The defense is going to focus a lot on that first interaction, right? And, there was a report that it was a large man and it was reported that he was drunk, perhaps, and there was a concern that a crime had been committed, and we’ll come to that in a moment and how overblown that was. But, there might be jurors who buy the idea that, as an initial matter, in that first few seconds or a minute, that when George Floyd is brought to the ground, even though he’s handcuffed… I mean, I think there’s a lot of evidence to suggest that was bad. But, maybe some jurors will buy that.

Anne Milgram:

And, they don’t even have to buy it, for what it’s worth, in a police case. They just have to decide that they’re not going to substitute their judgment for the officer’s.

Preet Bharara:

Right. But, in minute one, it might be appropriate or acceptable for some jurors in minute one. But, in minute four?

Anne Milgram:

Yes.

Preet Bharara:

In minute six? In minute seven? And then, very powerfully, I think the prosecutor made the point that is obvious from the videotape, that at some point, George Floyd stops moving and then the movement that you end up seeing, it’s involuntary seizures because he’s stopped breathing and… And, I think that’s a very important point for the prosecutors to stick to.

Anne Milgram:

Yeah. I think… I think you make a really… A really good point. And, we should say something that I think… I think we’ve said before and that people know. But, it is very difficult for people to go to trial against police officers. Police officers are not often convicted. These are among the hardest cases. And, part of it is what I just said, that the officers get a lot of latitude as a rule, and this is not where I think this should be the conversation. But, as a general sort of police misconduct question, officers get a lot of latitude because they’re reacting in a moment and as long as they follow their training, they’re sort of… Officers often get the benefit of the doubt from juries. Not always, but just… It’s not easy to bring a case against a police officer for a number of reasons. And again, part of it is the officer’s making a split second judgment.

Anne Milgram:

And so, I think your point is really well taken, there’s the initial take down to the ground, which I think the prosecution will not necessarily concede was correct or needed to be done. But, I would almost argue, even if… Even if that was fair and legitimate and you wouldn’t… Or, wrong, but you might not second guess the officer, you’re right to say, “What about minute two? What about minute three, four, five, and on and on?”.

Anne Milgram:

The other point that the prosecution did, and I thought it was… It was really interesting, is that they took on this question of the fact that Derek Chauvin was a police officer, that he was entrusted to do public good and to protect the public. And, they held up this badge. They held up the badge of the Minneapolis Police Department. They’re going to call a lot of other officers to say that this was an unreasonable use of force. They are calling the training, the head of training, to basically say, “This isn’t consistent with training.” And, they’re sort of leaning in to this argument of, like, yeah, when you’re a police officer, you actually… Your burden is to protect and serve and you have a duty to others and that duty was violated.

Anne Milgram:

So, I think they’re trying to address the potential bias. Like, bias isn’t even the right word, but the potential feeling that members of the jury may have, which is being a police officer, which is true. Being a police officer is a dangerous job. They often take a lot of risks for members of the public. But, then, really saying, “But that’s not what this was about.”

Preet Bharara:

In that vein, the prosecutor also said something else and used the phraseology that you just mentioned and said, “I want to talk about what this case is not about.” And, I think, essentially said, “It’s not about the cops generally.” And, the prosecution acknowledged that there are many, many, many good cops. In fact, kind of has to acknowledge that, you know, generally, because that might be the view of some of the jurors and you don’t want to alienate them. But, also because they’re going to be relying, as you said, on a lot of officer testimony, and so to paint with a broad brush police officers as bad overall undermines your own case because you’re going to want… You’re going to want them to believe and respect and trust what the good officers did, and there were many of them.

Anne Milgram:

This is a big part of their case, right? They’re calling all these other police officers. They’re calling the 911 operator. And, what they’re trying to say is all these other folks knew the right thing and did the right thing. This one police officer did not. And so, they’re trying to…

Preet Bharara:

…more than that one because there are a few other cops going to be on trial, too.

