• Transcript
  • Show Notes

In this episode of Third Degree, Elie Honig and NYU Law student Safeena Mecklai break down the early arguments from both the prosecution and defense in the trial of Derek Chauvin. 

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 bit of 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. 

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 Producers: Noa Azulai, Jake Kaplan, Sam Ozer-Staton.

REFERENCES AND SUPPLEMENTAL MATERIALS:

  • Derek Chauvin Trial Live Tracker, New York Times, 4/1/2021
  • Eric Levensohn, “George Floyd’s girlfriend describes what kind of person he was on fourth day of Derek Chauvin trial,” CNN, 4/1/2021
  • VIDEO: Opening statements in the trial of Derek Chauvin, Atlanta Journal-Constitution, 3/29/2021
  • Janelle Griffith, “Chauvin’s defense attempted to portray bystanders as angry mob that diverted officers’ attention,” NBC News, 3/29/2021

Published April 2nd, 2021

Elie Honig:

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

Welcome back, everybody, to another Friday episode, my favorite day of the week to record these because I have company, and this time for the third time. Welcome to NYU third year law student, Safeena Mecklai. Safeena, great to see you.

Safeena Mecklai:

Hi, it’s great to see you and it’s great to be back for the third time.

Elie Honig:

Congratulations. You are now in the three timers club. I guess we’ll start handing out robes at the fifth one like Saturday Night Live does or something like that.

Safeena Mecklai:

Perfect. That sounds great.

Elie Honig:

Well, we’ll work up some branded merchandise. This is a fascinating time in the law in this country and really, I think in our history because of the ongoing trial of former Minneapolis police officer, Derek Chauvin, for the charged murder of George Floyd. And I want to ask you, how are you and your classmates, your professors talking about this on campus? How big of a focus is this? How closely are you following this trial and why do you think that is?

Safeena Mecklai:

There is something that feels very unique about this trial and the student body right now. Compared to impeachment, for example, it seems like my classmates are much more focused on following the day-to-day of what’s going on in this trial. It’s come up a couple of times in classes with professors noting that we might be distracted or that this huge event is going on, but it feels like something that’s really captured folks’ attention and it’s something that people are talking about.

Safeena Mecklai:

And I think they’re talking about it on two planes. The first is while we might be very skeptical of the political process and impeachment, I think that folks are hopeful about legal processes and we came to law school hoping that the legal process, that trials could bring about justice. I think folks feel like there’s a lot at stake here, especially whether the legal system, the justice system can ever hold police officers to account, institutions to account, and I think many students were involved in protests this summer, have talked about policing. There’s a big debate on law school campuses about reform versus abolition. All of those steaks are foregrounding the trial for students right now.

I think that’s one plane that people are talking about this on. And the other is just, we’re getting to see a very public trial. And that’s what we all came to law school to think about and to do, so that’s also another conversation that’s happening related right now.

Elie Honig:

You made a really a fascinating point that I hadn’t thought about before, which is the different ways that the public views impeachment versus criminal trials. I think you’re absolutely right. There was a deep skepticism, even cynicism maybe, that we had, that I think a lot of people had towards the impeachment trial and people said many, many times … Remember, this is a political process, right? It’s not strictly a legal process. I mean, everybody said in advance both times, “There’s no way Donald Trump gets convicted because enough republican senators will hold the line,” which essentially happened. And I had to constantly remind myself and listeners during impeachment, “This is not a criminal trial.” So often I would be asked, “How could this happen? How could we have no live witnesses?” I kept saying, “Because it’s not a criminal trial.”

And the flip side of that is I think we do have collectively as a country a lot of faith in our trial process, our criminal trial process. There are problems with the criminal trial process, no doubt, that needed to be reformed, and even if you go a layer below that, there certainly are problems in policing and criminal justice as a whole, as we’re seeing on display to some extent in this trial. But I think we as a whole put a lot more stock and faith in the ability of our criminal justice system to do justice, so to speak, than our impeachment process, which we’ve seen as just this crassly political Ds versus Rs type of exercise.

