• Transcript
  • Show Notes

In this episode of Third Degree, Elie Honig discusses the long first week in the trial of Derek Chauvin, from the effectiveness of the witnesses to the strength of the prosecution’s arguments. He also looks ahead to the focus of week two: the defense. 

Join Elie every Monday and Wednesday on Third Degree for a discussion of the urgent legal news making the headlines. 

Third Degree takes on a different flavor on Fridays, when Elie speaks with a rotating slate of America’s most impressive law school students exclusively for members of CAFE Insider. Become a member at half the annual price with special code DEGREE at cafe.com/insider.

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Third Degree is produced by CAFE Studios. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Technical Director: David Tatasciore; Audio and Music Producer: Nat Weiner; Editorial Producer: Noa Azulai.

REFERENCES AND SUPPLEMENTAL MATERIALS:

  • Nicholas Bogel-Burroughs, “The first witness is a 911 dispatcher who ‘called the police on the police’ as George Floyd was arrested.” New York Times, 3/29/21
  • Paulina Villegas, “Witness who confronted Chauvin sobs while watching Floyd video: ‘I feel helpless’,” Washington Post, 3/31/21
  • Bill Chappell, “Senior Police Officer Says Chauvin’s Neck Restraint Of Floyd Was ‘Uncalled For’,” NPR, 4/2/21
  • Nicholas Bogel-Burroughs, “George Floyd’s girlfriend described their relationship: A shared struggle with addiction, their first kiss, a ‘dad selfie.’” New York Times, 4/1/21

 

Published April 5, 2021

Elie Honig:

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

Welcome everybody to the concept of trial time. They talk about dog ears. I think it’s one dog year equals seven human years or something like that. Well, trial time is even more distorted than that. When you’re on trial as a lawyer, I will tell you from personal experience, hours seem like days, days seem like weeks, weeks seem like months. When I was trying cases at the end of every trial day, I would feel this overwhelming sense of just bone tired exhaustion. And I mean physical exhaustion, even though I’d spent basically the whole day sitting or maybe standing in place at a podium. Why is this? Why does this happen? I sort of figured out a couple of reasons. First of all, there’s an adrenaline factor. When you’re trying a case, you have this rush of adrenaline and then you have the crash. There’s a focus and concentration issue.

You can’t drift off when you’re on trial. You can’t let your attention wander. You could miss something important. And then finally, there’s an emotional element to it. There’s an intensity sort of how you might feel if you’re a very serious sports fan after your team plays a close, maybe overtime football game, that feeling of emotional release. What we’re now seeing the whole country go through this phenomenon essentially together as we all witnessed the Derek Chauvin trial in Minneapolis. It’s hard to believe, but this trial is now only one week old. Remember the very first witness that 911 dispatcher? That was one week ago today. That was last Monday. I think this is by and large, a good thing. It shows people are watching. It shows people care. It shows people are invested and understand the stakes. And I know it’s hard for some people to watch this.

I know it’s stressful. I know it’s causing some people to feel trauma themselves. I just want to tell you that’s normal, that’s natural. Trials are difficult things to witness. They’re difficult things to watch, especially when it involves the loss of a human life. So let’s take a collective breath now, as we round into week two of the trial and assess where things stand.

First of all, let’s look at the case so far. Big picture, the prosecution’s case is coming in smoothly so far. So far is a necessary qualifier because there’s much still ahead. And I’ll tell you that sometimes as a prosecutor in this position, you’ve just finished the first week of evidence. You feel good. You’re thinking, “Ha, our case is really coming in nice and smooth,” but you have to remind yourself as a prosecutor, “Hold on. This thing is far from over. The defense hasn’t even begun putting its case in yet. You got to keep focused.” And a strange thing about this case, the evidence about what happened on the ground outside of Cup Foods on May 25th, it’s virtually uncontested. And that’s largely because we have so much video. We have surveillance videos from the stores in the area. We have cell phone videos from bystanders, and of course we have police body camera video. I’ve actually never seen a trial anything like this with so much evidence of exactly what happened, second by second, movement by movement.

There’s no dispute, for example, over how long Derek Chauvin was on top of George Floyd. This has all gone as well as the prosecution reasonably could have hoped, maybe better. The jury has seen in brutal detail just what happened out on that street. And there’s an emotional aspect to this.

The witnesses have been compelling, even moving to watch these witnesses. Think about the young witnesses, the under 18 witnesses. We couldn’t see them, but it was remarkable to hear them testify. It was moving. Several people have broken down on the stand. Charles McMillan, the older gentleman with the white glasses I found to be really compelling when he broke down on the stand.

Oh my God.

I have to say this though. A lot of that testimony should never have been admitted in evidence. For example, when Charles McMillan started crying and he said, “It reminded me of losing my mother.” I mean, that is completely irrelevant to the case. It’s moving as a human being. It’s interesting and it’s relevant, but to a jury that kind of evidence has nothing to do with whether Derek Chauvin wrongly killed George Floyd or not. So I’m actually surprised the defense lawyer has let in a lot of this stuff, a lot of the emotion, a lot of the stuff that’s not directly relevant. He may just be making a tactical decision here. It’s not worth objecting to. I don’t want to look like I’m trying to obstruct things. I’m going to let it go and my defense is more of the technical variety, which brings us to the two biggest disputes in this case, the main defenses. These are going to get a lot trickier this week.

