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CNN NEWSROOM

Prosecution Interviews Police Use-of-Force Instructor. Aired 11-11:30a ET

Aired April 6, 2021 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


LAURA COATES, CNN SENIOR LEGAL ANALYST: To do so.

[11:00:01]

This is a continuation of that:

KATE BOLDUAN, CNN ANCHOR: And, Chief, crisis intervention policies and training. This is obviously entirely what they're focusing on with the sergeant. This is the defense attorney now speaking with the sergeant and sidebaring right now. We'll see what comes of this.

What do you think of the testimony? What are you hearing that Ker Yang is laying out in terms of what policy was, what training was, what expectations and duties are of officers when it comes to crisis intervention?

CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Well, you went through the crisis intervention team training, which I have to mention, and I don't know about Minneapolis, whether or not all the officers went through the full 40-hour block. Some departments give it to you will the officers. Others, it's more on the voluntary basis. I know in Philly, it was a voluntary basis. But they had over 2,000 officers that had been trained when I left five years ago. So, it depends on the agency.

But he also went through not only CIT training talking about --

BOLDUAN: Chief, I'm not only interrupting because we're jumping back in. The sidebar is not ended. Let's listen back in.

ERIC NELSON, DEFENSE ATTORNEY FOR DEREK CHAUVIN: Do you train both cadets, recruits, as well as veteran officers?

SGT. KER YANG, MINNEAPOLIS POLICE CRISIS INTERVENTION COORDINATOR: Yes, I do.

NELSON: Okay. And can you describe the difference between the training that a cadet would receive versus a veteran officer?

YANG: Something like this will be given to the recruits and officers that have gone through the Minnesota CIT Officers Association training on crisis de-escalation. We would get them a progression training. We will introduce all the topics. All the topics like autism (ph) to them and go through different type of topic that is part of crisis training.

So, it's a little bit different. It's different from what the recruits and the regular officer will get.

NELSON: Now, the information that is presented to recruits versus veteran officers, is it generally the same type, broad categories of information?

YANG: It's possible the same, yes, similar. We want to be consistent. Similar, yes.

NELSON: Right. And so, the information that a veteran officer would receive in a 40-hour training would be inclusive of what to look for in terms of crisis, would it not?

YANG: Yes.

NELSON: Right.

You would train officers on the policy about crisis intervention. Correct?

YANG: Yes.

NELSON: You would train them about what to look for when a person is in crisis, right?

YANG: Yes. Are you talking about recruit training or the veteran officer?

NELSON: Veteran officer.

YANG: The veteran officers -- are you referring to the 40-hour training or?

NELSON: Yes.

YANG: Forty-hour training, I have nothing to do with the 40-hour training for the veteran officer, that's Minnesota CIT Officers Association. .

NELSON: Okay. So you don't know any information that the veteran training officer -- the veteran officers would receive?

YANG: I do know some of it. But not the entire curriculum.

NELSON: Okay. You've trained veteran officers yourself?

YANG: I do. But not in the 40-hour week.

NELSON: Understood. But in the refresher type course?

YANG: In a refresher type course, yes.

NELSON: Right. And in the refresher type courses, do you discuss with officers the policy of crisis intervention? YANG: Yes.

NELSON: Do you discuss with officers the signs to look for both in terms of suspects as well as individuals observing?

YANG: Especially the suspects. .

NELSON: Especially the suspects:

YANG: Yes.

NELSON: But ultimately, you would agree that training also includes the critical decision making model, right?

YANG: Yes.

NELSON: And the critical decision making model is not limited to or focused on simply the suspect, correct?

UNIDENTIFIED MALE: Objection, leading.

JUDGE PETER CAHILL, HENNEPIN COUNTY COURTHOUSE: He's back on to a topic where he can lead now.

NELSON: Correct?

YANG: I'm sorry?

CAHILL: -- answering the objection is overruled so you can answer it.

YANG: Okay.

Will you repeat that, sir?

NELSON: Sure, I have to remember my question. The critical decision making policy that you train veteran officers on, would be inclusive of people other than just the suspect. Is that correct?

