• Transcript
  • Show Notes

On this week’s episode of Stay Tuned, “The Chauvin Prosecutors,” Preet interviews Jerry Blackwell and Steve Schleicher, the two lead prosecutors in the trial of Derek Chauvin, the former Minneapolis police officer who was convicted of murdering George Floyd. 

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis by Elie Honig, a weekly roundup of politically charged legal news, and historical lookbacks that help inform our current political challenges.

Vote for Stay Tuned! We’re in the final stretch of voting for the Webby’s People’s Voice Award. This year, Stay Tuned has been nominated for Preet’s February 2020 conversation with Dan Goldman, who had just served as lead House counsel in the first impeachment of Donald Trump.

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

Stay Tuned with Preet is produced by CAFE Studios.

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio Producer: Matthew Billy; Editorial Producers: Sam Ozer-Staton, Jake Kaplan, David Kurlander.

REFERENCES & SUPPLEMENTAL MATERIALS

THE INTERVIEW

  • Attorneys Steve Schleicher and Jerry Blackwell discuss Derek Chauvin trial, verdict, KARE 11, 4/26/2021
  • “Chauvin’s prosecutors reflect on the lessons from the trial,” PBS NewsHour, 4/29/2021
  • “60 Minutes Interviews the Prosecutors of Derek Chauvin,” 60 Minutes, 4/26/2021

BLACKWELL AND SCHLEICHER

  • Nicholas Bogel-Burroughs, “What to know about Jerry W. Blackwell, the prosecutor making opening arguments,” New York Times, 3/29/2021
  • Robert Iafolla, “Chauvin Prosecutor’s Closing Arguments Paint Floyd as Devoted Son,” Bloomberg Law, 4/19/2021
  • Njeri Mathis Rutledge, “Black prosecutors inspired trust and hope at the Derek Chauvin trial. We need more of them,” USA Today, 4/28/2021

THE PROSECUTION

THE TRIAL  

  • Preet Bharara, “Note from Preet: Pride Over Policing,” CAFE, 4/22/2021
  • 5th Amendment to the U.S. Constitution
  • Minnesota v. Derek Chauvin, Hennepin County District Court, jury instructions, 4/19/21
  • Issues Relating to Discovery (Giglio and Brady), Department of Justice
  • Ray Sanchez, Christina Carrega and Nicquel Terry Ellis, “’The lessons of this moment.’ The testimony by police brass at Derek Chauvin’s trial is unprecedented,” CNN, 4/10/2021
  • Laurel Wamsley, “Park Police Officer Who Provided Backup Testifies In Derek Chauvin Trial,” NPR, 4/13/2021
  • Nia Prater and Margaret Hartmann, “Chauvin Trial Closing Arguments: ‘You Can Believe Your Eyes,’” Daily Intelligencer, 4/19/2021
  • Jeannie Suk Gerson, “The Vital Role of Bystanders in Convicting Derek Chauvin,” The New Yorker, 4/21/2021
  • Hannah Knowles, Timothy Bella, Marisa Iati, and Meryl Kornfield, “Defense expert says Derek Chauvin did not cause George Floyd’s death as cross-examination grows tense,” Washington Post, 4/14/2021
  • Janelle Griffith, “’Lackluster performance’ by Chauvin defense leaves experts debating trial’s outcome,” NBC News, 4/18/2021

THE VERDICT

  • Minnesota v. Derek Chauvin, Hennepin County District Court, Verdict Count I, 4/20/2021
  • Minnesota v. Derek Chauvin, Hennepin County District Court, Verdict Count II, 4/20/2021
  • Minnesota v. Derek Chauvin, Hennepin County District Court, Verdict Count III, 4/20/2021
  • Minnesota v. Derek Chauvin, Hennepin County District Court, Interim Order for Commitment and Return, 4/20/2021
  • Brakkton Booker, “Chauvin’s murder trial ends. The waiting begins,” Politico, 4/20/2021
  • Philonise Floyd, “For my brother George Floyd, this is what justice feels like,” Washington Post, 4/21/2021
  • Audra D. S. Burch, Amy Harmon, Sabrina Tavernise and Emily Badger, “The Death of George Floyd Reignited a Movement. What Happens Now?” New York Times, 4/22/2021

THE CHARGES

  • 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, 6/3/2020
  • Emily Bazelon, “Chauvin received three guilty verdicts for one crime. Here’s why and what it means for his sentence,” New York Times, 4/20/2021
  • Peter Beaumont and Sam Jones, “‘Guilty, guilty, guilty’: world’s media react to Chauvin trial verdict,” The Guardian, 4/21/2021
  • Pilar Menendez, “Prosecutors Say Floyd Died Because Chauvin’s ‘Heart Was Too Small’ as Case Heads to Jury,” The Daily Beast, 4/19/2021

Published May 6th, 2021

Introduction:

Preet Bharara:

Hey folks, a quick note before we get started. As I told you last week, Stay Tuned with Preet has been nominated for a People’s Voice Webby Award for best episode of a news and politics podcast. The episode features my conversation with Dan Goldman, who offered us his first interview after serving as lead House Majority counsel during the first impeachment of President Trump.

We’re neck and neck with some very formidable fellow nominees and need your help to pull off another Webby’s victory. So head to vote.webbyawards.com and search for Stay Tuned or Preet to cast your ballot. You can also find the direct voting link in the show notes of this episode. Today, Thursday, May 6 is the last day to vote. Thanks as always for your support. From CAFE and the Vox Media Podcast Network, this is Stay Tuned. I’m Preet Bharara.

Jerry Blackwell:

Having spent almost six decades as an African American man, seeing this, I was just breathtakingly stunned in the outrageousness of it.

Steve Schleicher:

This is somebody’s life. This isn’t a victory in that sense. It’s an acknowledgement of the truth of what happened, but it’s not a cause for celebration.

Preet Bharara:

That’s Jerry Blackwell and Steve Schleicher. They’re the two men who led the prosecution of Derek Chauvin, the Minneapolis police officer convicted of murdering George Floyd. Blackwell and Schleicher are both private attorneys. In July of last year, Minnesota Attorney General, Keith Ellison, asked each of them to join the prosecution team. They had never met.

Blackwell, an accomplished civil litigator who had never tried a criminal case, ended up giving the opening statement. And Schleicher, who served for 13 years as a prosecutor in the US Attorney’s Office in St. Paul, gave the closing argument. Today, the pair joined me for the longest and most in-depth interview they’ve given since the trial.

We talk about the trial’s big moments and key decision points, but we also discuss what the verdict meant for these two men personally, and for the cause of racial justice in this country. I found the conversation both powerful and deeply revealing. So this week, we’re doing something a little different. Instead of taking your questions, we’re going straight to my full interview with the team that secured the conviction of Derrick Chauvin. That’s coming up. Stay tuned.

Interview:

Preet Bharara:

Jerry Blackwell and Steve Schleicher, welcome to the show.

Jerry Blackwell:

Thank you glad to be here.

Preet Bharara:

It’s a real honor and treat to have you, given how much you have done for the country and for the justice system. I want to thank you for your service, which by the way, I don’t know if everyone knows this. Each of you is in private practice and you performed your services at the Derrick Chauvin trial for free, as we say, pro bono. So thank you for that as well.

Steve Schleicher:

You’re welcome. Thank you.

Preet Bharara:

I’ve got a lot to ask you about the trial, the nature of the trial, strategy of the trial, the meaning of the trial. So let’s get through as much as we can and I almost wasn’t sure where to start and I thought, “Well, why don’t I start at the beginning,” which is not the trial, which is not the opening statements but the actual killing of George Floyd himself last May, May, of 2020. Both of you are in private practice, had no idea that you’d become involved in that case in any way. Probably had no idea if there would ever be a criminal case against anyone. Do you recall how you reacted to the murder itself? What reaction you had when you saw the videotape, when you were still just private citizens?

Steve Schleicher:

I do remember that reaction. Having spent over two decades as a prosecutor, law enforcement is something that I have a keen interest in, a lot of friends in law enforcement and a real love for law enforcement officers. I remember looking at that, and seeing it and not recognizing it at all, as something that should be coming from a law enforcement officer. It really just hit you right straight in the stomach, right straight in the heart.