Historically speaking, I’ve actually heard multiple people say, including at CNN, where I also work, the last two times that the country has been this riveted by a trial … Multiple people have said this to me and use these two examples … were Casey Anthony and OJ Simpson. And to me, it’s clear that this trial is way more important than either of them. I mean, Casey Anthony was just a tabloid trial. I mean, it was horrible. A baby was killed, but there was no broader social significance to it. The OJ trial, of course, brought up issues of race in a very tangible way. And I think that’s one of the reasons that trial was so widely watched, so important. Of course, you have the celebrity factor as well.

This trial, of course, is in large part or in some part at least about race, but it’s also about the state use of force, the state’s power here, the state’s involvement of exercise in what some people call institutional racism. And I think the question here is the way we police, the way the state exercises its power unevenly against black people versus white people. And I think that is front and center here. And for those reasons, I think it’s front and center and it’s getting a massive amount of tension and rightly so. I’m actually encouraged to see just how deep the public engagement has been with this trial so far.

Safeena Mecklai:

I totally agree.

Elie Honig:

What have your reactions been to what you’ve seen happening in the courtroom? I know you’ve not tried a real case, but from a student’s perspective, somebody who I know you’re interested in the qualities of advocacy, you do mock trial and that kind of thing, what have your initial takes been?

Safeena Mecklai:

Well, I think it’s fascinating to see a full trial that we know is going to last for weeks capture public attention in the way that it has. And I think you’re totally right that that’s because we have faith in the legal process and that’s butting up against our skepticism when the thing being tried relates to police and police violence against black people. I think that’s kind of the stakes surrounding what I’m seeing.

And then as far as the trial itself, I thought the opening statements were what I expected them to be. The lawyers laid out their theories of the case. I think that one thing that is striking to me as we’re seeing witnesses get called is something that you’re taught in law school and in mock trial is no matter what happens outside of the courtroom in the real world, none of it exists until it’s properly presented in evidence and in the record. So it’s interesting to me to watch the lawyers marshal in evidence through these witnesses and battle these competing narratives of what happened on that day. And we’re seeing new video footage mixed with new testimony mixed with testimony from different folks who are at the scene.

And all of that I think is building right now a compelling narrative for the prosecution and I’m curious to see how the defense … They’ve asked us to zoom out from what we’ve seen to open our minds to think broadly about the context of what happened, and I’m curious if they’re going to be able to effectively pull our attention away from these extremely damning pieces of video evidence, which I think have been coloring all of the testimony, which the testimony itself has been totally heartbreaking and hard to watch. And I’ve heard from friends at school that some of them have just chosen to wall themselves off from the trial because as much as they’re interested in the mechanics of the trial and hopeful for what this could mean, it’s difficult for them also to revisit the events.

Elie Honig:

Yeah. I agree. The evidence thus far, and we’re still in the maybe early to middle stages of the prosecution’s case, has been really powerful. And you said something interesting. If it feels to you, Safeena, and to the listeners, as if the prosecution is ahead or winning, so to speak at this point, it does to me too, but it always does at this point, right? We’re still early on in the case. The defense hasn’t had its chance to go yet. And really, the heart of the defense hasn’t come up through these witnesses.

We would often have these moments when I was trying cases at the SDNY where you’d be three, four, five days in and you’d be like, “We are kicking ass here. Everything is going great,” but it never stays on a straight line. The defense is going to get its shots. They’re going to start undermining your witnesses and they get the chance, if they want, to put on a case. Remember, the defendant of course does not have to put on any case. They can just try to rest on reasonable doubt. I don’t think we’ll see that here. I do think the defense will put on a case here.

One thing that is really interesting to me about this trial is there’s very little dispute thus far about the facts. There’s no dispute about a who done it, right? There’s no dispute about what Derek Chauvin did to George Floyd. There’s almost no dispute about just the minutiae, the minute to minute, who moved where, when, who said what when. And that’s largely because of the body camera footage, and it’s such a game changer in a way that may be difficult for someone of your generation to understand, because if this whole thing had happened 20 years ago, we would in all likelihood have no visibility on it, no videotape. You certainly wouldn’t have cell phone video. Body cameras largely did not exist, were largely not deployed 15, 20 years ago. This would have been all based on testimony, and then you would have had conflicting accounts. Here, the body camera footage is so powerful because it’s true. It’s video. It’s memorialized for all time.