Anne Milgram:

Yes. But, they’re not on trial here. And so, you’re right. They’ll cast aspersions on them as well. But, I think they’re really trying to push them out of what would be seen as like the right and correct use of force.

Anne Milgram:

What did you…? What do you think about this sort of idea of seven medical experts test…? That’s… There’s no question in my mind, you…

Preet Bharara:

It’s a lot.

Anne Milgram:

Yeah. You just said it. They’re going to… They’re going to be a lot of sort of dueling medical experts. And, I’ve tried cases where an expert testifies for the government and says XYZ and then a defense expert comes up and says ABC, and then the jury has to figure out a little bit of which expert should they trust, how does this work. I mean, but, seven is… Seven is quite a large number.

Preet Bharara:

To me, it indicates, I think, a fairly serious concern about the defense of causation and at multiple points, and we’ll get to the defense statement in a minute, the defense has made clear they’re going to go full bore on this idea that Derek Chauvin didn’t cause the death, that the death was caused by a pre-existing heart condition, which the prosecutor addressed at some length in the opening statement, and it was a cardiac event and/or something related to his drug use. And, I think the prosecution is concerned that the jury will be confused. And, jurors are often confused about how medicine works and how the body works. You know, I’m not expert in those things, either.

Preet Bharara:

But, the prosecution spent a lot of time having to address the issue of the fentanyl, which is a narcotic, found in the bloodstream of George Floyd, and they had to go far… This is what I think they’re concerned about. They had to concede in drawing out the sting that there was a large quantity of fentanyl and they even addressed the issue of whether or not in some people that would have been a fatal amount of fentanyl. And, then the prosecution had to go on and say… And, this may be where they think they have a weak point, which I think is able to be overcome, but they may have a concern. The prosecution had to describe how people who have a lot of drug usage become acclimated to the drug and develop a tolerance for the drug, and so what might be a fatal amount for one person of a certain size and a certain frequency of usage, it’s not a fatal amount in someone like George Floyd.

Preet Bharara:

Already, you see… And, I’m not saying this is a winning argument or not on the part of the defense. But, already you see they’ve got a… The battle, the issue, worrying that some jurors might buy the idea that George Floyd somehow is on trial and George Floyd is a bad person. And also, hey, it’s an interesting thing to suggest to the jury, as the defense will, that not only is [inaudible] other cause but some medical expert, I suppose on the defense side, is going to say that amount of narcotic with this person with his conditions, that could easily have caused the death. And, I think the prosecution did a good job of sort of leading the jury through a preview of what the response is going to be. But that’s not a small thing and I think the prosecution is worried about that and needs to handle that well.

Anne Milgram:

It’s a great point you make, Preet, because all the defense needs is one juror. And, it’s worth reminding folks that in this situation, the jury has to be unanimous to convict Derek Chauvin, and so what the defense is trying to do is to present reasonable doubt, and it could be one juror. Obviously, they’re going to want more than one juror to find reasonable doubt. But, what dueling experts does is sort of lead to this question of, well, who do you believe? And, it presents a… For a defense, it presents what they see as a plausible alternative explanation. And so, that’s what they’re trying to do here, which is to say, “Well, look. There were a lot of things going on and the actual causation of the death wasn’t… Wasn’t Derek Chauvin.”

Anne Milgram:

Now, again, I think that’s a tough argument to make and… But, the dueling experts will definitely put these issues front and center and the jury’s going to be asked to sort of not just decide or understand that medical question. They also have to decide what role did that play in, you know… So, yes. You know, George Floyd had narcotics in his system. Yes, he had an existing heart condition. But, that doesn’t mean that it played a role or was the cause of his death. And, that’s… That’s sort of where this is all going to swirl around.

Anne Milgram:

But, George Floyd is also… He did die as a result of this and so, I think that the defense has… It’s an uphill argument for the defense to make in some ways because, again, people are watching on video as this happens. And so, again, I think that the defense is trying their best to say what are the most plausible arguments that we can make here.