Steve Schleicher:

I remember after seeing it, knowing that I would probably be called in my firm, I’m in a relatively small firm, about 80 lawyers, I would be called to contextualize the events because there’s not anybody else in my firm has same exact background as me, spending that much time as a prosecutor.

Steve Schleicher:

So I spent a lot of time over the next few days talking to different partners, associates, staff members, just about what had happened and helping our firm process it because it really was wrenching to everybody.

Preet Bharara:

And Jerry?

Jerry Blackwell:

Having spent almost six decades as an African American man, seeing this, I was just breathtakingly stunned in the outrageousness of it. What exactly could equal protection mean or what is the rule of law, if there isn’t some accountability for that? At the same time, there was this uncertainty in your stomach, that nothing may come of this at all, because we’ve been at this intersection before of to the outrageous misconduct imposed upon black people, brown people, colored people, because of the immutable characteristic and quite often, the rule of law itself has protected that.

Jerry Blackwell:

So my initial gut reaction was that the sense of outrage, the sense that that’s an earthquake, and what’s coming next is a giant tsunami, and public reaction. I do a lot of work for Fortune 500, 100 companies and I’m one of the few people, some of them know that they would categorize as “woke” for the white in-house counsel.

Jerry Blackwell:

So I expect that I might hear from a number of them, just what their reactions, what my thoughts might be and sure enough, I did hear from a number of them, two of them in tears when they call and one of the statements I was told was, “It was so shocking to me as a white person, because I don’t believe that ever would have happened to me as a white person and there it is in my face,” and they were simply shocked and stunned by it.

Jerry Blackwell:

So it was just the sense of the shock and the outrage of the whole thing and the apparent callousness of the police officers involved was just stunning.

Preet Bharara:

Jerry, I hadn’t heard him say that before and I remember having that reaction too when I was watching and thinking to myself, and then hearing what the whole call was about. Suspected counterfeit $20 bill. I remember thinking to myself, well, that would not have happened to me. They would have assumed it was a mistake. They would have asked me about it and if it became apparent that it wasn’t a mistake, they probably would have given me a ticket-

Jerry Blackwell:

Written you a ticket-

Preet Bharara:

And gone on my way. So I do remember thinking that as well. Did you, Steve, given your experience as a former prosecutor, aside from being horrified by what you saw, did you form a view as to whether or not this was a prosecutable criminal case against one or more officers at that time?

Steve Schleicher:

I certainly did believe that that was going to be a prosecutable case against Chauvin.

Preet Bharara:

You’ve forgotten his name already.

Steve Schleicher:

Well, I know I was caught mispronouncing it several times during the trial between Chauven and Chauvin. The first time I heard it, I think someone said Chauven, and so it was hard for me to switch. I remember thinking to myself that that looked like excessive force, just on the face of it, based off the placement of his knee on George Floyd’s neck. I also had a healthy sense of reality in that I think that the track record is pretty clear in terms of how many officers are prosecuted for offenses like this, and then how many are ultimately convicted.

Steve Schleicher:

I don’t think that I really questioned whether or not charges would be brought. I was questioning at what level but always, always wondering if the officers involved would ultimately be convicted, because it’s just very difficult for people to accept that a police officer would have done something intentionally wrong. We tend to try to think of any reason that could be a possible rational explanation for what it is that we’re seeing that looks so plainly wrong, but we’re wired to believe the police from a very young age.

Jerry Blackwell:

At least we, meaning, white America, not black or brown America that have different experiences since childhood.

Steve Schleicher:

Perhaps that’s so Jerry but also let’s not forget how many people of colored called the police on the police when they saw this horrible thing happened. I think that no matter what your mistrust is, there still is something that makes you reach out. Even George Floyd believed the police would help him.

Jerry Blackwell:

Sure, but I’m simply saying there isn’t this reticence or wholesale endorsement but disbelief in the idea that the police could ever do this. Because for me, my most nervous moments as a citizen simply minding my own business, is driving on the street and noticing that there’s a police car behind me and I couldn’t remember a really a time in my life where there was a police car behind me where I felt more comfortable, where I felt safer, where I did not feel that risk.

Jerry Blackwell:

If you’re not going to be hurt, then you certainly are going to be harassed, you’re going to be stopped for no reason and in all likelihood, there’ll be some callous person who gets out of a car, and who just gratuitously speaks to you in a nasty way for no reason and all of which you’d just like, just to avoid.

Jerry Blackwell:

So that’s what, for me as an African American lawyer, even, “protect and serve” has meant. That’s what it translated into and I have very few experiences to the contrary, when I just randomly encountered police no matter where I’ve been in the country.

Steve Schleicher:

I’ve literally never had the experience of being pulled over for no reason, based on the color of my skin. So that’s an experience that you can describe it to me, but I don’t really get it. I understand what you’re saying, but it doesn’t have the same meaning to me as someone who’s experienced that.

Preet Bharara:

Jerry, that experience that you’ve had many, many times in your life, did that play some role in your agreement to get involved in the prosecution of this case coming out of private practice?

Jerry Blackwell:

Certainly, yes. It meant I had a personal connection with the inhumanity of it, with the objectification of people by the police that way. For me, it’s a form of random violence, even. You don’t know this person, this individual, they haven’t really done anything that’s unlawful. You simply have targeted them for negative aggression, because of an immutable characteristic they have and the fact that you have a badge that gives you cover to do it.

Jerry Blackwell:

I’ve experienced it many times in my life, and sometimes as a lawyer, leaving my office with my briefcase and white collar on, and still harassed in various ways by the police who stopped me for no reason. Or they are pulled behind my car when I come out of my building and I stop and look to say, “Is there something wrong?” They point, “Get in your car,” and just point to get in your car, and I drive away and they blocked, then they put the light on anyway, and then pull you over and I get a lecture about being three feet from the curb, and I can write you a ticket and all kinds of other things that were said to provoke, actually, and I just didn’t take the bait, because taking it would have meant they would have justified it in escalating things.

Jerry Blackwell:

So that definitely played a role for me that George Floyd, for so many black and brown people was in a way emblematic, and I’m not talking about the drug addiction, and so on. But just that kind of harsh callous treatment, is something we can all relate to, because we’ve all experienced it in degrees. We know what that looks like and what that feels like and the fact that quite often it goes without any redress whatsoever under the law.

Jerry Blackwell:

It’s just an injury that you just have to live with, because there’s nothing that you can do and you have to then go before juries quite often where the majority of people find the whole experience foreign to them, and-

Preet Bharara:

Because it’s never happened to them.

Jerry Blackwell:

It’s never happened to them and it may be their uncle, sons, brothers, fathers, and so on who behave this way, but I know things about apparently, there aren’t people they don’t know, in terms of how they behave.

Preet Bharara:

Well, that’s why these videotapes, not just in the George Floyd case, but in all these other cases are important because people who have not experienced this kind of thing, are now witnessing those things on videotape and as you said at the trial, they can believe their own eyes, right?

Jerry Blackwell:

That’s right. If you wonder, just watch this and the trial was … You’ll talk more about it in detail in a second, but even at the opening statement, I was intentionally subdued and factual in the presentation in the opening, because I thought the videos spoke so much for itself, by itself, and they didn’t need any contribution from me with respect to vitriol or anything added to it. So I simply wanted to basically tee it up, and let the jurors see for themselves and experience for themselves and for those who wouldn’t otherwise believe, well, seeing is believing.

Preet Bharara:

You raise this issue of treatment in the hands of the cops. Now you are well known, your face is well known, your name is well known and you have successfully prosecuted a police officer. Have you had any interactions with police since the trial? Anything notable?

Jerry Blackwell:

We both have obviously many interactions with the police who were all around the courthouse, the various sheriffs and other officers who were at the courthouse all the time. I will tell you and maybe Steve will speak to this too, but it was overwhelmingly positive. I can’t really tell you how many police officers who were there came up to say thank you for doing this, that when these kinds of things happen, it reflects badly on the rest of us and we had police officers come up and say that. Now driving around in the Twin Cities, I haven’t had an encounter with the police and I have to say I’m grateful for that because no idea what I might encounter still.

Preet Bharara:

I’m going to get into the details of the trial in a second but first let’s talk about for a moment how you both wound up on the trial team. At some point, the case did not proceed under the local district attorney’s office supervision. It was transferred to the attorney general’s office in Minnesota and was under the supervision of the Attorney General of the state, Keith Ellison and each of you was contacted by Keith Ellison. Neither of you, I believe, really knew him. I think one of you had never met him at all, never spoken to him.