YANG: There is no policy on the critical decision making model, only on the crisis policy.

NELSON: Okay. The critical decision making pol -- model -- I keep calling it a policy, that's just my fault. But the critical decision making model is not limited to interpreting or responding to the suspect exclusively, is it?

YANG: That's correct.

NELSON: An officer is trained in the critical decision making model to go out and review the entirety of the situation, the totality of the circumstances, correct?

[11:05:01]

YANG: That's correct, sir. NELSON: And the totality of the circumstances is more than just how

you interact with the subject with -- of whom you are arresting? Right?

YANG: That's correct.

NELSON: That would include citizen bystanders, right?

YANG: That's correct.

NELSON: What do to do when a citizen bystander starts filming you?

YANG: That's correct, yes, sir.

NELSON: How to try to interpret whether citizens posed a threat or arrest, right?

YANG: Right.

NELSON: How to consider -- you would consider your own interactions also with the suspect themselves, correct?

YANG: That's correct.

NELSON: And you describe this critical decision making model as being a very dynamic ever changing thing based upon information that comes to the officer in real time, right?

YANG: That's correct. Yes, sir.

NELSON: And so an officer may consider who has used force may move backwards in the policy but may have to jump somewhere in the policy because new information comes or the model?

YANG: Yes, sir.

NELSON: So it is a constantly evolving process where an officer is entrusted to make decisions based on all information that he or she perceives, correct?

YANG: That's correct, sir, yes, sir.

NELSON: Yeah, and that also they offered training, right? Their training?

YANG: Yes, sir.

NELSON: And other things that may not be apparent to a citizen.

YANG: Yes, sir.

NELSON: Right.

Tactical decision making, for example.

YANG: Yes, sir. NELSON: Knowing that medical help was on the way, right?

YANG: Yes, sir.

NELSON: Making decisions about officers' safety, right?

YANG: Yes, sir.

NELSON: So all of these thing -- it's not just one small thing that you're focusing on the subject, you're taking in a lot of information and processing it all kind of simultaneously through this critical decision making model? Agreed.

YANG: Agreed, yes, sir.

NELSON: All right. And so, in terms of -- and I'll take this down for now -- but in terms of information that you advise or talk to officers, veteran officers about, are how to recognize the signs of someone in crisis, right?

YANG: Yes, sir.

NELSON: And the Minneapolis Police Department policy on crisis intervention has a pretty specific definition of what constitutes a crisis, right?

YANG: Yes, sir.

NELSON: It's not limited to someone who may have a mental health problem, right?

YANG: Yes, sir.

NELSON: It could include people who are using controlled substances?

YANG: Yes, sir.

NELSON: It could include people that are simply experiencing some event that is overwhelming them, right?

YANG: Yes, sir.

NELSON: And that may be losing a job or getting a divorce but it is what that person is observing at the time, agreed?

YANG: Yes, sir.

NELSON: So the crisis intervention policy actually defines crisis as having a trajectory, correct?

YANG: Yes, sir.

NELSON: And that trajectory can increase in the severity over time.

YANG: Yes, sir.

NELSON: And that's why it becomes important for an officer to create time and distance, right?

YANG: Yes, sir.

NELSON: And creating time and distance for an officer is an important part of the de-escalation process, is it not?

YANG: Yes, sir.

NELSON: And would you agree that you train police officers that as that intensity of crisis increases, the risk or threat to the officer grows greater?

YANG: I don't believe I trained specifically like that. Because as the intensity, my training is the intensity increases and you have the distant -- like you said, the time you try to bring it down. Not increase intensity of it.

NELSON: What I'm talking about is not the officer trying to increase the intensity of it. My question is this: As a person is in crisis, and the intensity of their own personal crisis grows, you train officers that as they kind of get more intense, the risk to the officer or others is greater.

YANG: Yes, sir.

NELSON: And, in fact, officers are trained to respond to that in a variety of ways, right?

[11:10:02]

YANG: Yes, sir.

NELSON: Some of -- some of the technique that's the Minneapolis Police Department trains both veterans and recruits would be to have a confidence about them, right?

YANG: Confidence about them?