So the first big question that we’ll see argued this week is, was Derek Chauvin’s use of force reasonable and necessary, or was it excessive and criminal? Now the prosecution starts off with a big advantage here, simply because of that nine minutes and 29 seconds. Just intuitively, just common sense, just as a human being, it seems so hard to imagine that it could possibly be proper to kneel on a handcuffed man’s neck at all, nevermind for that long. And that’s more than just a common sense lay-person opinion.

We started to hear testimony about that last week. Sergeant Pleoger from the Minneapolis Police Department, Chauvin’s own former supervisor, told us that that was an inappropriate use of force. That is a strong piece of evidence for the prosecution. And then on Friday, Lieutenant Zimmerman drove that point home. And the things he was saying were really important to the case, but also in a sense, so obvious and so basic, he said, “Once a person’s handcuffed, the threat goes way, way down, obviously.” He said, “You have to be careful about positional asphyxia, where somebody’s laying on their chest. It’s hard to breathe, even normally, nevermind when you put pressure on them.” He said, “Medical intervention by a police officer is an obligation.” And he said, “Of course, a knee to the neck can kill a guy.” Ultimately Zimmerman said that what Chauvin did was, and I quote, “Totally unnecessary.”

Now the defense, of course, is not going to just take this. They are going to put up a fight. I’m really curious what this is going to be. I’m dubious that they’re going to be able to do it, but I’m also genuinely curious. How are they going to do this? Who is going to take the stand and say that this was somehow within training or within protocol? They may call their own witness. They may just do it by trying to poke holes in the prosecution’s witness.

They did score a few minor points on the cross examination of Zimmerman, getting him to admit that police training has evolved, that it is based on the totality of the circumstances, but they didn’t undermine the heart of his testimony. They seem to be going with, on the defense side, this idea of, well, if George Floyd was unconscious from an overdose and then he was revived, sometimes people in that situation get aggressive. First of all, it’s not clear at all this was an overdose. That is to be determined during this trial. Second of all, it just doesn’t measure up. The guy’s handcuffed. He’s laying face down on the streets. So let’s assume it was what the defense said. Let’s assume it was an overdose and then he was revived and he suddenly got really aggressive.

Think of how long it would even take him to get on his feet, even if he physically could. That’s pretty hard to do when you’re cuffed face down. I mean, the cops would have been standing there watching him struggle to even get on his feet for 10 minutes. So this idea that it was necessary to pin the knee to the neck for 9:29 is a serious uphill climb in my book.

Next, causation. Did Derek Chauvin’s actions cause George Floyd’s death. Again, the prosecution starts with the advantage. It’s a big advantage of common sense here. Did George Floyd just happen to die during that 9:29 or shortly after with no connection to the fact that his neck was being kneeled on? Again, that is hard to believe just on a basic level. But the prosecution has a little bit of a bumpy road here. They can get past it, but it’s not going to be as smooth as you would like. Remember, there are two different medical examiner reports in this case. The Hennepin County examiner, the official examiner concluded essentially that the cause of death was a heart attack brought about by Chauvin’s conduct. But the family of George Floyd hired an independent medical examiner who concluded that the cause of death was asphyxiation brought about by Chauvin’s conduct. It’s not ideal, but it’s manageable.

At least from the prosecution’s perspective, both agree that it was a homicide, meaning one human being causing the death of another. And second, that Chauvin was a substantial cause. They don’t have to show Chauvin was the only cause as long as he was a substantial cause. The defense is arguing the cause of death was essentially everything, but Derek Chauvin’s actions, a combination of George Floyd’s pre-existing medical conditions and the drugs and overdose. That one stretches credulity a bit. That’s my gut instinct here, but they’ve got something to work with. There’s no doubt that the forensics and the toxicology show the presence of fentanyl and methamphetamine in George Floyd’s blood at the time he died. The prosecution openly acknowledges that George Floyd had a fairly serious addiction problem. They called the witness, the girlfriend who testified all about that. And by the way, the prosecution made a tactical error there.

The prosecution was right and smart to front this idea of the drug use. You know it’s coming out in front of the jury. You know it’s not going to be a great fact for you. Better for the prosecutor to put it out there yourself, own it. Don’t let it come out for the first time on cross examination. However, somehow they inexplicably forgot or maybe they didn’t know to elicit the fact from the girlfriend that George Floyd had overdosed and gone to the hospital two months before. And when it came out on cross, it hit extra hard as a result. Again, I’m wondering, will we see a witness or maybe multiple witnesses who will opine or support this argument, that it was in fact an overdose and unrelated to Derek Chauvin? Again, it seems tough to believe that knee for 9:29 somehow had no bearing, but we will see the defense evidence and how it stacks up soon. That’s why we have a trial.

And finally, what are we looking ahead to this week? We don’t exactly know. When I was trying cases, the judges would make us prosecutors announce in advance who our witnesses would be, at least for the next day. Here that may be happening, but for what’s being called security purposes, none of that information’s getting out to the public. So we don’t know who’s going to take the stand until that person gets on the stand. Eventually it seems we will hear from the Chief of Police of the Minneapolis Police Department. That is going to be really interesting. I am guessing he will testify similar to the two police officers who’ve already testified that Chauvin’s conduct was inappropriate and excessive. That examination and cross-examination will be riveting. And eventually we will get into the scientific and medical testimony about the causation issue. So stay with me for this trial. This is a very big moment in our history and it really feels like a collective moment that we’re all experiencing together. As always send us your thoughts, your questions, your comments to [email protected]