Steve Schleicher:

That was me. I had never met the Attorney General Ellison before, never spoken with him.

Preet Bharara:

Did you think it was a wrong number?

Steve Schleicher:

… Known him for a while.

Preet Bharara:

Were you surprised by the call?

Steve Schleicher:

I was surprised by the call. In fact, I saw there was a … I’m working at home. This is all in the context of the COVID pandemic as well. So you have all of those different things that happened. I saw that I had a missed call on my phone, and I just missed it. So I hit redial and it was the Attorney General. I could recognize his voice, he said, “This is Keith Ellison.” I kind of laughed, because I didn’t think that it really was. I thought somebody might be playing a joke on me but then it became clear, it really was him.

Steve Schleicher:

He called me, he reached out … Because he was wondering if I would be able to help him out with this case. I just remember thinking to myself, as you know, you’re a prosecutor. At some point, in your career as a prosecutor, if you go down that path, you stop thinking of yourself as a lawyer, and you think of yourself as a prosecutor.

Steve Schleicher:

I left that office in 2017, January 2017. So when I get this call asking to help with this case, it stirred up a lot of feelings in me in terms of what I love doing so much. I love being a prosecutor. It’s a really big part of my identity. He asked if I can help with a case and of course, my initial reaction was, “Well, yes. I would love to do that. Absolutely.”

Steve Schleicher:

I’d seen the video, I knew that the state was in a significant amount of pain. The city, the state, the whole country was in pain and just as a prosecutor, you find yourself in that position where you need to walk with someone who is going through pain and trauma, whether it’s a family of a murder victim, or sexual assault, any sort of crime. So that was my instinct.

Steve Schleicher:

Of course, I had to call my partners, and ask them if that was something that I could do. They were very receptive and very supportive of the effort. The firm that I belong to was kind of born of some anti-Semitism. Some smart attorneys who gone to Harvard, and came back to Minnesota back to Minneapolis at a time in the late 40s anti-Semitism was high, and they couldn’t get hired.

Steve Schleicher:

So they started their own firm, and they always had this culture of allowing lawyers to follow their conscience. One of our founders was in the Nuremberg Trials, was a prosecutor. They supported attorneys who’ve supported the ACLU and whatnot. So they were very supportive of that. I was just so grateful that they would do that.

Preet Bharara:

Did you think it was odd at all, given the resources of the state, and the number of assistant attorneys general that there must be in that office, that they would go outside the office to find people to try the case?

Steve Schleicher:

I think I was aware that … Because remember, I came from that office. I worked at the Attorney General’s Office from 2000 to 2003, at a time when they had a fairly robust criminal trial division doing a lot of cases all over the state. We have 87 counties in Minnesota, seven county metro area. They handle a lot of their own complex prosecutions and homicides, but the AG’s office did a lot of the out-state stuff.

Steve Schleicher:

During that period of time when I was at the US Attorney’s Office, there was some attrition in the office that wasn’t replaced. I think there was more of an emphasis on consumer protection and whatnot. So I didn’t think that the criminal trial division was actually that large at the AG’s office. So I could see where they would want to get some people to help support the case.

Steve Schleicher:

I think I thought, and Jerry thought, I’ll let him speak for himself, that we will be more on a consulting basis. Just had had some experience of prosecuting a civil rights case before and certainly had a lot of prosecution experience. I thought that I’d be working more in that capacity.

Preet Bharara:

Then Jerry, with respect to you, this is stunning to people who are in this business. Not only were you not a former prosecutor, you were not even a criminal defense lawyer, and it’s unusual for people to have the kind of trust, faith and confidence in you that Keith Ellison clearly had. I wonder, as I heard you speak earlier in the conversation, whether in some way you think that not having that prosecutorial background, and not having had the experience of working shoulder to shoulder with law enforcement, including with police departments and police officers, was that somehow an advantage to you?

Jerry Blackwell:

It was in the sense, it was an advantage. It was, for me, both a strength and what no doubt made me supremely frightening to a number of people.

Preet Bharara:

You’re clearly an accomplished trial lawyer and I should say, I haven’t said this yet. You two and the rest of the team did an outstanding job. I noted that multiple times on social media, but when when I learned, and it took me a while to learn that you had not tried a criminal case, I will tell you that I was shocked.

Jerry Blackwell:

Right. I had, I think I agree with Steve that we initially thought that that we would be essentially behind the scenes, maybe helping with strategy or approach to witness or witness prep, or that sort of thing. I think that General Ellison called me because I do try cases and I’ve had to try hard cases, in tough jurisdictions, mostly outside of Minnesota, I’ve been in various parts of Mississippi and in Oakland, in Madison County, Illinois.

Jerry Blackwell:

I’ve had to go in there for Fortune 500 companies, Fortune 500 companies, they quite often have difficult stories to tell as defendants. You have tough histories to deal with, tough witnesses, tough documents, and you have to figure out in every case, strategically how to win with that. I’ve had quite a bit of success by the grace of the Lord doing it and I think he felt that some of that might be useful to this team, but again, I thought it would be more or less in a support kind of role, function and I’ve evolved to be something other than that.

Jerry Blackwell:

I’ve always said as a trial lawyer, I think with the right support you can really try any kind of case because there’s no such thing as a criminal jury and a civil jury. A jury is a jury and if you have a narrative, if you thought through the strategy, if you know the law and if it don’t manage to mess it up such that you can’t keep your verdict when it goes up on appeal, you’ll be alright. So it was the first foray and believe you me, as I describe myself as freshwater alligator in a saltwater crocodile pond.

Preet Bharara:

I will tell you that metaphor is a little bit lost on a New Yorker like me. It’s very colorful. I don’t even know the difference between an alligator and a crocodile.

Jerry Blackwell:

Well, we don’t have them in Minnesota, we just have mosquitoes. So I was stepping gingerly most of the time here to make sure I wasn’t running afoul of something that’s a tripwire specific to criminal law since there’s no such thing as a Brady or a Giglio in my civil world for starters, and I had to deal with this. What? You mean, we’re going to give them that? Are you kidding?

Preet Bharara:

What are you talking about?

Steve Schleicher:

I would say, “Yes, Jerry, we are going to give them that on a silver platter.” I would say Preet, just in those initial conversations and describing the case, it would be impossible to listen to Jerry describe the case and not think that he should have a significant stand up role in the trial. I felt that right away and apparently so did Attorney General Ellison. Just as we progressed and involved in our various groups, talking about the different parts of the case that we were trying to help with, I just think the roles merged.

Preet Bharara:

Jerry, can I ask you, did anything about this experience caused you at least for a moment to regret that you had never spend time as a prosecutor?

Jerry Blackwell:

That’s quite a question. A great-

Preet Bharara:

Well, you’re very good at it, and you accomplished something important. So I wonder if you’ve thought about that?

Jerry Blackwell:

No, I didn’t think I made a wrong life choice. I did think because this is the first time in my life professionally, where it made just eminently good sense to me to jump first, to leap first and then worry about the landing second. After that jumped out here into this, it dawned on me once I committed to it, wait a minute, you’ve never done a criminal case in your life. You could end up as a quote on a T shirt. This could be the end of whatever-

Preet Bharara:

Something about alligators, a dead alligator.

Jerry Blackwell:

Right, and whatever traction you’d gained as a civil practitioner may be lost too, and reputation ruined. So in that sense, I certainly wished that I had the kind of criminal experience that Steve has, or had, but at the same time, this is an issue. It was not just a case, it was a cause. For me, it was worth landing on the line with whatever I had and just to put it all up. So I just set that all aside and my worries about how I might be impacted, but I didn’t think that I had missed my calling, and that I should have been a prosecutor, even in the civil world. I’m happy taking on a plaintiff’s case, although I do mostly defense work. I’m always guided by, what’s the true foot position that I can take a stand on. Whether I’m defending it or prosecuting it, it feels the same to me.

Preet Bharara:

Right. Did you guys write a lot of notes to each other during the trial? It was hard to see, depending on the camera angle, but do you each do your own thing or are you communicating with each other and the rest of the team during the trial on a regular basis?

Steve Schleicher:

That was hard because of COVID. There were some limitations. We really weren’t able to-

Jerry Blackwell:

We had rules that we weren’t supposed to be-

Preet Bharara:

Rules? There were rules?