NELSON: Right.

YANG: Yes, sir.

NELSON: An officer should try to appear confident in his or her actions.

YANG: Yes, sir.

NELSON: They should also try to stay calm, right?

YANG: Yes, sir.

NELSON: They should try to maintain space, right?

YANG: Yes.

NELSON: They should speak slowly and softly. YANG: Yes, sir.

NELSON: They should avoid staring or eye contact?

YANG: Yes, sir.

NELSON: And ultimately, when a police officer is dealing with any situation, they could be dealing with any number of people who are in crisis, right?

YANG: Yes, sir.

NELSON: Right. The subject, the arrestee may be in crisis, right?

YANG: Yes, sir.

NELSON: People who are watching may be in crisis.

YANG: Yes, sir.

NELSON: Another officer could be in crisis?

YANG: Yes, sir.

NELSON: Right? And an officer has to take all of that in and do this assessment and make a determination what his or her next steps would be, right?

YANG: Yes, sir.

NELSON: And the observations of the officer in that situation, I think you described on direct-examination, you described that an officer will also take into and apply to the critical decision making model his own sensory, his or her own sensory perception?

YANG: Yes, sir.

NELSON: So the touch, having a feeling a suspecting tense, right?

YANG: Yes, sir.

NELSON: Or loose, right?

YANG: Yes, sir.

NELSON: What they may hear comes into play.

YANG: Yes, sir.

NELSON: So if they hear people threatening them or potentially threatening violence, that goes into that critical decision making model as well, right?

YANG: Yes, sir.

NELSON: And often times the scene of an arrested individual is very tense, right?

YANG: Yes, sir.

NELSON: I have no further questions.

CAHILL: Any redirect?

STEVE SCHLEICHER, PROSECUTING ATORNEY: Yes, sir.

Can we publish exhibit 276 again, please?

Thank you.

So I'm explaining the critical decision making model that you been testifying about. And the thrust of your direct testimony was using this in terms of assessing a person in crisis with a purpose of determining whether or not they needed medical intervention, is that right?

YANG: Yes, sir.

SCHLEICHER: Now in discussing this, again, all of these must be taken into account when deciding the next step, is that right?

YANG: Yes, sir.

SCHLEICHER: And the officer always has to keep in mind their support to act. That's one of the parts of the model. Is that right?

YANG: Yes, sir.

SCHLEICHER: Now defense counsel asked you if the officer should just focus on one small thing. And I would like you to make some sort of comment on differentiating between a small thing and a big thing, because you would agree that something is a big thing would be more important than a small thing, right?

YANG: It depends on what a big thing is and what a small thing is. .

SCHLEICHER: Well, for example, if we're looking at assessing somebody's medical condition, for the purpose of rendering emergency aid, would that be a big thing or a small thing?

YANG: That would be a big thing.

SCHLEICHER: If then that is contrasted with, say, a 17-year-old filming you with a camera. Would that be a big thing, the filming, or a small thing?

YANG: The filming is a small thing.

SCHLEICHER: And so then if you're taking all of the situations, all the circumstances into account, you have a big thing and you have a small thing.

[11:15:08] You're again looking at your authority to act. And that is policy, right?

YANG: Yes, sir.

SCHLEICHER: And policy would include the policy governing the use of force and that it must be reasonable, correct?

YANG: Yes, sir.

SCHLEICHER: And it would also include for authorities to act, a duty to render medical aid, is that right?

YANG: Yes, sir.

SCHLEICHER: As the policy is written, correct?

YANG: Yes, sir.

SCHLEICHER: Which includes not only contacting the ambulance but performing emergency aid like chest compressions or CPR?

YANG: Yes, sir.

SCHLEICHER: Nothing further.

CAHILL: Anything further?

Please proceed.

NELSON: Sergeant Yang, in terms of the critical decision making model, again, you're analyzing all of the things medical aid, threats from citizens or observers, whether people are recording, what you're seeing, what you're feeling. It all is premised on whether it is safe and feasible to do something, correct?

YANG: Yes, sir.

NELSON: Nothing further.

(CROSSTALK)

CAHILL: You are excused.