Preet Bharara:

Look, on this medical issue, I think it’s going to be a linchpin of the case, just based on how much time the prosecution spent on it. That tells you where the prosecution thinks their strengths and weaknesses are, and I think they also believe there’s going to be some B.S. trickery on the part of the defense and I’ll give you one example. It seems that there’s some document from the coroner or someone else that states somewhere cause of death, heart stopped. And, the prosecutor said something very interesting at the trial. He said, “Look, you know, two things are certain. We are all born and we all die, and when we die, every single one of us dies from heart stoppage or the lungs stop working.” Meaning that whatever the cause of death, whether it’s narcotics or a gunshot wound or cancer or anything else, ultimately death is pronounced when the heart stops.

Preet Bharara:

And so, the fact that there might be some document that mentions the heart stopping… This is what I took the point to be, does not mean that it was a cardiac event that caused the death.

Anne Milgram:

Right. This is always an issue. But, yeah.

Preet Bharara:

Right? So, I think they’re ant… Yeah. They’re anticipating the defense being, “Hey, it was a cardiac event caused by the opioids or by some other condition that George Floyd had, that they concede he had.” But, that doesn’t mean that’s the thing that caused the death, right? So, already you see we’re getting mixed up in jargon and medical terminology that might be confusing to the jury. And remember, the defense doesn’t have to have the most winning argument for every rational person on Earth. They just have to be able to confuse or convince one person that there’s some issue here with the cardiac thing. Like, you know, I don’t know. They want a juror to think.

Anne Milgram:

Right. Confusion benefits.

Preet Bharara:

Something weird was going on with the heart?

Anne Milgram:

Exactly.

Preet Bharara:

Yeah, absolutely.

Anne Milgram:

Yeah. Confusion benefits them. And also, having people, having the jurors sit in the jury room disagreeing about whether that one piece of paper says what the prosecution says or what the defense says, that is what the defense wants. I will say on this issue that I oversaw the medical examiner for a period of time when I was AG and this is always an issue because the technical cause of death is, as you say, the heart stops. The lungs stopped. But, that doesn’t mean that someone wasn’t shot or killed or otherwise murdered. Just the sort of physiological end of life can be attributable to one of a handful of things. And so, it’s the consequence of the gunshot. It’s the consequence of the knee on the back and on the neck. But it is… It is something that, again, to your point, can be argued and manipulated in a different way, and that is… That is… This is a longstanding question with how do you classify causes of death, so… So, I’m not surprised that this is going to… Is going to be a potential issue here.

Anne Milgram:

What did you make, also…? I mean, one of the things I think that… I think the government was very strongly, the prosecutors were very strongly saying use your eyes, right? What you’re seeing is what it is. Don’t overcomplicate this and make it into something it’s not, whereas the defense basically said this is about a lot more than that nine minute and 29 seconds and there are 50,000 documents and… And, they were sort of saying it’s… I sort of saw two arguments. One is it’s not… It’s not about the video. They’re sort of arguing the opposite thing with the prosecutors, which is the prosecutors are saying, “Trust your eyes.” And, they’re saying, “Actually, he’s an officer. He’s trained. He followed his training, Derek Chauvin. That was a reasonable use force and this is about a lot of other things.”

Anne Milgram:

And then, they’re also doing something else which I think is a risky move, which is essentially, as you said upfront, blaming George Floyd, really sort of attacking him and… And, I wondered what you… What you make of it and sort of the way in which they did it.

Preet Bharara:

Yeah. So, again, just like the prosecution said common sense, common sense, but also we’re going to have seven medical experts come testify, which means they admitted to some complication and complexity to the case. The defense, as you say, said, on the one hand, there’s a lot more than nine minutes and 29 seconds and there’s a lot of documents and it’s very complicated, and they interviewed scores and scores of people. But, I was also struck by the fact that the defense opened up, began with common sense as well. And, to me, that rang a little bit hollow because of how powerful the video is and how powerful the narrative was on the part of the prosecutor.