Jerry Blackwell:

Yes. There were rules that-

Preet Bharara:

In a court room-

Jerry Blackwell:

That we were not supposed to be passing notes.

Preet Bharara:

Why? Because of COVID?

Steve Schleicher:

It was because of COVID. They had all this plexiglass up and all this other stuff and of course you find ways to communicate. We’ve spent so much time together, I’d say over the last nine months and-

Preet Bharara:

You learn telepathy.

Steve Schleicher:

A little bit. You’ve been in situations where you-

Preet Bharara:

You guys are far more impressive than I even realized.

Steve Schleicher:

Well, tell your friends-

Preet Bharara:

I’m kind of in awe.

Steve Schleicher:

We had a very structured communication chain. We had meetings that took place at prescribed times afterwards, and Keith Ellison kept us very much … There was definitely a chain of information flow such that we weren’t up there winging it. We had a plan going in the court and was executing the plan.

Preet Bharara:

So the question, it’s a broad question I want to ask, that is not about the evidence. I don’t know if you have a theory on this. I’ve always thought that every trial, civil probably also, my experience is in criminal, that you have to have a theme, or one or two related themes of the case. Why? It’s not required as part of your proof. They don’t make up the elements of the case, but there have to be themes and there also have to be thoughts about what the case is not about.

Preet Bharara:

I noticed as you try the case, and the evidence came in, your team was very clear on what the case was not about, and was fairly clear on what the case was about, although some things were omitted. I’ll get to those in a moment, but did you think about this case, not just in terms of what the building blocks of evidence were, but what the theme of the case was?

Steve Schleicher:

Absolutely. In fact, I think that in terms of our first meetings, from our very first meeting, that was really Jerry’s lane was as a trial lawyer. Of course, I certainly did the same thing as a prosecutor, but you do need to pick a theme. You need to be able to give jurors just a way of thinking about the facts and the evidence, because it is. It’s a compelling story. It’s real. It’s heartbreaking. It’s tragic, but it’s important that you’re able to touch the jurors in a way that they’re going to be able to remember the evidence and the facts that you present to them.

Steve Schleicher:

We did spend a lot of time talking about our themes and developing our themes, and in one of those first meetings, Jerry said the words that you can believe your eyes. Of course, that was probably the most important theme.

Preet Bharara:

What’s the theme there, Jerry? Is it common sense?

Jerry Blackwell:

It is. It’s a common sense theme and it is also its own nature of a theme that deflects the efforts to have the jurors look away from what they’ve seen to listen to some more of what you’re telling them, the lawyers’ version of what they’ve seen. You don’t need lawyer speak, lawyer span, any of it. You can believe what you have seen for yourself, and it was to get the jurors back to the video because I felt any ordinary human being would see that and would have a good sense of what they had just seen, which is essentially a man dying one breath at a time with a callous officer on top of them.

Jerry Blackwell:

I fully expected that the defense would be doing everything they can to have the jurors look away from the video and to substitute instead lawyer argument and testimony and I want to bring it back to believe your eyes. Believe your eyes, it’s homicide, it’s murder.

Preet Bharara:

Here’s something that I think is difficult maybe for some folks to understand as we talk about theme and as we talk about what this case is really about both in the courtroom and for the wider, broader country at large. We began this conversation talking about interactions between black citizens and white police officers and that’s clearly how millions of Americans have been talking about this case that you two gentlemen tried, and for the country, given the protests and the videotape, and the larger problem of criminal justice reform and policing and the treatment of black and brown people in this country by law enforcement, in too many cases, that’s what the country has been roiled up about.

Preet Bharara:

That’s been what has galvanized so many people. That’s what’s getting senators and the president of the United States to talk about the issue of. Racial justice, that was not a theme at the trial and I understand why, but could each of you address the disconnect between how the whole world saw this case, and the racial implications of it, and the underpinnings of it but how that didn’t make any showing at the trial?

Steve Schleicher:

Sure. As you know, when you’re trying a criminal case, there are elements you need to prove. We were very cognizant of the fact that the world was watching. The world’s talking about our case. They have opinions. Some of those opinions were shared very generously with us during the trial. They’d email things that they think we should bring out or whatnot, but the fact of the matter is that we weren’t trying the case to the world, we were trying the case to 12 people.

Steve Schleicher:

We were trying the case to it to a jury and we knew that at the end of the trial, the world isn’t going to be in the deliberation room with them. All that’s going to be there is their collective memories of the evidence, the exhibits that we marked and entered into evidence, and those jury instructions, which are going to lay out all of the elements that they have to find.

Steve Schleicher:

Just in my experience trying cases, especially criminal cases, jurors take that very seriously. They do not take those responsibilities lightly and they pour over that stuff. So we could talk about those issues of racial justice and inequity, and there’s certainly a place for that but that place is not in a criminal trial. In a criminal trial, what we need to talk about is the evidence, and we need to prove that case and maybe that case becomes a springboard for some of those important issues to be discussed.

Jerry Blackwell:

Here in a bigger, even bigger context, I was very conscious and aware that politically, we have a deeply polarized country along racial lines and if we allowed the trial to become a referendum on any of these various political camps’ views, blue lives matters, black lives matters and with a standard like reasonable doubt, we’re toast. Because if the jurors, any of them, get fixed in their mind that this case is a referendum on some deeply held political point of view that they have, then they won’t get off of that and you only need one to lose.

Jerry Blackwell:

So we had to really steer the case away from the shoals of these deeply held political views that jurors might have so that it can be tried, just on the basis of the facts as relate to Mr. Chauvin and not fall into these ditches of political perspectives, which I thought was fraught with peril for the prosecution if we’d allowed that to happen.

Preet Bharara:

Right, although endlessly fascinating, because what you have on the videotape is a white man’s knee in the back of the neck of a black man, killing him slowly over nine minutes and 29 seconds. You came on to the case, in part, because of your feelings in part about racial justice. This case was about that to a large degree, but to get some form of justice and a first step towards ultimate racial justice, you have to stay away from that. Do you find that ironic at all?

Jerry Blackwell:

Well, in a way Preet, but on the other hand, it wasn’t just Mr. Chauvin in the minds of the public that was on trial, it was the criminal justice system on trial. The public was on the edge of the chair. We can see what Mr. Chauvin did, but where will the accountability come from in the criminal justice system? That is where I think the public was looking having sat through here in Minnesota Philando Castile, Jamar Clark, fresh in the mind, still Rodney King, where seeing is not even necessarily believing, depending on who’s on the jury. So to me, the jury was out on whether this criminal justice system would actually do justice in this instance and that’s really where I think the public was focused.

Preet Bharara:

You both also made it a point and Steve, you especially, in your closing argument, to say what the case was not about. I understand this was highly strategic as well. You said and I’m quoting, “This is not an anti police prosecution. It’s a pro police prosecution. Make no mistake, this is not a prosecution of the police.” How important was that theme and that point, do you think, to the trial?

Steve Schleicher:

I think it was essential. You think about this, Preet, what is the standard that we use to judge a police officer’s conduct? What would a reasonable police officer do under similar circumstances? If this is a trial against the police generally, then that means none of them are reasonable and all of them then would have engaged in this similar conduct and we lose. If that is the standard, what would a reasonable police officer, not a reasonable bystander, not a reasonable member of the public, but a reasonable police officer do then we have to embrace reasonable police officers and we had a number of reasonable police officers come forward and testify at the trial, including our chief of police.

Chief of Police Arradondo:

Once there was no longer any resistance and clearly, when Mr. Floyd was no longer responsive, and even motionless, to continue to apply that level of force to a person, proned out, handcuffed behind their back, that in no way shape or form is anything that is by policy, is not part of our training and it is certainly not part of our ethics or our values.

Preet Bharara:

Did you have that many officers testified for that reason, or did you actually need all those officers to testify to everything that they testified to?

Steve Schleicher:

We needed every single one of those officers to testify to what they testified to. Same with the number of bystanders, same with everything. Because, all you have to do is look at the win loss record in terms of the prosecution of police to understand that there’s no such thing as a slam dunk case and under resource, the case is at your peril. Don’t take anything for granted. Don’t take any person for granted. Don’t take any juror for granted. None of it.

