• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down the latest in the Derek Chauvin trial, including the strength of police and bystander testimony, the arguments made by the prosecution and defense, and the effectiveness of presenting video evidence. They also make sense of the reported DOJ investigation into Florida Rep. Matt Gaetz for allegedly sex trafficking a minor.

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 3/30: Minnesota v. Derek Chauvin,” CAFE Insider

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

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

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

State of Minnesota v. Mohamed Noor, MN District Court Fourth Judicial District, jury instructions, 4/29/19

“Lawyers deliver drama on TV, but witnesses and evidence star in the Derek Chauvin trial,” USA Today, 4/1/21

“Derek Chauvin’s body camera video shows his reaction just after George Floyd left in an ambulance,” CNN, 3/31/21

“Juror in Chauvin trial has ‘stress-related reaction,’” NBC News, 3/31/21

VIDEO: Minneapolis Police Chief Medaria Arradondo testimony, 4/5/21

VIDEO: Courtney Ross testimony, 4/1/21

VIDEO: Charles McMillian testimony, 3/31/21

VIDEO: Genevieve Hansen testimony, 3/3021

VIDEO: Donald Williams testimony, 3/30/21

VIDEO: Bystander testimony, 3/30/21

MATT GAETZ

18 U.S. Code §1591 – Sex trafficking of children or by force, fraud, or coercion

18 U.S. Code §2421 – Transportation generally

18 U.S. Code §2422 – Coercion and enticement

“Citizen’s Guide To U.S. Federal Law On Child Sex Trafficking,” DOJ

“Justice Dept. inquiry into Matt Gaetz is said to be focused on cash paid to women,” NYT, 4/2/21

“Gaetz showed nude photos of women he said he’d slept with to lawmakers, sources tell CNN,” CNN, 4/1/21

“Matt Gaetz’s claim that ‘travel records’ debunk the allegations against him,” WaPo Fact Checker, 4/1/21

“Matt Gaetz Is Said to Face Justice Dept. Inquiry Over Sex With an Underage Girl,” NYT, 3/30/21

Matt Gaetz tweets, 3/30/21

The Police Take the Stand in the Chauvin Trial

4/6/2021

With the trial of Derek Chauvin in full swing, it’s the prosecution’s turn to argue its case.

The first week of the trial included the presentation of emotional witness testimony and video evidence. Preet and Anne discuss the impact of police officers testifying against another police officer, and whether relying too heavily on video evidence could hurt the prosecution’s case. They also assess the strength of the arguments made by the prosecution and defense.

Meanwhile, the Department of Justice is reportedly investigating Florida Rep. Matt Gaetz for allegedly sex trafficking a minor. Preet and Anne break down the federal sex trafficking laws, and Gaetz’s unusual claim that the reported investigation is part of an extortion scheme against him.

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?

Anne Milgram:

Hey, Preet.

Preet Bharara:

We’re up to 4 million vaccinations a day. It’s pretty good.

Anne Milgram:

Amazing. Yeah, it’s amazing. And New York City, it feels like it’s just totally opened up.

Preet Bharara:

Well, New York State now, vaccinations are available to those 16 and up. So, my kids are even eligible now. So, we’re getting on that. So, hopefully everyone’s gets vaccinated soon, wherever you are. I think that the age limitations are different from state to state. We’re getting there in New York. We’re getting there in some other states.

Anne Milgram:

I get my second on Wednesday. I’m very excited about it.

Preet Bharara:

I hope you have no reaction

Anne Milgram:

Me too.

Preet Bharara:

People do.

Anne Milgram:

That’s okay, if I do, it’s worth it.

Preet Bharara:

People do.

Anne Milgram:

Yup.

Preet Bharara:

It is worth it. So, we got a lot to discuss, as we always do. Last week, began the trial of Derek Chauvin on second-degree murder, third-degree murder, on manslaughter charges. And we only have the chance really to talk about the first couple of witnesses in the opening statements and how the case have been laid out.

Preet Bharara:

And one thing I want to revisit that we discussed, and I think we had a slight disagreement on this, which was how much of the videotape or the various videotapes of George Floyd would be played at the trial? They played a lot of it, haven’t they?

Anne Milgram:

Yeah. I mean, my view was that, the whole nine-minute, look, it’s traumatizing. We should talk about how we react to this.

Preet Bharara:

And one jury had a problem.

Anne Milgram:

Yeah.

Preet Bharara:

Yeah, they did.

Anne Milgram:

One jury basically felt physically ill at one point. And by the way, I’m not the only one to take this position. Our friend Barb McQuade wrote something that resonated very much with me, which is to say like, “I hope they don’t show it so much that it’s desensitized, that people get used to it.” I hope I’m quoting Barb accurately.

Anne Milgram:

But my view was, you show that whole nine minute and 29 seconds at the beginning, and you show it at the end. You pause at some point during your summation to signify how long a time that really is. But then you show small bits and pieces, and maybe you do even photographs that are stills, that witnesses could talk you through, that you don’t keep showing it over and over again.

Anne Milgram:

It’s turned out that the government has taken the approach, and I think we should talk about the advantage of this that I think that they see, which is they’re putting in every body-worn camera. They’re basically trying to show this incident from every possible angle. So, there’s really no argument about something that was missed or not shown. I mean, do you think that’s what they’re doing?

Preet Bharara:

Look, what I think they’re trying to do is forestall any argument that there’s some angle or some vantage point that the public hasn’t seen. Look, there’s going to be a disagreement, and we should talk about this also, about whether or not the knee of Derek Chauvin was pressed into the back or the shoulder or the neck of George Floyd. And I think a couple of times, we use the word back as a shorthand for neck. But that’s going to be a point of contention.