And I’ll tell you, body camera footage is a new innovation. I was involved in that when I was at the AGS office in New Jersey. We started pushing on body cameras seven years ago. In 2014, we surveyed the state and realized that under 10 departments in the entire state of New Jersey were using body cameras and now virtually all of them do and virtually every police officer everywhere does and this is why, because the evidence, when you’re talking about accountability, you’re never going to have better accountability than videotaped evidence of what happened. And by the way, it protects good cops as well as it exposes bad cops. It’s an interesting dynamic here.

Now, we will start getting into factual and really more importantly, scientific disputes because to me, I saw three main defenses being raised by Chauvin’s team here. And I want to get your take on the relative strength of each of the three of them based on what we know so far, which of course is incomplete. There was the unruly crowd defense, which was essentially, this was a large threatening unruly crowd, and they somehow distracted or intimidated Derek Chauvin from doing his job properly in taking care of George Floyd. You can maybe tell by the way I phrased that what I think of that one.

Then there is related to that, the argument that Chauvin did not use excessive force, that the force he used was within his training as a police officer and was not unreasonably excessive. And then the third one is the overdose idea, the idea that he did not die, somehow, and I’m skeptical, but maybe they’ll prove it or maybe it’ll at least help reasonable doubt, somehow the knee to the neck for nine and a half minutes was not … forget about the cause, not even a cause of death, that instead it was just this coincidentally timed overdose.

Let’s run through those. Tell me how strong you see each of those defenses. Let’s combine them. It’s really the distracted by the crowd, hence he didn’t realize how much force he was using and didn’t use unreasonable force.

Safeena Mecklai:

My initial impression is none of these defenses is super persuasive. On the first one, the defense is both that the crowd was so unruly that the officer was distracted, but also he followed his training and police practices exactly how he should have in that situation, which then caused the death. And I think that I get logically why you make that argument, that he acted as any reasonable officer would act when confronted with this crowd.

I think there’s two problems. One, the prosecution’s witnesses of the crowd have done an incredible job telling their stories about how they reacted equally reasonably in that moment watching what occurred happen, that they reacted as any bystander would have and as a result are carrying tremendous trauma from the fact that they couldn’t intervene, feared for their own lives and I think that they seem like reasonable bystanders in that situation.

And two, the fact that training would counsel ever to apply nine minutes of force on the neck, whether there’s a crowd or not, seems to me like not a defense of Derek Chauvin, but an indictment of police use of force and practices at all. If that is in fact what police are trained to do and to respond in that situation, that’s great evidence that we need to reform the way that police work. I think the defense undermines itself because neither the crowd seems that unreasonable nor do the police practices seem reasonable.

Elie Honig:

Yeah. I think I mostly agree with what you just said. To me, the unruly crowd, heavy quotes on that, defense is just utter crap. They would have been better off not even making it. You don’t have to make all the defenses you can ever brainstorm or think of. I always think people make too many arguments. If I was defending this case, I would say, “No, we’re not going down that road.” It’s not backed up by the facts. I mean, you see that crowd. It’s not that large and they’re well-contained. I mean, they’re animated. They’re angry. They’re upset by what they’re seeing, but there’s no threat there, nor does Derek Chauvin ever appear nor does he reflect in his actions any sense that he’s actually under any threat. It’s a ridiculous defense and I think it has backfired and it almost seems they may have dropped it or they may be in the course of dropping it. That happens sometimes. You come out with an idea and it doesn’t really pan out and you let it go.

I also sort of share your sense of how could that possibly be about Chauvin’s use of force being appropriate. I know a bit about police use of forces. I’ve been involved in drafting those policies. I really cannot envision a scenario where not only are you applying pressure for nine and a half minutes to someone’s neck, that someone is rear handcuffed face down on the pavement.

Let’s discuss the second major defense here, which is the medical causation argument. Essentially, it boils down to Derek Chauvin’s actions, good, bad or indifferent, did not cause George Floyd’s death. That’s the defense. What’s your just gut instinct on that? Do you give this one any chance?