Preet Bharara:

We got this criticism sometimes in SDNY and I don’t know Jerry or Steve, if you’ve ever heard this. There’s some judges who will say stop over trying your case and I never really understood that, but I guess what a judge means is too much already. You have an overabundance of proof. Have you heard that, and did you have any worry that people thought that’s what was going on here?

Jerry Blackwell:

Of course. We heard words tantamount to that, that you got enough. How many experts do you need? That sort of thing, but given how hard it is to convict a police officer, I liken it to leaping over a chasm. How fast do you need to run? Well, as fast as you can and hard as you can. You don’t want to in your moderation miss the mark. So how do you calculate, modulate how much is enough?

Jerry Blackwell:

We just knew how important it was to have police officers speak to proper policing for jurors, and from as many different angles as were relevant, whether it is from the police training point of view, from the first day training they received. Any number of different perspectives on policing that we thought were implicated by the facts and that jurors needed to know about from the police about the police.

Steve Schleicher:

That’s right, and in terms of criticism, I guess I’ve always been willing to accept criticism. If the worst thing you can say about me, or our team is that we put too much into it, that’s great criticism. I love that criticism. You can say it all day long. If what we did, however, was to take shortcuts, to not just leave it all out on the field, to use a sports analogy, that’s criticism that would hurt, that would cut because we needed people to understand, people in this community to understand that we were fighting for justice in this case. That we were going to fight and we were going to fight hard and we were going to fight for every single ounce of evidence that we could put in.

Preet Bharara:

We’ll be right back to my interview with Jerry Blackwell and Steve Schleicher after this. So one of the things is interesting to me, and I wrote about it in an essay a couple of weeks ago. You didn’t talk about race for the reasons that we discussed and it’s not necessary to prove motive in a case like this, except as I was learned, and as I also tried to teach, jurors have some … They want to know what the theory of why the guy did the thing he did and unless I missed it, you didn’t really address it until much later in the case in summation and in the summation you said about Mr. Chauvin-

Steve Schleicher:

They were pointing cameras at him, recording him, telling him what to do, challenging his authority. His ego, his pride, not the kind of pride that makes you do better, be better. The kind of ego based pride. The defendant was not going to be told what to do. The defendant, he chose pride over policing.

Preet Bharara:

Why was it necessary to make that point and why wait so long to make that point?

Steve Schleicher:

As you said, jurors want to know why somebody did something. They want an explanation and I believe that based on the evidence that we introduced, that was a reasonable inference. If you just looked at the look on his face, not only in what’s been referred to as exhibit 17 over and over in the still photo, but if you watch the bystander video and the way he was interacting with the crowd and how they were crying out to him over and over, “Get up off him, he’s human. You’re hurting him, you’re killing him.”

Steve Schleicher:

For him not to respond to that, to not attend to the person who is right beneath him, but instead, they stare these people down. It seemed to me to be fairly apparent from what we introduced. Now, in terms of introducing that in an opening statement, for example, that’d be argumentative.

Steve Schleicher:

That would rightfully draw an objection. You really can’t make that what would be an argument and in terms of putting-

Preet Bharara:

You can elicit it from witnesses either, probably.

Jerry Blackwell:

That’s right.

Steve Schleicher:

Right. You can’t. It was something that needed to be said, but that was a matter of closing argument.

Jerry Blackwell:

And taken mostly just circumstantially from both his body language and what could be seen. We did have a ruling also from the court that limited the evidence that could be admitted that characterized state of mind for anyone. So that was the other thing to navigate, but we did understand that the jurors were looking for this extra piece to connect the dots and it might not have been enough, although certainly true that there are empowered people, at least those who feel they’re empowered, who will sometimes mistreat others just because they can and there’s nothing you all can do about it.

Jerry Blackwell:

I do what I want, as long as I want to whom I want, and that’s what I’m doing. That’s true too, but it was easy to talk about in terms of pride and ego as an explanation for the jurors.

Preet Bharara:

Here’s something else I found really interesting and then also even more interesting when I realized from the things that you two have said in the last couple of weeks, that Attorney General Keith Ellison played a substantial role in the trial strategy, and that is witness order. I was surprised that you began with the bystanders until I saw the testimony unfold. I guess my question is, if you can answer, was it always the plan to start with these bystanders or during the course of preparation and preparing these witnesses, did you come to realize just how compelling they were?

Preet Bharara:

Because often in a case like this, you might begin with a law enforcement witness who’s unlikely to go awry, particularly since you had so many law enforcement witnesses, including the chief who were able to testify. I’m just, as a former trial lawyer, maybe future again, what the thinking was there?

Steve Schleicher:

We discussed it a lot. We talked a lot about witness order and how best to present us. It really came back to the bystander video. What is it that touched everyone? What is it that really touched people’s hearts and shocked the conscience? It was that bystander video that was shot that was seen around the world.

Jerry Blackwell:

It was really, it was a function though, of where do we start our story? Do we start it in the 9:29? Do we start it chronologically at the point he arrives at Cub Foods and we decided that the main thing for this case is what’s happening in the 9:29. So let’s start with the main thing and keep focused on the main thing and the best way to be able to characterize that 9:29, apart from the video we have would be the eyewitness testimony about what was happening there and the efforts to intervene.

Jerry Blackwell:

They’ll start it with the idea that we’ll start our story with what’s happening in the subdual and the restraint on the ground and the bystanders were part of that. Now at the same time it would be no surprise. I don’t think I’m saying anything out of school that we would expect that a defense of the case would be focused on the sensitivities that might apply to officers on the scene, to people like Mr. Chauvin and we’ll basically talk about the bystanders more or less as objects and even Mr. Floyd.

Jerry Blackwell:

So we knew that there would be a need to humanize all of them, to humanize these humans, and maybe one of the sub themes, at least sub thoughts in the case was being able to just reveal and give to the jurors, the fundamental humanity of all the persons who were there. The premise was that the humanity that unites all of us will be greater than any of these different ideas that divide us. The unruly mob, crazed on drugs, hostile and angry. All of those things are cut through once you see the anguish and fielding, which said the bystanders who were just trying to save a life.

Witness Charles McMillian: 

[Crying] I just feel helpless. I don’t have a mother either. I understand him.

Steve Schleicher:

Preet, when you’re starting out with a law enforcement witness, that’s a whole language selection that’s going to be imprinted upon the jurors that’ll last throughout the trials. So for example, if an officer is discussing this event, they’re going to exit the vehicle. They’re going to approach the subject. So it’ll either be a subject or a suspect, it’s not a person. So it is.

Steve Schleicher:

It’s important to come back, as Jerry said to the humanity of it, to have people say, “We saw a man on the ground being pinned down by others who was hurting and crying out in pain.” That’s the language that we need to use and then the rest of it can be in the context of that initial reaction.

Preet Bharara:

You talked about the video and there was a lot of debate in legal circles I had some of this on the podcast too, about how often would you show the video. I know you to also, in thinking about the strategy here, worried with the team about the jury becoming desensitized and something I thought was really remarkable about the video and how you folks used it. That is obviously the video as a whole. It was played at the start and it’s jarring and shocking, and most people hadn’t seen it in its entirety and if they had, it had been close to a year since they’d seen it on cable television.

Preet Bharara:

So people get an immediate impression of a man having his life snuffed out by officer Chauvin in the video, but then there were little things in the video that you pointed out that maybe were lost. What I thought was fascinating in hearing you talk about the case in a different forum, and I wonder if you could elaborate is one of the reasons you thought it was okay to play the video more than a few times, was that you individually yourselves kept finding new things that supported the understanding that this was a deliberate and at least indifferent act on the part of Chauvin.

Steve Schleicher:

You hear George Floyd saying to Chauvin, “My stomach hurts, my neck hurts, everything hurts,” and Chauvin not only acknowledging that he hears him, but just kind of dismissively mocking him. Those are some things that you miss, not only when you see the video once, but recall they’re numerous videos here. So we have the bystander video, the microphones are closest to the bystanders.

Steve Schleicher:

So you can hear what they’re saying and discussing but we caught, on the video you’re referring to with the body-worn cameras of the officers. So you recall that one of the themes of the defense was that the crowd was so distracting that these officers couldn’t do their job, but yet you heard them speaking in normal tones, leisurely picking rocks out of the tire tread and responding to George Floyd when he was expressing that he was hurting.