Preet Bharara:

And the prosecutors here have the luxury of lots of videotape and lots of camera angles. And I think that’s exactly what they’re doing. They’re trying to preclude any argument that there’s something missing here.

Anne Milgram:

Yeah, I think that’s right. And I think the advantage of, they’re showing all these pieces is and they even been put in Derek Chauvin’s, his body camera, even though it fell off him and went under a car nearby. But essentially, they’re putting this argument out, which is nobody can claim that there was another threat.

Anne Milgram:

And part of Chauvin’s defense already is, I was worried about this angry mob, and there was a potential threat. That’s not consistent with any of the videos that have been shown so far. And I think the government is trying to basically say like, look, you have the full universe of it, anything else is a fairy tale. So, even if Chauvin’s lawyers stand up in summation, and say, he did it because of XYZ, there’s not going to be any reasonable basis to conclude that XYZ was true.

Anne Milgram:

And so, I do think that’s why they’re doing it. And I will say this, I’m sure they balanced exactly this conversation we’re having. I’m sure they’ve had this conversation internally, because there really is a very powerful argument of, it’s traumatic to see this over and over again, also for the jury. And so, trying to be sensitive to the jury sitting there, but at the same time, I think it’s clear that that’s why they’re doing it.

Anne Milgram:

And one other quick point, Preet, I agree. I think last week, I said, back and neck and maybe use those interchangeably. But I should be clear in saying, the knee was on the neck. Looking at the video, I would argue that that’s what you see. Now, Derek Chauvin’s lawyer will argue it was more toward it. And he did make this argument yesterday in some questioning witnesses and it was more on his shoulder.

Anne Milgram:

And that’s important because the amount of force that an officer could potentially use on a shoulder is very different on a neck, which obviously you need to breathe. So, I think that is going to be a big point of contention.

Preet Bharara:

And both of those facts reinforce each other, right? The fact that the cause of death was some form of asphyxiation and inability to breathe seems to be proven or supported by the video angle. It shows that the knee is on the neck. And the fact that you see the knee on the neck in video angles also supports the conclusion that death was caused by an inability to breathe, right? So, those two things reinforce each other, even if the camera angle is not 100% clear.

Preet Bharara:

The other thing that you just mentioned, and that was previewed by the defense didn’t really pan out. And that’s this idea that Derek Chauvin, and the others, had to act a certain way with George Floyd, not only because George Floyd was maybe under a substance, under the influence of a substance or was a big guy, or is being non-cooperative, those are their arguments, but also because there was an angry mob.

Preet Bharara:

Witness after witness testified more compellingly than I had anticipated that they were shocked and aggrieved and worried about what they saw, including that MMA fighter who gave very compelling testimony, including an off duty firefighter, who said again, and again, we call the police on the police. And the MMA fighter, when asked why he called 911 said, and probably one of the most memorable lines of the entire trial so far.

Donald Williams:

I believe I witness a murder.

Preet Bharara:

And so, I think this idea of the angry mob has backfired, do you not think so?

Anne Milgram:

I very much agree with that. And I also think that it’s an argument that the defense started to make. And as you listen to the bystanders, it’s very clear that they were there and they were upset because of what they were witnessing Derek Chauvin do. And so, it feels very difficult and problematic argument to make, to say, now that, it’s not there was a spontaneous mob that appeared for some other reason that people stopped because of what they were witnessing.

Anne Milgram:

And one thing, we got a great question. It was a tweet from @tongueofwood, which asked us the following question, what-

Preet Bharara:

Wait, @ what?

Anne Milgram:

@tongueofwood.

Preet Bharara:

Okay, got it. I just wanted to hear that-

Anne Milgram:

That’s what a reading.

Preet Bharara:

I wanted to hear that again, that’s all.

Anne Milgram:

What is the quality of prosecution and defense in the trial thus far? And it goes on to ask, as a prosecutor, what is the Chauvin defense you would least to deal with or refute to a jury? But the question, I think is related to that is that, the prosecutors made a very specific decision to start the trial with the bystanders, to start with what I thought was really powerful and emotional testimony. That was this incredible mix of grief and anger, and a shared feeling of helplessness that they were watching something.

Anne Milgram:

And that what they would want is fairness and justice, and that there was nothing that they felt they could do, because it was being, what they were watching was being done by a police officer. And I wonder what you think of that decision as a starting point.

Preet Bharara:

So, it’s very interesting, right? I bet, if you talk to the prosecutors who were going to be responsible for trying the case, if you talk to them at the moment of the charging decision, and you said, think to the future a year from now, how will you start the trial? In my experience, and perhaps in yours also, you want to start strong, you want to start very credibly, you don’t want to have any surprises. And all of that generally points to the direction of calling a law enforcement witness for often, right, who can give an overview, who can explain the situation.

Preet Bharara:

Maybe you even begin with the Police Chief, because that’s really compelling, strong evidence on the part of somebody who has testified before, doesn’t get nervous in front of a judge and a jury. That’s what I think you would have expected. And it must be true that investigating the case and preparing for the trial, they discovered, as we did last week, but they discovered some time ago, that some of these witnesses were absolutely riveting and compelling and compassionate, and irrefutable in what they saw and witnessed.

Preet Bharara:

And so, they began there, I don’t think that’s the normal way of going about it. Sometimes, you begin with a lay witness in cases where there’s a victim, here the victim is deceased. So, for example, maybe in a robbery case, you begin with the victims in the house, because that’s compelling and it draws in the jury emotionally. And it puts on display right away what the stakes are and how much harm was done.