YANG: Thank you, Your Honor.

CAHILL: You bet.

BOLDUAN: All right. They're done with this witness. Sergeant Ker Yang.

Let me bring in CNN legal analyst and former prosecutor Laura Coates and Charles Ramsey, former Philadelphia police commissioner. I'm going to say in layman's terms this seemed a little bit meticulous for some of us. I'll include myself in this. Like as if they were kind of beating around the bush on something with this witness. Can you walk us through what we were watching?

COATES: So here's the strategy of prosecutors. While many people watching it, they think to themselves, okay, we get the point. You're belaboring something here. They have to be very meticulous and not leave any stone unturned. They have to make sure that they're accounting for even the most obscure reference that might be taking a note by a juror that says they really get to the meat of the matter? They have to be exhausted even if it for the viewing audience it feels like they're belaboring a point.

However, this particular witness was there to talk about this crisis intervention, and the continuum of force that could be used --

(CROSSTALK)

BOLDUAN: I'm going to interrupt. We have to jump back to Minneapolis right now. Let's jump in it.

SCHLEICHER: Thank you, Your Honor. Sir, how you are employed?

LT. JOHNNY MERCIL, MINNEAPOLIS POLICE: With the city of Minneapolis police department.

SCHLEICHER: What do you do for the city of Minneapolis?

MERCIL: I'm currently on medical leave but I'm a lieutenant with the police department.

SCHLEICHER: How long you have been with MPD?

MERCIL: Since 1996.

SCHLEICHER: I'd like you to tell the jury a little bit about yourself.

Could you share your educational background?

MERCIL: Yes, sir. I got a four year degree from the University of North Dakota in criminal justice studies.

SCHLEICHER: What year?

MERCIL: I graduated 1995.

SCHLEICHER: Okay. And after you graduated from the university, did you get a job in law enforcement right away or did you go elsewhere?

MERCIL: No, sir, I got hired from the Minneapolis Police Department in 1996 and joined the Minneapolis Police Academy.

SCHLEICHER: Describe your academy experience.

MERCIAL: I was a cadet. So, we did police academy and college courses to qualify for the Minnesota POST test.

SCHLEICHER: Did you take and pass the POST test?

MERCIL: Yes, sir.

SCHLEICHER: License peace officer?

CAHILL: Wait a little bit so we don't talk over each other.

MERCIL: Yes, Your Honor.

CAHILL: Thank you.

MERCIL: Yes, sir.

SCHLEICHER: After you completed your course work, did you go into a field training program?

MERCIL: Yes, sir.

SCHLEICHER: How long were you in that program?

MERCIL: I believe it was about four months at that time.

SCHLEICHER: OK. And then you receive your first assignment as police officer, is that right?

MERCIL: Yes, sir.

SCHLEICHER: Can you please tell the jury what your first assignment was? Where were you, and what were your duties?

MERCIL: Yes, I was a patrol officer assigned to the third precinct, which is southeast Minneapolis. And duties were patrolling the streets, answering 911 calls.

SCHLEICHER: Okay. How long did you serve as a patrol officer in the third precinct?

MERCIL: Initially for a couple years and then to the community response team, which is a plain clothed unit.

SCHLEICHER: What is -- it's also referred -- the community response team effort, I heard it called the CRT?

MERCIL: Yes, sir, CRT team.

SCHLEICHER: CRT team, what does that do?

MERCIL: They respond to the local community's concerns about crime, prostitution, drug dealing, gang activity.

SCHLEICHER: How long were you with the CRT team?

MERCIL: I did that for about three years.

SCHLEICHER: And then what was your assignment afterwards?

MERCIL: From there, I went to the mounted patrol unit, and that was technically downtown unit at the time.

SCHLEICHER: What is a mounted patrol unit do?

[11:20:00]

MERCIL: We patrol on horse back, mainly crowd control for busy times in Minneapolis. We focus on bar closing downtown Minneapolis.

SCHLEICHER: Yeah, how long did you do that?

MERCIL: Full time for about a year and a half. And then I went to patrol in downtown middle watch, a precinct.