Safeena Mecklai:

It seems pretty ridiculous to me that because there are two potential causes, we’re going to point to the one that has nothing to do with Derek Chauvin. I imagine that this theory feels a little more … It feels stronger to me because you can point to scientific evidence, conflicting experts about the prosecution today has questioned George Floyd’s girlfriend about drug use. I think that there’s an element of confusing the causes or pointing to multiple causes that feels a little more fruitful, but at the same time, even where there was drug use or alternative things going on with George Floyd, it seems undeniable that the kneeling on the neck was a huge part of the cause of death, the fundamental cause of death. I’m curious to see how the defense presents evidence that really undermines that moment, which has obviously been seen on camera, which I think has been already persuasive to so many people.

Elie Honig:

I think I divide my reaction into two parts here. Scientifically, I mean, I’m clueless, right? I’ve seen the medical examiners reports, but this will be a battle of the experts. I will say this. If you’re the prosecutor, you don’t love the fact that there’s two different medical examiners reports. The county medical examiner essentially concluded that it was a heart attack brought about by or exacerbated by Chauvin’s conduct. The family’s independent/private medical examiner concluded that it was asphyxiation caused by Derek Chauvin’s actions. You don’t love that, but you can live with it because both of them concluded that it was homicide, one person causing the death of another, and that Chauvin’s actions were some contributing factor. That’s all they have to show, that his actions were some significant factor. You don’t have to show that they were the only factor.

Intuitively, common sense-wise the argument, the defense here is really difficult to understand. I mean, how could it possibly be that a grown man on another man’s neck doesn’t kill him? It almost seems to me impossible that that wouldn’t kill him, just common sense, and the amount of time. Somehow the amount of time was under reported by the cops initially at 8:46. Now it’s 9:29. That is just an unfathomable amount of time. Bakari Sellers, a CNN colleague of mine, said it in such a straightforward way that made me go, “Wow.” He said, “I don’t even know anybody who would do that to a dog, who would kneel on a dog’s neck like that for a minute, for two minutes, forget about nine minutes.” I’m skeptical, I guess, of both of these defenses, but it is trial. This is an unpredictable process. I’ve been shocked by trial outcomes before.

Safeena Mecklai:

Absolutely. And it feels like people are poised to be shocked by the outcome because of this country’s history of holding police officers to account, especially when part of the defense is going to be about split-second decisions, public safety, I think familiar themes and these kinds of trials of officers. And so I think even with such strong evidence, that video evidence, there’s still skepticism that they could get a verdict here. And so I’m curious to see how this unfolds too.

Elie Honig:

There are three complicating factors here. Any trial, even a normal trial run of the mill that nobody really is paying attention to, which is the vast majority of trials, are unpredictable because you’ve got 12 human beings with 12 different personalities in a box that have to be unanimous. On top of that here, we have a cop case, we have a race case and we have a media case. All three of those add additional layers of unpredictability to me, so it’s going to be interesting to see how that plays. Overall, what do you make of the performance of the lawyer so far? Do you think they’ve done a good job, ineffective, effective?

Safeena Mecklai:

I think that they’ve been effective for the most part. I think one thing that surprised me when I came to law school is I imagined that a lot of trial work was heavily performative, that it was a lot of big gestures, law and order type presentations, beautiful actors making these arguments that got you to stop in your tracks. But what I’ve noticed is that some of the most effective advocates are those who can talk straightforwardly, honestly, get you to buy into their narrative of what’s occurring and what has occurred, and sometimes that’s not the flashiest lawyering, but it’s strategic. Sometimes it’s quiet. It’s matter of fact. And I think that while I think mock trialers tend to over object to everything, I’ve noticed a couple moments where I thought the lawyers might intervene about something that was going on in the trial.

For the most part, I think that especially the prosecution has done a nice job of marshaling their evidence forward, and I’ve been curious about a couple of the defense decisions to either go very hard on cross-examination, especially with some of the minor witnesses or some of the witnesses who were clearly emotional. And I wondered, Elie, what you thought about how the defense is strategy to cross examine or not was playing.

Elie Honig:

I think the defense has made a couple of decisions not to cross certain witnesses, which I think were smart. You do not have to cross examine every witness. We watch movies and TVs and the defense lawyer always jumps up and says, “My turn, cross examination.” In real life, the better practice and a fairly common practice is to just say, “No cross, your honor.” If there’s no point to it, if there’s no fact that you’re trying to undermine or need to undermine, and if you risk alienating the jury, it’s smarter to pass.