Preet Bharara:

And then you go back and you do the forensic evidence and the medical evidence, whatever else there is. Here, I think because of the nature of the witnesses, and how compelling they were, they switch the usual order. Do you agree that that’s the usual order that I described?

Anne Milgram:

I do not think in the normal case. And obviously police cases are different cases. We’ve talked about that a little bit. But I don’t think in the normal case, you would have started with the bystanders. I did think though that it was incredibly powerful and I agree with you that at some point in the course of probably prepping witnesses, and they would have, the prosecution will spent a lot of time talking to all the witnesses, preparing them for their testimony and asking them questions like they’d be asked in court.

Anne Milgram:

And so, in the course of that, I think you’re right that they would have come to the conclusion that this is a really powerful part of this case. And part of what I think is so powerful. I struggled to articulate it a little bit. But there’s a way in which the jury is now seeing the video, and we’ve now seen the video, so there’s a way in which the harm is, we already understand it in a certain way. But there’s a different level of watching it through the eyes of people who were there, and wanted something different to happen and couldn’t do anything to stop it.

Anne Milgram:

It’s almost being with them moment by moment as it unfolded. And so, there was something that was very powerful. It also is a reinforcement of what the prosecutor argued in opening, which is, you see this with your own eyes, it is what it is. It is what the video shows you to be. And now you have this group of people coming in, who don’t know each other, didn’t know George Floyd, just people walking down the street who are joined together, and becoming bystanders to this horrific and tragic incident. And the narrative through their eyes really confirms to me in some ways, what you see in that video is very consistent with what they’re telling, they’re just telling it from a very human narrator perspective.

Preet Bharara:

Right. And it does another thing, right? Your average lay person juror may have some understanding of what law enforcement does, but really needs to be told, and it needs to be explained what their discretion means and what their training is, and everything else. These bystanders are just ordinary people, just citizens of the community, just like the jurors. And so, the jurors can identify with these witnesses in a way that they might not be able to identify with the police officer witnesses, and some of the medical witnesses that we’re going to have.

Preet Bharara:

And I got to think that every juror to a person thought to themselves, how would I react? How would I reacted if I happened upon this scene? And so, an officer with a knee and in the back of the neck of a person who was not resisting, and who was saying he couldn’t breathe, and was calling out for his mother, when the people around me were calling 911, and it looked like there was a murder taking place by a police officer. I can’t think of anything that’s more compelling than that.

Preet Bharara:

So, last week was a lot about the bystanders, interesting choices we’ve discussed. So far, this week and recording this mid-morning on Tuesday, April 6, the one two punch of the bystanders followed by multiple police witnesses. I don’t know overstate it, but it’s very, very strong. So, you have up to an including the Police Chief, has been a terrific witness. I’m going to skewer his name, I’m sure but Medaria Arradondo, who has been a police officer, I think since 1989, so his whole life in the Police Department there in Minneapolis.

Preet Bharara:

First African-American Police Chief there. He’s the one responsible for firing Derek Chauvin. And he said in no uncertain terms that would Derek Chauvin did was wrong, was outside of the training, was not what he was supposed to do. And so, it’d be one thing if you had the police saying it and the witnesses who were bystanders said something quite different, but they completely reinforce each other. So, you’re getting lay witness testimony that they thought the bad things were happening.

Preet Bharara:

And then, you get not only, they’re not just police experts on training, they’re the actual supervisors of Derek Chauvin himself. And I have not personally researched it, and you may have some experience with this because you’ve dealt with a lot of Police Departments, it marks one of the first times ever, in a case like this, where someone has been killed at the hands of a police officer, that that police officer’s own chief testifies for the prosecution. The only other instance that I’ve seen documented is a prior case in Minneapolis itself, where the same Police Chief testified against an officer who was involved in an excessive use of force case.

Preet Bharara:

Have you ever seen a Police Chief testify this way?

Anne Milgram:

I have it. And usually in a police case, you would generally see a supervisor, that the person who was the supervisor at the time, and then you’d see a Training Officer, the Police Department’s, major Police Departments have Training Officers and they’re responsible for making sure the officers get use of force training, de-escalation, training, whatever it is in the specific Police Department. And that, the Training Officer is usually called, as has been the case here. We should note that one of the officers that was called had been in charge of training.

Anne Milgram:

And so, she testified I think yesterday, here’s all the training that Derek Chauvin received. Here’s what he would have been trained in. Here’s the process and protocols that Police Officers follow. And the Police Chief did some of this too. There was a very senior police lieutenant, who I think it’s the person with the most time on the force who’s also testified. And so, what is normal is to have a Training Officer say, the officer received this training. And here’s the policies of the Police Department, here’s what you’re supposed to do.

Anne Milgram:

This has gone in a completely different, right? Far, far beyond, I think what you would usually see. And the judge has actually held back the prosecution a little bit on this and only allowing them to have, I don’t know, I think it’s four police witnesses. In a normal police case-

Preet Bharara:

I guess, because I think the prosecutors are going overboard on it, right?

Anne Milgram:

Right. But in a normal police case, you’d like, prosecutors probably would struggle to have one or two officers who would testify under subpoena and not be so happy often depends on the case, obviously. But we’ll do it because it was their job. And here, it feels completely different. The officers feel compelled to take the stand and say, this was wrong. It’s not consistent with our training.

Anne Milgram:

And one of the powerful moments I thought was the moment where they showed how, and the Police Chief talked a lot about this, they showed how members of the police force are supposed to interact with the public. And it really is all about treating the public with dignity and respect and telling them your name, introducing yourself. It’s really just so wildly at odds with the way this interaction went down, really from start to finish.

