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Defense Cross-Examines Police Use-of-Force Instructor; Day Seven of Witness Testimony in Derek Chauvin Murder Trial. Aired 1- 1:30p ET

Aired April 6, 2021 - 13:00   ET


ERIC NELSON, DEFENSE ATTORNEY: And that would angled in towards the squad car, correct?



UNIDENTIFIED MALE: If you'll take that down, your honor.

Sir, I'm showing you what's been marked for identification purposes as Exhibit 1047. Does that also appear to be a still frame image taken from a body-worn camera of a Minneapolis Police officer?

MERCIL: Yes, sir.

NELSON: Timestamp being 8:27:49.

MERCIL: Yes, sir.

NELSON: 20:27:49, correct?

MERCIL: Correct.

NELSON: And it appears that the officer wearing this body-worn camera has now stood up, correct?

MERCIL: It's a different angle, sir, yes.

NELSON: From higher to lower, correct?

MERCIL: Lower to higher, sir?

NELSON: All right, it appears that the camera is at a higher angle, looking down?

MERCIL: Yes, sir.

NELSON: And can you see in this paragraph what appears to be the knee and shin placement of the officer?

MERCIL: Yes, sir.

NELSON: And would you agree that it appears that the knee is placed in the center between Mr. Floyd's shoulder blades?

MERCIL: It appears to be between his shoulder blades, sir, yes.

NELSON: I'd offer 1047.


UNIDENTIFIED MALE: No objection, your honor.

CAHILL: 1047 is received.

NELSON: Permission to publish?

CAHILL: You may.

NELSON: So, again, here in this particular photograph, you can see the placement of Mr. Chauvin's knee in between the shoulder blades of Mr. Floyd, correct?

MERCIL: Yes, sir.

NELSON: And it happens to be right here, that moment when the carotid artery is being palpated by the EMT?

MERCIL: Yes, sir.

NELSON: If we could take this down. I'll show you one last photograph, sir.

Again, does this appear to be a photograph taken from or a still frame image of a Minneapolis Police body camera?

MERCIL: Yes, sir.

NELSON: Time being 10:28:29?

MERCIL: Yes, sir.

NELSON: Excuse me, 20:28:29.

MERCIL: 20:28:29, sir, yes.

NELSON: Which would be 8:28:29?

MERCIL: Correct.

NELSON: And, again, can you see the placement of Officer Chauvin's knee.

MERCIL: Yes, sir.

NELSON: Can you see Mr. Floyd's head?

MERCIL: Yes, sir.

NELSON: I'd offer 1048.

CAHILL: Any objection?


CAHILL: 1048 is received.

NELSON: Permission to publish?

And, again, it's a little hard to see here, you can see Mr. Floyd's head in that area?

MERCIL: Yes, sir.

NELSON: And Mr. Chauvin, Officer Chauvin's knee between the shoulder blades of Mr. Floyd?

MERCIL: Yes, sir.

NELSON: Does this appear to be a neck restraint?

MERCIL: No, sir.

NELSON: Does this appear to be a prone hold that an officer may apply with his knee?


NELSON: You can take that down, your honor.

Now, you've -- you have talked about taking a -- or holding a person in the prone position after they have stopped resisting. Do you recall talking about that?

MERCIL: Yes, sir.

NELSON: And are there circumstances in your career where you have had to use your body weight to hold a suspect down for longer periods of time than, say, two or three seconds?

MERCIL: Yes, sir.

NELSON: And are there times where you have had to use your body weight to hold a suspect down for ten minutes?

MERCIL: I'm not sure if I have held somebody down for ten minutes or not, I don't have a recollection of that, sir.

NELSON: Is it possible?

MERCIL: Yes, it's possible.

NELSON: And there are circumstances, again, that an officer has to take into consideration in terms of continuing to use their body weight regardless of whether the person is resisting or not resisting, right?

MERCIL: Rephrase that.

NELSON: Sure. Sometimes an officer has called for EMS, correct?

MERCIL: That's correct.

NELSON: And sometimes an officer may hold a person using their body weight to restrain them awaiting the arrival of EMS, correct?


MERCIL: Yes, sir.

NELSON: You've done that yourself?

MERCIL: I have.

NELSON: And sometimes you had -- or is it fair to say that you've had to train officers to use their body weight to continue holding them until EMS arrives?

MERCIL: As long as needed to control them, yes.

NELSON: You would agree that a scene where force has been used and a crowd congregates and is voicing their displeasure or their concern or whatever you want to say, that can be a chaotic situation for an officer, right?

MERCIL: Yes, sir.

NELSON: And you would agree also that what you train Minneapolis Police officers to do relevant to their use of force is to consider the totality of the circumstances, agreed?