SCHLEICHER: Okay. And how long were you in the downtown middle watch?

MERCIL: I was on downtown middle watch until 2006 and then I got promoted to sergeant.

SCHLEICHER: In order to be promoted for sergeant, did you take an exam and pass it?

MERCIL: Yes, sir. It's a civil service exam along with an assessment center.

SCHLEICHER: And after you were selected a sergeant, you received your first assignment?

MERCIL: Yes, sir.

SCHLEICHER: What was that?

MERCIL: I went to the robber unit in downtown near city hall. And then from there, I went to the juvenile unit. And then I eventually ended up back downtown on patrol as a supervisor.

SCHLEICHER: Okay.

And how long did that take? What year are we up to now?

MERCIL: I think we're at about 2007, 2008.

SCHLEICHER: Okay. And after that?

MERCIL: I was there for a couple of years, I ended going back to mounted patrol full time as a sergeant, in charge of the mountain. That went through 2009. I went back to the street for about a year and a half, and then I went to the Minneapolis Police Department's gang enforcement team as a sergeant.

SCHLEICHER: OK.

MERCIL: And then we from there, I investigated gang crimes, gun crimes. Then after that assignment, I ended up on the north side on patrol for about a year, a year and a half. And then I went back downtown as a sergeant on the community response team, the CRT team downtown. And then in 2017, I took the exam for the lieutenant and passed and

was a lieutenant in 2017.

SCHLEICHER: And where were you assigned that as a lieutenant?

MERCIL: After I got promoted, I was transferred to the training division in charge of use of force.

SCHLEICHER: Okay.

I'd like you to talk to the jury a little bit about your own background in the use of force. Are you familiar with the Minneapolis Police Departmental policy regarding the use of force?

MERCIL: Yes, sir. I trained for several years for that.

SCHLEICHER: That was part of your academy training?

MERCIL: Partially. You know, you get to be familiar with the use of force in the academy.

SCHLEICHER: And then after you lift the academy, did you have to take refresher courses which would have included use of force training every year?

MERCIL: Yes, sir.

SCHLEICHER: In order to maintain your POST license?

MERCIL: That's correct, sir.

SCHLEICHER: You have had training beyond that, beyond what was presented at the academy and your yearly certification?

MERCIL: Yes, sir.

SCHLEICHER: Could you please describe it?

MERCIL: Yes. So, I became a part-time use of force instructor in about 2010. I maintained that part time status use of force instructor up until I was promoted to lieutenant where I went to the training unit full time.

SCHLEICHER: What did you have so to do to be qualified to be a use of force instructor?

MERCIL: I went through different courses designed to train us up on use of force. I also started training Brazilian jiu-jitsu for the department, as part of our ground defense initiative, several other classes in different academies I went through too.

SCHLEICHER: I'd like to qualify a few terms if we may. We talk about use of force and use of force training. We also hear the term defensive tactics.

Can you differentiate between the two? MERCIL: I think they're interchangeable. I think use of force is the

more appropriate term. But I think defensive tactics has been more of a term used longer so people tend to refer to use of force instructors as defensive tactic instructors.

SCHLEICHER: Would defensive tactics, in terms of defense, defensive tactics instruction include more hands on type instruction? You mentioned Brazilian jiu-jitsu, for example?

MERCIL: Yes, sir.

SCHLEICHER: Were you interested in Brazilian jiu-jitsu before becoming a police officer? How did that develop?

MERCIL: No, sir. I was in martial arts through college and then I got interested in it from some of the other use of force instructors kind of recruited me to do that and really fell in love with the art form and really what the implications and uses are for law enforcement specifically.

SCHLEICHER: Would you please just provide a very high level overview of what Brazilian jiu-jitsu is and some of its basic principles?

MERCIL: Yes, sir. It's a form of marshal art that focuses on leverage and body control, deemphasizes strikes and true Brazilian jiu-jitsu, there aren't strikes. There's no punching or kicking.

It is using body weight. Kind of like wrestling and joint lock manipulation. Neck restraints. Things -- things that, you know, pain compliance as well as physical body control to get people to comply.