Anne Milgram:

And I want to talk about the beginning of this in a second. But it wasn’t just that the officers who testified have said, this is not consistent with our training, you can’t do a neck hold like that. They should have stopped, right? They should have rendered aid. I mean, there’s just, the rendering aid piece and assisting George Floyd, I also think is very powerful, and will be a major part of the prosecutor summation, which is how do that this is what Derek Chauvin intended to do and was doing, the fact that he didn’t render aid consistent with his training will be a piece of it.

Preet Bharara:

There are multiple things, right? It’s not just that the prosecution is resting on one mistake made by Derek Chauvin. There are a whole bunch, beginning with disproportionate response to the nature of the crime, which was, or alleged crime. It’s not even clear in his testimony to indicate that George Floyd did not know he was passing a potentially counterfeit $20 bill. So, there’s that in the first place.

Preet Bharara:

Why you need to engage in that force, just to begin with? Then the illegal maneuver of putting the knee in the back of the neck. Then doing it for as long as he did, then not rendering aid, not dealing with the public correctly. So, it’s failure after failure after failure. The common sense tells you and the bystanders told you seem to be wrong and offensive and excessive. And then, his supervisors tell you the same thing.

Preet Bharara:

Sometimes in cases like this, you have some contradictory testimony. And I haven’t seen any here. I mean, the most you have and what the defense will probably rely on is what Derek Chauvin says, now, I agree with you, as we discussed last week, that he will likely not take the stand, but there are some statements of Derek Chauvin that will be in the record, including an exchange he had with a member of the public when George Floyd was being taken away in an ambulance.

Preet Bharara:

And he said, quote, to somebody who was disagreeing with his conduct said, quote.

Derek Chauvin:

That’s one person’s opinion.

Charles McMillian:

But, no, no, no, I got opinion. I got opinion when [crosstalk].

Derek Chauvin:

We got to control this guy because he’s a sizable guy.

Charles McMillian:

Yeah, and I thought he can’t get in the car. I get-

Derek Chauvin:

And it looks like he’s probably on something.

Preet Bharara:

So, this argument, which I think ultimately fails, and I know the listener asked, what arguments of the defense? Are you most worried about? I can’t remember the phraseology.

Preet Bharara:

I wouldn’t be worried about any defense arguments, really. But there are some that they’re going to poke at and try to build up into a larger argument. One is this, look, in that moment. This is a big guy. I say it out loud. Given all the other evidence, I think it fails on its face and won’t be compelling to the jury. But all they need is one jury to believe this.

Preet Bharara:

Look, he was a bit out of control. It is confirmed later that he has meth and Fentanyl in his bloodstream. He wasn’t being cooperative. And one police officer made a judgment call to subdue him, and was a too long, I don’t know, but in the moment, he felt that it was necessary for safety now, that seems to be the best they can do.

Anne Milgram:

Do you think they’re going to argue that Chauvin’s knee was on the back or shoulder? Yes.

Preet Bharara:

The defense has already made suggestions to that effect, which is by the way, a recognition that the knee on the neck is very, very, very bad for them.

Anne Milgram:

Right, I agree. It’s an interesting strategy to think about the defense standing up because what I think, if you play that out a little, I think they have to say, it’s either he had his knee on the shoulder or the back and you misunderstand all you bystanders and everyone watching the video. You’re misunderstanding what you’re seeing, which is a pretty tough defense to make, I think, or he thought he had his knee on the shoulder or the back, it was a mistake.

Anne Milgram:

And I don’t think they’re going to make the mistake defense, but I was thinking what are their options are really available to them? It’s either what you’re seeing, is it correct, like your eyes are deceiving you.

Preet Bharara:

No, well, the argument I think they’re going to make, and we can get to it, I think all this stuff about Chauvin’s intent and where his knee was, and all of that. By the way, there’s other evidence that the knee was on the neck. You had a contemporaneous witness, Charles McMillan, who’s, I think the guy who broke down and sobs just watching some of this video. You can hear him on the video telling the police, quote, “Get your knee off his neck.”

Preet Bharara:

So, he’s there as a particular angle. He doesn’t have a body cam, he’s just a bystander. So, there’s a lot of evidence that the knee was in the neck. I think what the defense is going to have to pour all of its energy is on causation. And to make the point over and over again, that I think that the prosecution is doing a good job of rebutting, but it’s confusing. Medicine is confusing. Cause of death is confusing the people. And they’re hoping for that confusion.

Preet Bharara:

And it has to be that it was a combination of the drugs, it was a drug overdose, or was a cardiac issue. And the terminology gets perplexing here. That’s their argument, look, Derek Chauvin did what he did. You can argue that it was too much or not. We stand by the position that it was a volatile situation. He stayed within its training.

Preet Bharara:

But at the end of the day, the argument would go, you cannot convict our client, Derek Chauvin, because he’s not the reason George Floyd is dead. And they’ll point to, and we haven’t heard all the testimony yet. And presumably, they’ll put on some case of their own, with their own experts to confuse the matter. But I think their best hope is to convince one or more jurors who are confused about cause of death.

Preet Bharara:

A juror who are reluctant to convict a police officer, and you have that in a lot of places. And I think that’s their best shot. And I think it’s a narrow shot. And I don’t think it will work. I’m becoming more optimistic. It’s very early still, I’m pretty optimistic that they have a powerful case. And there will be a conviction. But what do you think about that strategy as a defense?

Anne Milgram:

Yeah, I think you’re right. I think, as we start to pick through the potential defenses, I think that’s their strongest argument. What is also interesting is that it is the one for which they will have the medical examiners. We have not seen the dueling experts testify yet. And so, I think a lot about the strength of that defense will really depend on the medical examiners.