Preet Bharara:

So, I don’t know quite where they’re going with the common sense theme and I think the power of the prosecution’s case, in part, was when the defense started bringing up these issues that they thought were powerful for them, they rang a little bit hollow because the prosecution team had already mentioned them. So, for example, the prosecution talked about how Derek Chauvin, even when people around him in the crowd, including the 911 dispatcher, tried to help or tried to check the pulse, he threatened them, and in one case, I think pulled out his mace.

Preet Bharara:

And, that paints a picture of what the crowd was like, that they were trying to help as good Samaritans, this person who looked like he was being killed, who was calling for help, who was calling out to his mother, who was saying, “I can’t breathe,” who was saying, “Tell my kids I love them.” That was the portrait painted and it seemed to be an accurate portrait.

Preet Bharara:

Then, the defense got up and said, “Well, one of the reasons why Derek Chauvin maintained that position was it was kind of like an angry mob around him and they were trying to maintain control.” That… That didn’t comport with what we saw on the videotape and what the more, I think, pragmatic and realistic picture that was painted by the prosecution. So, I don’t know how far that went. But again, you know, somebody posted on Twitter yesterday something that we should all bear in mind as armchair lawyers and critics dissect what the defense does. The defense’s arguments are not being made for us, right? They’re being made for the 12 jurors and some subset of the 12 jurors in that room.

Preet Bharara:

And so, they’re going to say and do a lot of things that we will criticize and dissect and complain about, and maybe they should be complained about no matter what as defense strategy, even from their perspective. But, what they’re doing is they’ve made an assessment of these jurors and an assessment of the strengths, and not just the strengths, but the weaknesses of their case. You know, sometimes defense lawyers make bad arguments because there’s no good argument and they’re making the least bad argument, which still… By definition, a least bad argument is still a bad argument. And, they must have figured out that there’s something to this issue of both deference to cops that some people might feel over deference to cops combined with the confusion of the medical evidence.

Preet Bharara:

I mean, they must be relying on the idea that maybe there’s a juror or two who’s trying to find a way not to hold a police officer responsible or accountable. I’m making… I’m just hypothesizing. Because it’s a hard job and one way I can figure out not to hold a police officer responsible or accountable is as a matter of medical fact, he didn’t do it. It wasn’t his fault. There was a cardiac issue or some other thing. I mean, look, the prosecution spent a lot of time on the cardiac issue, saying that it wasn’t a heart attack, it wasn’t a cardiac event. There was no injury to the heart, although he had to concede that George Floyd has a blocked artery. But, then he went on and said there was no clotting. If you have a heart issue, he described somewhat in a macabre way, you have instant death, right? And, he said what you see from the videotape is not instant death. It’s a slow, unfolding suffocation, essentially, which presumably is something that the experts are going to talk about.

Anne Milgram:

Yeah. I think you’re right. I think the medical issue is the defense and I think this other question of reasonable use of force and fear of the crowd will be a part of the defense. But, I do think that the medical piece is going to be a lot of what the defense lawyers argue. And, the defense lawyers also did… He also did a couple of other things that are very common in trials, which… He said, “I want you to keep an open mind. I want you to listen to the facts.” I mean, some of it was sort of textbook lawyering and some of it was really, I think, an effort to try to turn the focus from that video, which is so damning and obviously painful for all of us to watch, to turn it into something that’s really sort of almost clinical, this question of the cause of death, the medical. It’s far less emotional.

Preet Bharara:

Oh, 100%. And, there’s no morality involved in it and it gives people a sort of cleaner reason in the minds of the defense, a cleaner reason to vote to acquit. You know, it’s science. It’s just science, folks.