Steve Schleicher:

So there was a lot in the video, but as to the issue of desensitizing based on playing it, I guess for myself, having watched all of these videos hundreds and hundreds and hundreds of times, the humanity of it never leaves you. It’s something that you cannot become desensitized to. You can become desensitized to a gory scene in a movie. You can become desensitized to that, maybe even a photograph perhaps, but watching a man die slowly, I don’t know how you can become desensitized to it quite frankly.

Steve Schleicher:

None of us on the team did. One of the most difficult things in preparing the closing was figuring out how to say the words without becoming emotional. Inappropriately so.

Preet Bharara:

Can I ask a question that people might have? Why would that have been so bad?

Steve Schleicher:

I think that as a prosecutor, you owe it to the system to present a case based on the facts and based on the evidence and not some sort of improper plead to your own emotion. This isn’t about me. This is about what happened to this man. It certainly would not be appropriate, in my view, for me to become overly emotional, such that I were start to cry.

Preet Bharara:

Can I ask you a question just because it occurred to me and defense lawyers listening may not like this question. Is it appropriate for defense lawyers to cry in summation?

Steve Schleicher:

I don’t think so, but-

Preet Bharara:

You’ve seen it happen.

Steve Schleicher:

Sure. You certainly-

Preet Bharara:

There was a defense lawyer that was familiar to our office, cried every summation.

Jerry Blackwell:

I wouldn’t think, and I do know certain lawyers in the civil context who cry in every trial. They tell the same story in closing and they cry in it too, every time. I wouldn’t think that you are required to be something other than human, that you have the normal human emotions, but a planned, stage crying, that kind of emotion, I would be concerned. How do you know where it begins and ends, and you may lose it as the prosecutor or a defense lawyer.

Preet Bharara:

Going into the trial, was your greatest concern with respect to a plausible defense from the beginning and during the trial, always the causation and the confusion that might be brought by the medical arguments that the defense was going to be making about the cause of death, or was it something else?

Jerry Blackwell:

No, that certainly was to me hugely of concern. As you know, I focused primarily on the medical case and Steve primarily on use of force, but as the person focused on the medical, I felt at the end of the day, they won’t be able to point to any policy or training or anything that permitted Mr. Chauvin to do what he was doing. To the extent they have a bop gun that they were loading up it’s to make all their arguments around medical causation, which is where they really hoped to make hay out of everything, from his high blood pressure, his enlarged heart, the blood vessels, the paraganglioma. You name it. On the one hand, he was this human being and had superhuman strength of the power of John Henry.

Jerry Blackwell:

Then on the other hand, he was a ticking time bomb who was about to fall apart at any second and would argue either one of those, depending on what suited the moment. So that to me was a real concern. The video played obviously prominently in the medical causation case because it either ruled in certain things or ruled them out based on what you could see on the video that there are certain things.

Jerry Blackwell:

I talked a lot about, for example, the anoxic seizures that are a result of low oxygen in the brain, an involuntary reflex that you can see in the video that we can point to. We can point it out, which is not the sort of thing you would see if you didn’t know what an anoxic seizure is or where it manifest, but the direct answer to your question was, yes, we were concerned about the medical causation case. Whether it is his comorbidities that is in his own body and, or their focus on his history of drug addiction and drug use

Preet Bharara:

A huge issue in the case related to causation was what the standard is and there was a competing view as to what you had to prove to show that Mr. Chauvin was guilty of the crimes with which he was charged. Can you just recite again, what the judge was going to tell the jury they had to find with respect to causation?

Jerry Blackwell:

Actually, it shouldn’t have been a matter of competing views since it was in the jury instructions.

Preet Bharara:

I guess the defense had a different request for a jury instruction.

Jerry Blackwell:

That’s true, but the standard was that we had to prove that Mr. Chauvin’s conduct was a substantial factor.

Preet Bharara:

Right, not the exclusive factor, but a substantial factor.

Jerry Blackwell:

A substantial factor. Not even necessarily the greatest one. There can be any number of substantial facts.

Preet Bharara:

So this is a question I’ve been dying to ask you guys, and I never knew if I would ever have the opportunity, and this may be a geeky, nerdy, lawyer, tactical question, but there came a moment and I’m sitting in the basement of my home, where I record this podcast and I also watched the trial and the defense counsel completely and totally misstated the law with respect to causation. I looked up at the screen and I was expecting one of you guys to jump up and object.

Preet Bharara:

Then I had a debate with a few of my former colleagues about the propriety of objecting during summations, and can it ever be done and is it better to deal with it on rebuttal? So I’m dying to know how you thought that cause you did obviously robustly object later, and I think you may have even asked for a curative instruction. What was the thinking in your mind when the defense lawyer said that thing that completely misstated what the judge had said earlier in terms of the law to the jury?

Jerry Blackwell:

It was, at least in my mind, and that would have been my call at the time was what would be the best way, what would be the best approach for getting this clarified and corrected before the jury? If I object here in the middle of his closing, I might be more apt to get a summary overruled from the judge. It may have been fueled by the fact that I’m objecting during the closing for all I know. When there’s a break, when there’s a chance to have a thoughtful exchange with the court, we’re much more likely to get an instruction that gets the information in front of a jury and get it corrected.

Jerry Blackwell:

So I opted for waiting until we got to the break to get in front of the judge to raise the issue and to see if the judge would give, would cure it and given what we were told by the court, I was frankly pleased we hadn’t objected because he just basically said, “Well, your turn is next.” So you can get up and explain this to the jury. So I didn’t know at the time how the court would react to it.

Jerry Blackwell:

I felt that a better shot was to try to get it corrected when we had a chance to have a thoughtful exchange with the court that wasn’t like that happened right in the middle of the closing and ultimately when he said you can address it in your rebuttal, then I thought, well, just fine.

Steve Schleicher:

Preet also, as you know, with a jury, they really do depend on us. They expect us to be straight with them and your credibility with them, it’s so important. If you have a situation where your opposing counsel says something that just is incorrect statement of law, it’s different than what the judge said, I think they do that at their peril. I think that the jurors then see, well, gosh, this attorney said this, but that’s not what the judge said and they do tend to defer to the judge.

Steve Schleicher:

So I certainly had a visceral reaction to it as well, but I did think to myself as with Jerry is, well, that’s not going to be something that they’re going to be glad they said.

Preet Bharara:

As lawyers in the process and obviously a defense lawyer has to prove his case and has to represent his client zealously, but do you have a theory as to why he misstated the law? I didn’t see any sort of mistake there. I don’t think that was carelessness.

Jerry Blackwell:

I’ve been in front of judges who would go absolutely crazy if some lawyer stood up and misstated the law.

Preet Bharara:

Judge Mukasey, I’ve said this before, who later became the attorney general. If you tried the case in front of him, if that defense lawyer had said that thing in front of Judge Mukasey, you would have heard him say sustained, even if there had been no objection.

Jerry Blackwell:

Right. The floor would open up and you would fall in a hole if you do that. I wasn’t sure exactly how this would play out there in the closing and I thought if we had a shot at getting it corrected, it would be when we had a chance to have a real thoughtful discussion with the court. Then on the other hand, well, if he says, “I’ll leave it up to your argument,” then, well, that’s not all bad either to start off with a rebuttal that what you heard, and tell it to you straight with an argument that starts with, look at the totality of the circumstances and look at it honestly, truthfully, and it begins with misstating the standard. That’s a non-starter,

Preet Bharara:

What was the feeling in the courtroom? The mood, the tone, the tenor? Were there actually light moments? Was it always very heavy and then how did that change if at all, when you found out there was a verdict?

Steve Schleicher:

So there were some light moments. It was generally pretty somber all the time. We had a job to do very serious, but it was certainly, there was … We were collegial, polite to each other. I can’t think of any specific light moment, but it wasn’t as contentious as one might imagine. Both parties were very focused on doing their job. On the prosecution side, we, of course, sole burden of proof, coordinating a lot of witnesses and evidence. We were just very, very focused.

Steve Schleicher:

I made the remark that, there could have been hailing, Pentecostal fire outside of the courtroom, and I wouldn’t have noticed at all, because we were just so locked in. A personality trait that’s been pointed out to me, maybe isn’t as charming as one might imagine when you get into trial mode.