Anne Milgram:

Now that being said, I think that the prosecutor has already taken steps and is already talk to the EMT, the individual who arrived and tried to resuscitate George Floyd and was not able, talk to him about what asphyxiation means, right. And I thought the government, I thought the prosecutors did a really effective job with him, and basically saying like, it wasn’t about a heart attack, it was that he’d stopped breathing.

Anne Milgram:

And so, again, trying to simplify this for the jury, and I think that the defense will want it to be complicated. And that they will want to argue, it could have been one of these other things that caused his death, right? His death was caused by these other things. And if you can’t be sure, as the argument goes, you can’t convict someone of second-degree, third-degree murder.

Preet Bharara:

Yeah, their best point on this, and this was previewed in the prosecution’s defense, right, because they, I think, appreciate this was a weakness, and now you’ve seen it play out a little bit. It’s not just that he had some drugs in his system. It’s not just that he had taken some stuff. But I think both sides understand. And the prosecution concedes, it was a pretty significant quantity. And the prosecution had to preview to the jury, look, if you’re a big guy, and you’ve been taking a certain narcotic for a while, you develop some tolerance of it.

Preet Bharara:

And so, what might kill a petite first-time user is not going to be significant for someone like George Floyd. That’s a bit of a wrinkle and a hiccup. And George Floyd’s, we haven’t mentioned her yet, I don’t think, George Floyd’s girlfriend testified about their addiction and about their struggles, and about an overdose that George Floyd had. All of that seems very reasonable when it’s being discussed in testimony that unfolds at the trial.

Preet Bharara:

But the defense is going to re-litigate that as powerfully as they can in the summation and say, this was a man who had a drug problem, sure. But he was capable of having an overdose. You heard about the overdose that his own girlfriend testified to. He had x quantity of narcotics in his system, that’s proven, that’s not disputed by the prosecution at all. You heard experts testify that this quantity of drug can cause an overdose, can cause a heart to stop, can cause death. There’s a reasonable doubt here.

Preet Bharara:

And by the way, the other thing people need to remember is the defense doesn’t have to prove that he died from an opioid overdose or from cardiac arrest. They have to show a reasonable doubt as to causation. And they’re going to dwell on the standard and say, look, you heard all these people testify, here’s what the girlfriend said, here’s what the facts are with respect to drugs in the bloodstream.

Preet Bharara:

Ladies and gentlemen, there is a reasonable doubt as to the causation of George Floyd’s death, based on all this stuff. That’s their best shot to get people to understand the reasonable doubt standard. And to muck it up with all this confusing stuff, it’s not great that the prosecution has to make the argument about drug tolerance, right?

Anne Milgram:

No, right. I mean, I think the prosecution has done the absolute right thing to just be upfront about all of this, because these are the facts and to call his girlfriend and to have her talk about his struggles with addiction and her struggles with addiction, I think is important. And again, I think with a jury, you want to be up front, and it’s part of the toxicology report. It’s part of the narrative here.

Anne Milgram:

And so, I don’t think there is a choice. And now it’s up to the government really to argue again, and go back to their very basic common sense. You’re going to see it with your own eyes, this was a murder, you’re going to see what happened and to push that. But I do agree, that is the defense’s best argument is going to be that. It is also though, I still think it is problematic, because you are attacking the victim, you are attacking George Floyd.

Anne Milgram:

And no matter how they do it, and how they couch it, at the end of the day, I think the jury… my experience with juries is that they are very wise, and they overwhelmingly see. They see it all. And I think they will see that. And so, I think that’s a real question of how that plays. My instinct is the same with jurors, I think the case is going in very well.

Preet Bharara:

I mean, it’s going in better than I thought it would be a strong case. But I will say from watching for a week in a day or two, it’s stronger than I expected. I think is very, very compelling. I haven’t really seen a misstep. I don’t see a lot of contradictory evidence. When I was making the point about causation, I’m trying to make the best argument possible for the defense.

Anne Milgram:

Yes. Oh, I agree. I want to read to you that this is from a jury instruction that was used in Minnesota in the trial of Officer Mohammed Noor and that was the other police misconduct case that the Chief of Police had testified in. But I read it just for our listeners to understand what reasonable doubt is. And so, this is an instruction that’s previously been given by a judge to a jury in Minnesota.

Anne Milgram:

We don’t know whether this exact language will be used. But it’s fair to say, will probably be similar. And it reads proof beyond a reasonable doubt. The law requires the state to prove the elements of the offense beyond a reasonable doubt. It does not require that the elements be proved beyond all possibility of doubt.

Anne Milgram:

Proof beyond a reasonable doubt is that amount of proof that ordinary men and women would act upon in their most important decisions. You have a reasonable doubt if your doubts are based upon reason and common sense. You do not have a reasonable doubt if your doubts are based upon speculation or irrelevant details. And so, it’s just worth, as you talk about, the government has to prove the case beyond a reasonable doubt that that’s the standard at the end of the day that the jury is going to be a version of that, that the jury is going to be instructed to apply.

Preet Bharara:

So, look, there’s a lot more testimony coming up. I think we’re going to get to the heart of the medical issue. And we’ll be back to you next week to see how it’s going. This is quite a shift in topic from the murder trial of Derek Chauvin to the swirling investigations and accusations and allegations and conflicting and the weird defenses of a particular member of Congress, Matt Gaetz.

Preet Bharara:

So, maybe a great way to get to the next topic of discussion, Anne, is to answer this question from listener Tanya Miller who asks in a tweet, “Preet, WTF is up with Matt Gaetz?”