[11:25:10]

SCHLEICHER: So you use that phrase pain compliance, what is that?

MERCIL: Pain compliance is using a technique that causes the person using it against to have pain so they comply to your -- whatever it is you're asking them to do.

SCHLEICHER: So if we were using an example maybe from childhood, you familiar with the game mercy?

MERCIL: Yes, sir.

SCHLEICHER: All right. Where you lock fingers and twist down and somebody has to submit. Is that similar to that?

MERCIL: Yes, sir.

SCHLEICHER: All right. Although Brazilian jiu-jitsu is not the only defensive tactic that officers at MPD are trained on, is it?

MERCIL: No, sir.

SCHLEICHER: It's just one of a variety of different tools that can be employed to deploy force? Is that right? MERCIL: That's correct.

SCHLEICHER: For the purpose of enforcing the law? Correct?

MERCIL: That's correct.

SCHLEICHER: And as a use of force instructor, you became certified, did you have to become knowledgeable in all the relevant departmental policies and procedures regarding the use of force, the 5-300 series?

MERCIL: Yes, sir.

SCHLEICHER: As well state law governing the use of force which is largely integrated into Minneapolis departmental policy, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And you indicated that you were the lieutenant, lieutenant over in the training center, is that right?

MERCIL: Training division, sir.

SCHLEICHER: Training division.

And please describe your role then as a lieutenant in the training division.

MERCIL: Yes, sir. I was in charge of use of force. I was also in charge of the patrol operation of training and the police range. And I was in charge of all of our continuing education to make sure that our officers are fulfilling the mandates to become a police officer.

SCHLEICHER: And as part of that, to make sure that you're properly reporting to the post and you keep records, sign in sheets and what not of particular officers having completed training, is that right?

MERCIL: That's correct.

SCHLEICHER: And those training hours are collected and reported into the workforce director program?

MERCIL: Yes, sir.

SCHLEICHER: So you have an accurate record of who has been trained in what? Is that right?

MERCIL: Yes, sir.

SCHLEICHER: And is it -- when you're the lieutenant of the training division in use of force, are you coordinating both pre-service and in service training?

MERCIL: Yes, sir. The pre-service side is use of force, the range and patrol operation. The in service side is the post that we have to keep up with. That is the post service side in service. SCHLEICHER: And as lieutenant, obviously, you're in charge of --

you're in a position of rank over sergeants, is that right?

MERCIL: That's correct.

SCHLEICHER: And those are usually the level, the trainers that largely are sergeant level, is that right?

MERCIL: Mainly officers with sergeants overseeing.

SCHLEICHER: As the lieutenant and the person in charge of this training, are you familiar with the curriculum that is imparted upon both pre-service and in-service trainees?

MERCIL: Yes, sir.

SCHLEICHER: You help develop the curriculum?

MERCIL: Yes, sir.

SCHLEICHER: And do you approve the curriculum?

MERCIL: Yes, sir.

SCHLEICHER: The curriculum could include -- well, it does include just a general booklet that is put together by the defensive tactics instructors, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And that booklet contains the general concepts for use of force that are imparted on pre-service trainings and in service trainings, is that right?

MERCIL: That's correct.

SCHLEICHER: If I can show exhibit 126 just to the witness. Showing what you is marked for identification as exhibit 126, that's labeled Minneapolis Police Department Use of Force Manual academics and techniques produced by the MPD defensive tactics team.

Are you familiar with this document and the predecessor documents?

MERCIL: Yes, sir.

SCHLEICHER: Does this document contain sort of the general curriculum and knowledge that is imparted upon MPD pre-service and in service trainings?

MERCIL: Yes, sir.

SCHLEICHER: Offer exhibit 126.

UNIDENTIFIED MALE: No objection.

CAHILL: One twenty-six is received. SCHLEICHER: And we won't public that at this point.

And do you also participate in and approve various classroom PowerPoint training sessions that are imparted upon both pre-service and in service trainings?

MERCIL: Yes, sir.

SCHLEICHER: And at this time, just to the witness, I would like to show what is marked for identification as exhibit 119. Exhibit 119 is a slide deck that is.