Jerry Blackwell:

Judge Cahill was very much in command of his courtroom. There was a high degree of professionalism between the lawyers, the parties and the jurors were very attendant. They took lots of notes. They paid attention. Rarely saw anybody dozing off on the jury. I wouldn’t describe there being very many moments of levity during the trial. It’s hard when every day you’re watching a person die every day.

Preet Bharara:

There were a lot of tears on occasion from the witnesses for a good reason. So then you hear there’s a verdict, fairly quickly during the deliberations that had taken place up at that time did not produce any questions from the jury. I got texts from members of the press and others about what I thought that meant, and every instinct I had suggested given the way that you put the case in the strength of the case, the speed of the verdict indicated to me that it was a guilty verdict, except, and I’ve heard people say this, you couldn’t expect or say that because in other cases like this involving these dynamics, that has often not been the result. How did you think about it in that longest hour you had to wait before the verdict?

Jerry Blackwell:

I think you just said it. You know what I mean? It-

Preet Bharara:

As a trial lawyer, you knew, but as a person in America, you were not sure.

Jerry Blackwell:

That’s absolutely right. There are a few disappointments greater than the anticipation of a positive verdict and you’re sure of it and the jury comes in and you get the greatest gut punch of your life when they have decided something different. I didn’t know how they could. They had been out so little time in my view that they didn’t really have time to argue about a great deal. So this all seemed to look good for the prosecution, but these cases are tough cases. So that was an agonizing, particularly the last 30 minutes of it, sitting there.

Steve Schleicher:

The last 30 minutes was … That was terrible. I remember coming to the courthouse and I was thinking the same thing. I was just logically thinking to myself, they didn’t have any questions. They didn’t ask to review any evidence. They haven’t been out that long. So that suggested to me that this was going to be a verdict that we were happy with, but when then when you get to the last portion of it, of course, what you do is you spend every nanosecond, second guessing every word you uttered over the last month-

Preet Bharara:

Is that your drill? Your drill is to the trial in your head at that moment.

Steve Schleicher:

It’s the worst part, as you know.

Preet Bharara:

Jerry, do you have a better drill than that?

Jerry Blackwell:

I do have a better drill. I sit at the table and I answer random emails, which is what I was doing.

Preet Bharara:

How are you capable of doing … That’s not a better drill. That’s ridiculous. How are you able to do that?

Jerry Blackwell:

Meditation helps me to focus. So I thought just to sit here, looking at the wall, staring at the people, feeling all the straight voltage. Well, here’s at least something constructive I can do. I can answer these emails while I’m sitting here.

Preet Bharara:

Do you brace yourself? Because I remember hearing that in my first trial ever as a younger person, to brace yourself and to have no emotional response at all, no matter what the verdict is. Do you think about that and do you steel yourself to whatever the verdict is, even if it’s one that you want and would be gratified to get?

Steve Schleicher:

Absolutely. This is somebody’s life. This isn’t a victory in that sense. It’s an acknowledgement of the truth of what happened, but it’s not a cause for celebration. So you just think of the weight of it. You’re aware of the fact that the family of George Floyd is watching. Philonise was sitting behind us and you feel that, and you’re thinking to yourself, is this going to be a situation where we have to compose ourselves and come back and comfort them? All of that runs through your head.

Jerry Blackwell:

For me, it was a little bit different because when all is said and done, I got involved in this matter as for me, a spiritual cause. My duty was to give it my best and my utmost but to kind of work hard at not being attached to the results in the same way that the battle, the struggle, the fact that the nation has to itself wrestle with this. The world is wrestling with this is its own form of progress in a way.

Jerry Blackwell:

While don’t get me wrong, we certainly did want the guilty verdicts, but I really had kind of fixed in my mind that my duty really was to serve and to give it my absolute best and I felt I hadn’t done that. If it came back a different way, then I still would think that there has been a benefit from this trial. Just to have wrestled with it this way and it moved us in some ways, further down the track towards something that looks like a reconciliation, even though it wasn’t just yet.

Jerry Blackwell:

It’s mounting the pressure for we still have to deal with these issues, and it’s even out in clear case that we have to deal with these issues if it were an adverse verdict. So I was prepared that as I say in meditation, do your best and give it to God and that’s how I felt about it.

Preet Bharara:

There’s a legal question that I’ve gotten from a number of listeners, and that is, “How can it be the case that the jury could come back and convict on all three counts, murder two, murder three, and manslaughter when the mental states required to prove each of those is different?” In other words, people are confused about how they could find guilt on all counts when it seems like you’re talking about different kinds of crimes, not just lesser included, but different mental states. Does that make sense as a question and does one of you want to answer it?

Steve Schleicher:

Well, what I can say is that I think that these … When you look at the elements of what is required for each of the different charges, you see very different things. The murder two charge, it’s a felony murder, it’s unintentional felony murder. I’ve described this before as kind of a Rube Goldberg. Those machines where you roll the ball and it hits a pin and knocks it.

Steve Schleicher:

So it’s kind of like that. What we had to prove was that there was a felony level assault, an intentional felony level assault and during the commission of that assault, that the defendant caused George Floyd’s death. So the required mental state there was intentional conduct that was an assault. It wasn’t an accident that he found himself kneeling on George Floyd’s neck.

Steve Schleicher:

It was that he did some volitional act, which in fact was a felony level assault that caused the death. That’s not at odds with the commission of an eminently dangerous act, the placing yourself on the neck and back of George Floyd for that extended period of time, given what law enforcement knows and has known for at least 30 years about the dangers of positional asphyxia.

Steve Schleicher:

A trained, known risk to do that for that extended period of time certainly was an eminently dangerous act. So the mental state there is that the defendant knew of this risk and took it, not withstanding the potential consequences. Then with our second degree manslaughter, it’s kind of a variation of the same thing.

Steve Schleicher:

Manslaughter is a negligence based offense. So with that is not only his actions but his willful inactions, his failures to act. His failure to provide medical attention, for example, despite the training, the knowledge and the affirmative obligation to do so. So these charges were similar in causation and whatnot and you saw that in the closing, how many of these elements merged into each other, but-

Jerry Blackwell:

But they weren’t mutually exclusive.

Steve Schleicher:

They were not exclusive and to prove one is not to disprove the other, and that’s why the convictions of all three counts.

Preet Bharara:

Did either of you, or both of you spend time with George Floyd;s family after the verdict?

Jerry Blackwell:

Oh, absolutely. We-

Preet Bharara:

Can you describe what their reaction was?

Jerry Blackwell:

It was tearful. It was jubilant. You could feel this, what felt like a giant exhalation from the family, given the pressure that they were under, the tension they felt about whether there would be any justice for their brother, whether there will be some indication that at least his life mattered. So to have been there in the room with them with the hugs and the tears, starting in the courtroom, actually with Philonise. It was a powerful moment with the family, with their sense that there had at least been justice or at least accountability,

Steve Schleicher:

I think just speaking of the family, when I say that the family was remarkable, I want to put that in a little bit of context. In over two decades of prosecuting experience and certainly having to spend a lot of time, unfortunately, with people who’ve lost loved ones to violence, a lot of people in that position just, they don’t have anything to give because they’ve lost so much and they are themselves so lost and it’s difficult.

Steve Schleicher:

The Floyd family was so giving of themselves. Just sending words of encouragement, telling us that we were doing a good job all the time and just to be able to do that in a situation where they lost George Floyd, they lost their loved one, but they always made time for us.

Steve Schleicher:

They always took the time to specifically address each of us. If they thought that we had a good day in court, they would say that. As an advocate, you find that so energizing. It just gives you oxygen. It gives you something to fight for. I just thought that was remarkable that they were so giving of themselves in that way.

Preet Bharara:

What could be tougher than that? Absolutely Were you in a position to see the defendant Derek Chauvin’s reaction? Because sometimes, depending on how the court is configured, the prosecutors can not.

Jerry Blackwell:

No, we could. He was-

Preet Bharara:

What’s your observation about that?

Jerry Blackwell:

His demeanor didn’t change one bit. It was very stoic. No visible emotions of any kind. Even when he was asked to turn around for them to put the handcuffs on, there wasn’t any emoting of any kind that I saw.

Preet Bharara:

Do you think he was expecting that you would move to remand him?

Jerry Blackwell:

Yes, I would think so. I think-

Preet Bharara:

I think his lawyers would have told him that. I’m not sure the public appreciated that.

Jerry Blackwell:

I think he would know that that’s pretty much the drill.