Anne Milgram:

That’s one of my favorite questions in a long time.

Preet Bharara:

Why don’t we address that? So, I’ve been looking forward all week to talking to you about this Anne, because there are allegations of sex trafficking, of involvement with underage females, one or more. Matt Gaetz seems to be associated with a particular person who has been charged with a number of crimes, Joel Greenberg, in Florida, including sexual misconduct crimes.

Preet Bharara:

I think there are a lot of questions about what constitutes sex trafficking, what constitutes enticement of a minor, whether federal prosecutors can charge someone for prostitution, what a commercial sex act is. There’s a lot of legal issues intertwined with all this salacious stuff that we’re hearing about Matt Gaetz. And you are an expert in this stuff.

Preet Bharara:

So, I’m-

Anne Milgram:

I’m a former human trafficking prosecutor, indeed.

Preet Bharara:

You are. So, I wonder if I could ask you to just, before we get into the details of what we know to be true or not true about Matt Gaetz, what are the things that the law prohibits in this area, and that the Feds can charge?

Anne Milgram:

Right. So, that’s a good high-level starting point. And the way to think about sex trafficking is really… and there’s two different parts of the statute. One part is for victims, survivors who are under the age of 18. Basically, the requirement is a commercial sex act. So, someone and that there’s some form of interstate commerce. And that doesn’t mean that the person, the young woman, or the man has several crossed state lines, but something has crossed state lines.

Anne Milgram:

It’s literally satisfied by a bottle of beer that came from out of state, a condom that came from out of state. And so, that’s never a hurdle. But really, the question is often, what is a commercial sex act? And just to be clear, the law treats underage women differently than it treats women who are over the age of 18. Because it’s this idea that you can’t voluntarily consent to engage in a commercial sex act.

Anne Milgram:

So, the traditional form of a commercial sex act would be think about traditional form of prostitution, a John pays money to a woman in exchange for a sex act.

Preet Bharara:

Right. Like cash like cash. But there can be other things that come to a commercial sex act.

Anne Milgram:

Exactly.

Preet Bharara:

What might those things be? Because Matt Gaetz seems to have used very carefully chosen words to describe what he spent money on.

Anne Milgram:

Right. Well, I think we should put aside what Matt Gaetz has said for now. Because I think part of why people have been so confused, and people keep asking me about this, is because of his statements. And again, I’m not saying that they’re not relevant. It’s just, I would focus on this a little bit differently, and we’ll come back to that.

Anne Milgram:

So, the commercial sex act, just before we go into that, the other part of the sex trafficking statute, and again, this is federal sex trafficking is over the age of 18, there’s a requirement of force fraud or coercion. Meaning someone is compelled to engage in that sex act. And you can think about a lot of the traditional cases that I did with the U.S. Attorney’s offices in New Jersey and Brooklyn, those were cases in which young girls and young women from Mexico were forced into prostitution often.

Anne Milgram:

And so, you could charge both parts of the statute. They were often beaten. Their children were kept from them. They were threatened if they didn’t engage in a sex act. Others were threatened, members of their family were threatened. And so, that’s where force fraud and coercion comes in.

Anne Milgram:

And there have been cases that have found coercion to exist where, for example, a woman is addicted to drugs, and she’s being plied with drugs to engage in commercial sex acts. So then, you come to the question of commercial, what commercial is, and it’s broad. So, it doesn’t have to be just the payment of money. And obviously, that’s because it would be easy to say, well, instead of paying you money, I’ll buy your house.

Anne Milgram:

And that would be an end run around the purpose of the statute. So-

Preet Bharara:

Or here’s jewelry or here’s a gift to some sort.

Anne Milgram:

Exactly. But the key piece here, Preet, and the piece that I think has not been articulated as well as it needs to be, and this is why Matt Gaetz is saying this, he’s basically saying, well, I just took some women to dinner. I got some hotel rooms for women. And he’s trying to appeal to what people do when they date and couches behaviors that… but the question is whether he did those things in exchange for sex acts?

Anne Milgram:

And so, the legal question is for the commercial perspective is, was there a commercial aspect to this? Was money or goods or services, like something of value exchange? And was it done as payment? I use that word loosely, payment for or in connection with for the sex act. So that, I think, is really important.

Preet Bharara:

So, how do you prove that? Can I just ask, and maybe that’s why he’s being clever in the language he’s using. How do you show, and this is, initially, we talked about a lot intent permeates all of criminal law. How do you distinguish between a regular dinner versus dinner that was essentially the price to pay for the sex act?

Anne Milgram:

Right. That’s the right question. And so, if you and I just knew, Matt Gaetz took a woman to dinner and paid for dinner, that in our minds would not be sex trafficking, right? That’s dinner. And so, you [crosstalk] before-

Preet Bharara:

Even if the female is 17.

Anne Milgram:

Well, I mean, there are all sorts of statutory rape laws that could apply. But my point is that you have to prove the commercial sex act. And so, you have to prove the connection between the sex and the payment. And the law is actually, it is expansive, because it includes women under 18. But there’s still a threshold that has to be met.

Anne Milgram:

The way I would think about this, and the reason why I think, it is a very interesting conversation, is that you started with the conversation about the local Florida official Joel Greenberg, who has been indicted. And was indicted last summer on a host of charges, including sex trafficking of a child, that means a woman under the age of 18, a young girl under the age of 18, financially supporting people in exchange for sex, at least one of whom was an underage girl.

Anne Milgram:

And so, one of the questions I think you’ve raised in some of the media appearances you’ve done is, is Mr. Greenberg cooperating, right? What is happening?