Now, I think the defense should have passed more than they did. I don’t think they should have even stood up to ask a single question of any of the juveniles, but I think the cross examinations have been fairly mild. They haven’t been scorching. They haven’t been personal. Some of them have been a bit irrelevant or rambling or what’s he doing, but I don’t think he’s cross-examined thus far, Eric Nelson, the defense lawyer, in a way that would risk turning off the jury.

The last thing I want to talk about that I think is really interesting is the presence of cameras in the courtroom. This is really rare for Minnesota. This is the first time they’ve had a televised criminal trial. Federal trials, of course, are not broadcast live in any sense, video or audio. The prosecution objected to having cameras in the courtroom before this trial and the judge overruled that and the judge basically said, “There’s so much public interest in this, I feel like we need to do this.”

And my first concern, and I think the reason the prosecutor objected is, oh boy, we don’t want this turning into a circus because when you know there’s cameras on, you being all humans, you act differently. And when you, being defense lawyers, and I’ll include prosecutors in that, know the camera’s on, like you said, Safeena, they sometimes try to play into this idea of the super dramatic lawyer with the stunts and the slamming of the lectern and the frustrated actors who never made it onto the big screen and that kind of thing. That definitely happens in normal trials, by the way. All of these attorneys have been very understated. I mean, I’ve seen histrionics and dramatics in courtrooms in your standard little case that are 20 times anything we’ve seen in this case so far.

But the concern was, let’s not turn this into a circus. The judge disagreed and it’s not turned into a circus. If anything, I’ve been surprised, like I said, how low key all the players have been. I wonder if maybe that’s because of the cameras. Maybe that’s just the way the judge is running his courtroom. Maybe that’s just the way these attorneys are. But I think the end result of that is we’re getting a better process here. We’re getting a process that will be easier for people to trust in, to feel like was fair and even-handed both ways. I don’t know if the camera’s causing that or simply reflecting it, but for whatever reason, we’re not getting what I see as ridiculous showboating or over-the-top stuff that will make it seem like a silly process. What do you think of that so far?

Safeena Mecklai:

Yeah. I think that makes a lot of sense. I wondered, because of COVID restrictions that the audience in the actual courtroom is so limited, that I wondered for the lawyers and for the folks who are in the room, what the difference of feeling is when you trade off not having an in-person audience with having instead this national televised audience. I wondered how that was impacting their strategy.

Elie Honig:

Yeah. I will tell you from when I tried cases, I was never aware really of who was in the gallery. You are so focused on the jury. The jury is your one and only audience in most cases. And that’s all that I cared about, although I will say there were times when you would have a full courtroom and in my mind, to me, I think it would enhance my performance because you get that little jolt of adrenaline. In fact, a lot of times when the courtroom would be full, it would be with people who are pro-defendant, his family, his mob hangers-on or whoever. I got a jolt out of that. It was like being the bad guy in a visiting stadium or something in athletics. I always kind of liked that.

It was a little depressing, too, going after somebody with … I’ve had this happen, too, where you’re trying somebody who has literally nobody there, empty gallery. I actually think that can elicit sympathy from the jury as well, like, “This poor guy doesn’t have a single person show up or has one, his poor crying mother, show up alone,” or something like that. Interesting courtroom, real life courtroom dynamics.

Safeena Mecklai:

That would totally break my heart to see a defendant there by themselves.

Elie Honig:

That was my concern. It really was. I would almost be like, “Can we get a couple people in here to just make it seem like he’s got some support?” Well, thank you for joining me. I really do think this is a historic moment. It sounds cliche, but I think it’s true. I think that we and future students will be studying this 25, 50, 75, 100 years from now because it’s so important and the outcome will mean so much to our system. It’s also really interesting to hear about how younger people, how law students and professors are talking about this. It’s great that everyone is so invested. Thank you for joining me again here, Safeena. We’ll see you in three weeks.

Safeena Mecklai:

Sounds great. Thanks so much for having me, and as always, it’s so wonderful to process these events with you. I appreciate you having me on.

Elie Honig:

All right. And thanks everybody for tuning in once again. As always, please keep sending us your thoughts, your comments, your questions at [email protected]

Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Matt Wiener. And the cafe team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh and Margot Maley.