Anne Milgram:

The other question I had is whether the goal is a full acquittal, which of course always, that’s what a defense lawyer wants, or whether it’s also to not have the conviction be on second degree murder. Right? And so, that’s a lot of what defense lawyers do, is of course they’re going to argue for the full acquittal, but there’s also a piece of can you… Can they get around this intentional piece? And, if they get the fight around that, then… And they get some reasonable doubt, then a lot of times… You know, juries are 12 people sitting in a room at the end of the day and there are compromises that get made. And so, can they get enough folks to raise doubts about second degree homicide to get a conviction on manslaughter [inaudible] the second and third degree murder instead of second degree murder. And, there’s a significant difference in potential sentencing as a result of that. And so, that was the other question in my mind as I was sort of paying attention to this yesterday.

Preet Bharara:

And I remember, for the last few weeks we’ve been talking about this very issue. The prosecution really wanted there to be a third degree murder charge. Initially, the court threw that charge out and then after some more wrangling and litigation and appeal, put that charge back in. And, we discussed, as you’ll recall, that it’s not always the case that the prosecution is arguing for the inclusion of a lesser included offense. But here, they were, I think for precisely the reason you’re saying, that there might be some jurors who are not prepared to convict on second degree murder, which requires a finding beyond a reasonable doubt and unanimously, in this case, that Derek Chauvin intended to cause the death of George Floyd. Now, I think he did. I think there’s a lot of evidence that he did. I think the prosecution took us through that.

Preet Bharara:

But some jurors might not buy that. But it’s really hard for jurors not to buy the argument for third degree murder, which requires just that the defendant have had a depraved mind or a depraved indifference to life and was acting in a reckless fashion as opposed to intentional fashion and that recklessness and depravity caused the death of the victim. And, you can see now, right? As the arguments unfold and are being previewed, why it is that the prosecution wanted so badly to have that other charge in there.

Anne Milgram:

Yes. Do you think Derek Chauvin will testify?

Preet Bharara:

I was… I literally just wrote a note. “Ask Anne if Derek Chauvin will testify.”

Anne Milgram:

I asked you first.

Preet Bharara:

[inaudible] You know, I don’t know. I don’t know. You know, we saw there’s no preview of that. There’s sometimes… Not often, but sometimes the defense lawyer will say at the outset, although I think it’s not wise almost all of the time, that my client will testify and explain it and explain it to you. I mean, part of it depends on what kind of demeanor the lawyers understand Chauvin… I mean, we’ve not… I’ve not… I don’t know what he sounds like. I don’t know what his attitude is. I don’t know what his demeanor is. I don’t know if he’s an angry guy. I don’t know if he’s going to come across as sympathetic. I think the facts are very difficult for him.

Anne Milgram:

I think a cross of him would be devastating.

Preet Bharara:

I think so, too. I think so, too. But at the same time, we talk about this, or maybe we don’t talk about it enough. It’s drilled into every lawyer and it’s drilled into everyone who watches anything relating to a crime saga on television or on the movie screen that there’s no burden of proof on the part of the defendant. They don’t have to testify. There’s a presumption of innocence. And yet, in a case like this, you worry if you’re the defense. Is there some expectation, even though there’s not supposed to be? Is there some expectation on the part of jurors? I just want to hear how he explains it. I just want to… I’d like to know what was going through Derek Chauvin’s mind.

Anne Milgram:

I think people ask that question and jurors are people, and so I think it’s natural that juries often are curious about… And, the judge reads… Part of the charging instructions at the end of a trial when the defendant hasn’t testified will always be the defendant is, exactly what you said, presumed innocent, does not bear any burden to testify. And, you can’t infer anything from the fact that the defendant hasn’t testified, which is, again, an effort by the court to sort of work against what is I think a pretty normal human reaction by a lot of jurors, which is, “Well, I wonder why he wouldn’t testify if he’s innocent?”.

Anne Milgram:

So, that’s… That’s a piece of this. I think here, there is a video which… It sort of… That’s a version of events and that’s a version of events with Derek Chauvin, and so there’s an argument for the defense to put him on the stand. I don’t think they will and I should say that clearly. But there’s an argument to put him on the stand if they think one of two things is going to happen. One is that the evidence is overwhelming and that he will be convicted, and that’s the time that sometimes defense lawyers will put their clients on the stand, to make… Whether it’s sympathy or…

Preet Bharara:

It’s like a Hail Mary. It’s like a Hail Mary pass.