Preet Bharara:

Right. He’s got already, right?

Anne Milgram:

Right. So, this is my feeling of when you and I think about proof here, the first pieces is Greenberg cooperating. It feels to me, and also remember that it’s been publicly reported that Greenberg’s devices have been seized. So, his computers have been seized, his cellphone, and that means that investigators would have access to messages, to apps he used for payment.

Anne Milgram:

And so, in a traditional investigation, this is whether it’s sex trafficking, or white-collar theft, you follow the money, you look to see what messaging happened. And this is where it’s also been reported that a number of the women had told their friends that they were receiving things of value from these men. And again, Matt Gaetz hasn’t been charged yet. This is just public reporting.

Anne Milgram:

But this is the stuff you and I would look at, which is, what are the women saying, what were the apps that were used. And there’s some public reporting that Matt Gaetz was using these types of apps with Joel Greenberg to agree on an amount that would be paid and to convince individuals to couch it as hotel parties, hotel rooms, or dinners and stuff like that.

Preet Bharara:

I’m glad you said that, because some of the reporting is very specific. This is from the New York Times in the last few days that says, “The times,” quote, “The Times has reviewed receipts from the Cash App, a mobile payments app, and Apple Pay.” I don’t know how this leaking is happening. But it says, “An Apple Pay that show payments from Mr. Gaetz and Mr. Greenberg to one of the women and a payment from Mr. Greenberg to a second woman. The women told their friends that the payments were for sex with the two men, according to two people familiar with the conversations,” end quote.

Preet Bharara:

So, that is a partial answer to the question we were discussing earlier. How do you prove that something that was purchased was not just a mere gift or just a meal, but actually a commercial sex act? You can have the testimony of the women. And if it was their understanding that this was payment in exchange for sex, well, then there you have it, right.

Anne Milgram:

Yes. And do you think that I think investigators would also be looking at Matt Gaetz’s apps, his bank transactions. There’s some allegations, the hotel ATMs, where cash was being taken out, which would corroborate if a woman was saying, I was paid $200 in cash, and then you have ATM transaction that’s $200 or $500. That’s consistent and corroborate to that testimony.

Anne Milgram:

So, I would suspect if they haven’t done search warrants on electronic devices, they will. I would anticipate they have already. But I mean, this is where I think this discussion of this as the initial discussion was, was the congressmen involved with a 17-year-old girl? Was he traveling with her, is very different than when you flipped the focus to the person who he associated with. Joel Greenberg has been indicted on very serious sex trafficking charges.

Anne Milgram:

And they’ve done a thorough investigation clearly into Greenberg that apparently appears to have led to Matt Gaetz. And again, he hasn’t been charged yet. And he’s entitled to his defense and to the statements he’s making.

Preet Bharara:

But you’re Joel Greenberg, and you’re totally jammed up by the Feds in a serious way, with charges being added and added and added, and you want to be able to get out of prison or get away with not having a significant sense or no sense in prison at all. What’s the best possible thing you can do for yourself? Serve up a sitting Congressman, not just cooperation against anybody, but a sitting Congressman, especially when if these allegations are true, and this is what’s going to be devastating for Matt Gaetz.

Preet Bharara:

Apparently, he probably has, as the children say, literal receipts, right? There are apps that were used. They’re probably electronic communications that can be confirmed and corroborated by toll records back and forth, unless they were using encrypted apps. But maybe Joel Greenberg kept copies of things because people do that kind of thing, when they want to have protection in the future.

Preet Bharara:

So, I think if these things end up being true, and the reporting in the New York Times is very specific. I mean, it also says that a person reported that Gaetz told the women to say that he had paid for hotel rooms and dinners as part of their dates. And that’s phrased in a way that suggests that Matt Gaetz understood and was conscious of the fact that he was committing crimes. And he was trying to coach in advance future witnesses to protect him.

Preet Bharara:

The reporting also says that Mr. Gaetz, with other folks, took ecstasy, which is an illegal mood-altering drug, in connection with these encounters. I mean, there’s a lot of stuff here. It’s not confirmed. We should be very careful about that. It’s the New York Times. The New York Times is not perfect, but these are good reporters.

Preet Bharara:

And clearly someone has some reason to be giving a lot of detail about an ongoing investigation. By the way, and when you talk about what has been done so far in terms of investigation, probably a lot. We should remind listeners that this investigation was known by and approved by the prior administration. That it was briefed up to, according to reporting, was briefed up to Bill Barr.

Preet Bharara:

So, you also can argue that it’s a political hatchet job. This has been going on since Donald Trump was president.

Anne Milgram:

Yeah. And I think we’re going to see more on this and it will continue to unfold. And we should note, Matt Gaetz has denied all of this. I mean, he basically has said, “Go check the records. It’s false that I’ve traveled with a 17-year old woman.” It’s not clear to me.

Preet Bharara:

What records, though?

Anne Milgram:

Exactly. It’s not clear to me what records

Preet Bharara:

I don’t know what records.

Anne Milgram:

Yeah, I’m not sure either. But he’s also, we should touch on this just for a minute, part of his defense, which is very strange thing is, I was being extorted. And this is all about an extortion attempt by, I think it’s a former Air Force intelligence officer, and a former individual in connection to an individual that was being held abroad. And ultimately the Trump administration said was killed while on a CIA mission.

Anne Milgram:

And so, it just added this level of confusion and intrigue. Last week, and Matt Gaetz said, “My father talked to the FBI. He wore a wire in connection with,” and this allegation is that the two folks had come to Matt Gaetz and said, “We hear you’re in federal trouble. And we think if you can help to gain the release of this individual who they don’t believe has died in foreign custody, then this would be beneficial for you.”