Preet Bharara:

Now Steve, I know you’ve been asked this question before about what would have happened had Derek Chauvin testified, and I think you were on deck to do the cross. I don’t think he would answer the question as to what the themes or thrust of your cross would be, but again, let me ask you this question. How long do you think that cross examination would have been after he testified on direct?

Steve Schleicher:

That’s hard to say. You prepare yourself for every possible contingency, but the length of a cross examination is something that just sort of happens. There’s not a prescribed time for it to come out of the oven, but you get a sense of when it’s done. So I really don’t know. It would have taken as long as it would have taken to go through every moment of that restraint, of the 9:29. I think that you would expect a cross examination of this to be about what the case was about.

Steve Schleicher:

That was the restraint on the ground from the start to the finish and asking for justification for all of it. I don’t know. I don’t know how long it would have taken. It’s something that you feel when you’re in the moment.

Preet Bharara:

What’s the proper sentence for Derek Chauvin?

Jerry Blackwell:

Well, it’s what Judge Cahill decides is fair and I think [inaudible 01:12:41]-

Preet Bharara:

That’s-

Steve Schleicher:

I’m laughing because you know how we can answer that question.

Preet Bharara:

I know, but I had to ask the question. So Jerry, one thing that people commented on with respect to not just you and Steve, but everyone on the government side, and we talked about this during this interview. The government is supposed to be the sober, non-emotional, non-fancy provider of information and solicitor of facts above the fray. I think all of that is true and very rarely should you, and in this case, didn’t engage in flourish.

Preet Bharara:

That might not be the right word for the question I’m about to ask, but boy, at the end of your rebuttal summation, you had a zinger. Again, that’s not the right word either. It was a very powerful, short statement, but it stood apart from the way that all of you talked about the case and the facts and the evidence before that point, I think. And here’s what you said.

Jerry Blackwell:

You were told, for example, that Mr. Floyd died because his heart was too big. You heard that testimony, and now having seen all the evidence, having heard all the evidence, you know the truth and the truth of the matter is that the reason George Floyd is dead is because Mrs. Chauvin’s heart was too small.

Preet Bharara:

Boy, that’s a devastating way to end a rebuttal summation. Why’d you say that and why was it important to say it in that kind of way?

Jerry Blackwell:

I wanted to bring it back for jurors to what they felt in their heart of hearts about what is fundamentally wrong with what happened here. I tend to believe that people make their decisions first and foremost, on what I call an emotional level based on their own sense of what’s right and wrong.

Preet Bharara:

But you didn’t do that along the way.

Jerry Blackwell:

That’s right.

Preet Bharara:

What’s fascinating about it to me and the brilliance of it, to me at least is, you didn’t overdo it. You did it there and you did it at the end. It was almost like the way you would end, and I mean this is a compliment, because most movie summation writing, separate from getting the law wrong is better than most real life summation writing, but it’s kind of the way that the scene should have ended if you had been writing this for the screen about an incident like this, that has so torn apart the country, that’s the line you would have written.

Jerry Blackwell:

I wanted the jurors to go away with, their final thought being one that says, “That’s absolutely right. That’s right.” That if he had the heart that was the size of a nine year old girl, George Floyd would still be alive and it just seemed to capture it all. I was very cognizant of the fact that not only are we prosecutors, but we’re prosecutors in Minnesota and Minnesotans are a wonderful people. So let me just say that, but they’re not a wonderfully emotive people.

Jerry Blackwell:

As one kind of older friend of mine who’s in her 90s, German-Lutheran Minnesotan, she made the comment that, “Here, we don’t smile for no reason because showing teeth as a sign of aggression.” So if you’re in Minnesota, if you have too much of the emotive stuff, if it’s too early on in the case, you risk turning off some Minnesota jurors in doing that.

Jerry Blackwell:

I did want to get to the heart again to, as sort of the punchline, if you distilled and boiled everything down to the fundamental narrative, what happened here was simply that an officer did not care enough. When all is said and done, he had a duty to care. He was trained in how to provide care and he needed to put the care back into in your custody is in your care. That to me was the bottom line that plays out through all the counts and the charges and the evidence and the experts is fundamentally, he just didn’t care.

Steve Schleicher:

The brilliance of it, Preet was that it was conduct and causation in a single statement. It was beautiful and lyrical and as an advocate, it was something that I admired and enjoyed watching and hearing very, very much.

Preet Bharara:

When did you come up with that statement?

Jerry Blackwell:

Well, I’m just thinking about when it was. It wasn’t on the spot, I’ll tell you that, but-

Preet Bharara:

Did it come to you the night before as a revelation?

Jerry Blackwell:

It came a few days before as sort of a revelation when I was thinking about all the arguments about his comorbidities, the size of his heart and so on. I thought, well, that’s a lot of nerve. Focused on the size of his heart. I said, “Ah, I get it.”

Preet Bharara:

That’s a lot of nerve focusing on the size of his heart. Exactly right. Well, you’ve been very generous with your time. Thank you for your service. I understand that you may be listeners of the podcast. So I’m honored by that as well.

Steve Schleicher:

We are. Yes, and thank you-

Preet Bharara:

That’s why the case went so well.

Steve Schleicher:

We learned it all from you, from watching your podcast-

Preet Bharara:

It’s because of me. It’s because of me.

Jerry Blackwell:

I was wondering when we were going to get to that.

Steve Schleicher:

So modest of you to wait and to bring it up till now.

Preet Bharara:

I too have served the country in an indirect way. Were you both … We put the request out. I wanted to talk to you folks. I was thrilled when we got the quick reply that you would come on. I could spend three hours with you talking about the case, the impact of the case and I guess, let me just end with that. Although it goes beyond the task you had as lawyers in this case, but you’re also Americans who care about the issue as we started with. Final question, what do you think this means and where do we go from here in the country on the issues that have been raised by the conduct of Mr. Chauvin?

Steve Schleicher:

For me, Preet, it’s a recognition of the need for human empathy and compassion. I don’t know what it means in terms of the larger issues going forward with policing and police reform and whatnot. I’m not a policymaker, and I guess I leave those decisions to policymakers. I do think that just as a country, as a people, we need to recognize each other’s humanity more and to have empathy for each other more and not just simply decide … Whoever is saying what’s being said to decide what side you’re on, ignore all evidence to the contrary and only listen to that, that supports your preconceived position.

Steve Schleicher:

For me, it means a lot of that and just even seeing the way people would treat folks who had testified in the trial. You see different tweets and things that people say. Disparaging people, disparaging certain witnesses, disparaging anyone and you’re just kind of amazed by it, thinking to yourself, “Would these people say this to each other’s face?

Steve Schleicher:

Is it okay to be saying things like this online?” Just other examples of disregarding each other’s humanity and I hope that this is something that people can recognize and see that what are the perils? What happens when we do that, when the person who we’re there to protect and serve is not a person, but a super person or a superhuman. Where does that end? What does that cause us to do?

Jerry Blackwell:

Preet, I agree with Steve.

Steve Schleicher:

Jerry and I didn’t know each other coming into this. We began to see each other as lawyers who love to try cases, who fight hard and who liked to win cases. I come away from this experience with a friend, with a new friend and that’s something that I’ve gained. I say in public service, if you do public service, you get more than you give and I certainly have received more than I’ve given in having the privilege of trying this case.

Jerry Blackwell:

Likewise, and if nothing else, I would like to encourage other private practitioners on the civil side to think about ways that you too can step into similar shoes to be of use in similar cases. You don’t have to know every aspect of criminal law, but there are things that we learn in complex civil that are useful in the case of the sort.

Preet Bharara:

Great message to end on. Jerry Blackwell and Steve Schleicher, thank you for your service. Thank you for doing what you do. Thank you for being on the show.

Jerry Blackwell:

Preet, we really, really enjoyed it. So very much so.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Jerry Blackwell, and Steve Schleicher. If you like what we do, rate and review the show on Apple podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @PreetBharara with the hashtag, #askPreet, or you can call and leave me a message at 669-247-7338. Or you can send an email to [email protected]

Stay Tuned is presented by CAFE studios and the Vox Media Podcast Network. Your host is Preet Bharara. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Jennifer Korn, Chris Boylan and Sean Walsh. Our music is by Andrew Dost. I’m Preet Bharara. Stay tuned.