Anne Milgram:

Yeah. Exactly. Or to make their argument of why they believe they were following protocol or why they believed that there was a danger. Again, I’m not… I’m not crediting it. I’m just saying that’s one thing that sometimes defense lawyers do. The second thing they sometimes do is that they try… They would put someone on the stand to try to defeat the top charge. Again, here, the intentional murder charge versus the depraved indifference murder charge. And so, there have been instances where people call, defense lawyers call their clients to try to argue, again, against the top charge. It is a really risky move, particularly here where the defense has the medical evidence. They have now gotten in this evidence of George Floyd’s prior arrests, which, again, I’m not so sure… I’m not certain I think that the judge should have done that. But again, that’s significant for the defense.

Anne Milgram:

And so, it feels to me that whatever benefit they think they might get from Derek Chauvin would be defeated by the fact that I do not see how he can withstand cross-examination on every single moment in time where he could have done something different. And, basically, the prosecution would pin him down to that video, to everything in that video being accurate and true.

Preet Bharara:

Oh yeah. We talked about when it would be play… You know, we were talking about how often it’ll be played. It’ll be played second by second, frame by frame. There’s a moment when the prosecutor says, “Look. He kept the knee in the back with his hand in his pocket minute after minute after minute, even after the ambulance comes, even after George Floyd stops moving, even aft…”. And this, to me, was very chilling. Even when the gurney is being rolled over to George Floyd, the knee was still on the back. How are you going to answer why that was as the videotape is being played slowly, frame by frame, in cross-examination? So, I agree with you.

Preet Bharara:

But you never know. You never know. And, sometimes clients… You’ve seen this. Insist. Insist over the objection of their own counsel on testifying. But it doesn’t look like that’s the case here because I think if there had been that insistence, there would have been some preview that the client was testifying. You just never know. That’s why you have attorney-client privilege, because we’re not allowed to know.

Anne Milgram:

Yeah. Exactly. But even the preview, I think, was… In jury selection, was more of the you understand he doesn’t have to testify. It was sort of socializing the potential jurors to the idea that Derek Chauvin will not testify and that they couldn’t hold that against him. So, I think very strongly he will not. He will not testify at trial.

Preet Bharara:

I agree with that. So, a lot more witness testimony, both lay testimony, as we discussed, expert testimony coming up. I think that if you’re listening and watching and paying attention to the trial at home, I think you’ll see that the focus will be on causation, the medical issues. That’s where the defense probably sees they have some room to play and to defend their client. But we’ll see how it unfolds and discuss again next week.

Anne Milgram:

And, one thing, Preet. The… This is a really important and a significant trial. It is going to move fairly quickly. The estimate was two weeks. I think you and I talked before we got on that it feels like with that many medical experts, it may take closer to three weeks. But this is going to move quickly and I would expect the prosecution to call witnesses all week and they’ll put some experts on and to really sort of put a lot of their case in, in the next… Today and the remainder of this week and part of next week. So, I think it will move quickly.

Anne Milgram:

And for folks watching at home, sometimes you’ll watch a witness and you’re thinking, “Well, how does this…? How does this relate?” But a lot of times, witnesses, what’s useful or valuable in their testimony is really brought out in summation. So, some of it can feel like… It can be a bystander looking from one angle, another bystander from another angle, that the government or the defense will bring together at closing arguments.

Anne Milgram:

And then, the other thing always to watch for is cross and whether the questions asked by the opposing attorney are effective, whether they cause you to ask questions or think differently about what you’ve just heard. Those are some of the things I’ll be watching for this week.

Preet Bharara:

Same here. Talk to you next week, Anne.

Anne Milgram:

Talk soon. Bye.

Preet Bharara:

That’s it for this week’s CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noah Azulai, Nat Weiner, Jake Kaplan, Jennifer Corn, Jeff Eisenman, Chris Boylan, Sean Walsh and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.