Anne Milgram:

It’s very strange. I wonder what you make of it.

Preet Bharara:

It’s bizarre.

Anne Milgram:

Yeah.

Preet Bharara:

Look, some of it must be true. And I think Matt Gaetz is not necessarily an honorable and honest person. But you can’t make that whole thing up completely out of thin air. There’s got to be some kernel or basis in fact there, I would expect. Even from someone like Matt Gaetz, doesn’t mean those two things are connected in any serious way. I mean, even by his own telling, it sounds like this alleged extortion business occurred fairly recently.

Preet Bharara:

But the investigation of Matt Gaetz for this sexual misconduct and other things has been ongoing for months. He tries to allied some details by saying it’s a former Department of Justice official. And I’ve said this before, to make it sound like somebody who’s on his case and knew about the investigation of Matt Gaetz is suddenly in private practice now, and is trying to extort him, turns out that the person he’s talking about hasn’t been in the Justice Department for 20 years, or more than that.

Preet Bharara:

And two things can be true at once. You can be investigated and maybe be guilty of various crimes. And some other low life or low lives are trying to take advantage of your situation by engaging in what could be seen as an extortion scheme. I don’t know if that’s true or not. But the one doesn’t negate the other.

Anne Milgram:

Yeah, it’s a good point. And I think part of what it did over this past week was just add a layer of confusion and people asking what is happening. And it’s really important, I think, to separate the two conversations as we’ve done here. And to obviously point out, you’re right, both things can be true. And we don’t know yet, but it is definitely a very strange twist.

Anne Milgram:

And it also just a very strange answer in some ways to this these very serious allegations. It’s strange to me to say, well, this is all part of this other thing that I’m being extorted in. And so, that presumes that those other two individuals are getting all these women to come forward and make these allegations, right?

Anne Milgram:

And I think, to your point, ultimately, if it turns out Greenberg is cooperating, if these women are cooperating, as has been noted, if the government does have evidence of these back and forth, that the extortion defense will just be a red herring. It will be irrelevant to this question of the government’s investigation.

Preet Bharara:

Rights. It’s a press strategy.

Anne Milgram:

Yes.

Preet Bharara:

There’s one last thing we should say about him. I think there will be a move for an ethics investigation because there’s other reporting that suggests, and I wonder what you think of this, that on the floor of the House of Representatives, the people’s House, he was showing nude pictures or videos of women to other members of the House, boasting that he had had sexual relations with those people. And as someone asked if we get who it was, who wrote this piece, how does that happen more than once? How does that not stop the first time it occurs?

Preet Bharara:

That may not be a criminal act. That may not be something the FBI investigates. There are other kinds of privileges that attached to what members of Congress do on the floor of the House. But my goodness, what do you think of that?

Anne Milgram:

Yeah. I mean, my reaction is the same as yours. And I think the question I would have is, was it reported, right? Obviously, people are coming forward to report, having seen these videos, and there’s some specific details about the videos. And so, it feels authentic. But of course, these are important questions.

Anne Milgram:

But were those instances reported? Were they reported to leadership in the House? Were they reported to the ethics? There’s a committee in Congress that accepts complaints about members of Congress. And so, I really want to understand what happened here, and whether any of those things took place.

Anne Milgram:

And if they didn’t, why they did it? Because it really is, it’s astonishing. It is so deeply distressing. It is the year 2021, and it’s just hard to believe. And of course, I’m not being naive about this, but it’s just so disturbing to think that that’s happening, and particularly happening on the floor of the United States House of Representatives, which by the way, we should note is both women and men work there.

Anne Milgram:

And you can create a hostile work environment if women are subjected to men. There are plenty of cases where women are at work, and men are watching pornography. And it sounds like I’m generalizing that everyone does, that said of course they don’t. But there have been instances where individuals at a workplace are exposed to sexually graphic videos, and that is found to really constitute a hostile work environment.

Anne Milgram:

It makes someone feel unwelcome and harassed in their work environment as far as sexual harassment goes. So, I think these needs to be investigated and looked at thoroughly. And if it wasn’t reported, I think that it raises really important questions of how do you make sure that these kinds of things, if they’re true and accurate, get reported and fully investigated.

Preet Bharara:

A lot of enabling going on. I mean, Matt Gaetz, not much of a legislator, he has a long history of doing other things. He essentially threatened Michael Cohen on the eve of his testimony before Congress. He made light of the pandemic in the early months, in a way that even then was beyond, I think, acceptability.

Preet Bharara:

But he has been promoted and enabled, not just by the former president of United of States, but by his colleagues. There are some reporters who say they’re receiving so many off the record texts from Matt Gaetz, his Republican colleagues now about how they never liked the guy. And they believe some of this stuff, and some of his Republican colleagues are saying, he’s not going to be long in office. His days in Congress are numbered.

Preet Bharara:

Well, where were these people back then, when these things were going on? And so, whenever we talk about any of these kinds of things, it’s important obviously, and almost everything we talked about, whether it’s Donald Trump or Derek Chauvin, or Matt Gaetz or others, it’s important to look at the culpability of the individual and what you can prove and what the investigation shows, and how you can hold people responsible for their own actions.

Preet Bharara:

But it’s also worth thinking about who the people were, who enabled them, and let them get away with it, and didn’t say something when they saw something, because that’s important, too. Talk to you next weekend.

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, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Korn, Geoff Isenman, Chris Boylan, Sean Walsh and Margot Maley. Our music is by Andrew Dost.

Preet Bharara:

Thank you for being a part of the CAFE Insider community.