MERCIL: Yes, sir.

NELSON: And you train officers that the decision to use force is from their perspective?

MERCIL: Yes, sir.

NELSON: Not the perspective hindsight being 20/20?

MERCIL: That's correct.

NELSON: That's the specific policy of Minneapolis Police Department?

MERCIL: I believe that's Graham versus Connor, sir.

NELSON: That is encapsulated or incorporated into the Minneapolis Police Department policy on the use of force, correct?

MERCIL: Correct.

NELSON: Because situations are rapidly evolving, correct? MERCIL: That's correct.

NELSON: And sometimes just because an incident is ten minutes long or 20 minutes long, that doesn't mean that it can't instantaneously change?

MERCIL: That's correct.

NELSON: What may not be a threat one second can be a threat the next?

MERCIL: Correct.

NELSON: Have you ever been trained or trained others to say that if a person can talk, they can breathe?

MERCIL: It's been said, yes.

NELSON: In terms of the continuation of the use of force -- or, excuse me, not the continuation, the graphic that we looked at in Exhibit 110. If we could just publish Exhibit 110, your honor? This is the defense control and response training guide, correct?

MERCIL: That's correct.

NELSON: Simply because a person is not actively resisting, right, that doesn't mean you can't use some degree of force, correct?

MERCIL: That's correct.

NELSON: If a person is passively resisting, you can still use certain types of force, right?

MERCIL: Yes, sir.

NELSON: That's down in this area here, correct?

MERCIL: Correct.

NELSON: And that would include the use of joint manipulation, escort holds, pressure points, correct?

MERCIL: Yes, sir.

NELSON: We can take that down, your honor, sorry. Sorry, if we could take that down.

You were asked a series of questions about the strike chart and the neck -- you know, the red, yellow and green zones.

MERCIL: Yes, it's called the Monadnock chart, sir, yes.

NELSON: That chart is designed specifically for punches, baton strikes, things of that nature, correct?

MERCIL: That's when we use that graph, yes.

NELSON: In terms of the maximal restraint technique, you were describing the use of the maximal restraint technique?

MERCIL: Yes, sir.

NELSON: And, again, officers are trained to sometimes escalate the use of force in certain circumstances, correct?


NELSON: And deescalate the use force in certain circumstances?

MERCIL: Yes, sir.

NELSON: If an officer decides initially to use the maximal restraint technique and then subsequently decides against it because of a medical situation, or because of a lack of resistance, or -- would that be a de-escalation of the use of force?


NELSON: Is it more or less difficult to render medical aid if someone is in the maximal restraint technique?


MERCIL: I would say it was probably a little bit more difficult to (INAUDIBLE) on that.

NELSON: You would not be able to put them on their back, for example?

MERCIL: It would be difficult, sir, yes.

NELSON: In terms of the use of force, part of the ground defense program is actually to use body weight as a form of de-escalation, is it not?

MERCIL: Yes. It's use of force that may be used instead of higher escalations of force, yes.

NELSON: But sometimes holding someone in a position can be a deescalating technique?

MERCIL: Yes, sir.

NELSON: And, ultimately, again, in terms of the use of force and deciding how much force should be used, the difference in size of an officer to a subject is a consideration?

MERCIL: It is a consideration, yes.

NELSON: As well as the presence of other officers, right?

MERCIL: Yes, sir.

NELSON: You would agree that basically the use of force in any circumstance is incredibly dependent upon the situation?

MERCIL: Yes, sir.

NELSON: And when an officer is using force, they are to employ the critical decision-making model, correct?

MERCIL: They should be using that at all times.

NELSON: But including the use of force?

MERCIL: Yes, sir.

NELSON: And that critical decision-making model is not simply focused exclusively on the subject of whom -- of the force being used, correct?

MERCIL: It's a situational awareness tool.

NELSON: And the situational awareness extends beyond just the subject?

MERCIL: That's correct.

NELSON: It extends to numerous factors?

MERCIL: Correct.

NELSON: I have no further questions, your honor.

CAHILL: Mr. Schleicher?


Sir, to follow-up on some questions that counsel is asking you regarding the use of force being reasonable in the eyes of the officer, that's what you answered the training is, is that right?

MERCIL: The officer involved at the moment the force is used, yes.

SCHLEICHER: But force is always subject to review, correct?

MERCIL: Yes, sir.

SCHLEICHER: And review is always going to be after the fact, right?

MERCIL: That's correct.

SCHLEICHER: And the force that's used and reviewed must be reasonable.

MERCIL: That's correct.

SCHLEICHER: Taken from that perspective, the perspective of the officer at the time, correct?

MERCIL: That's correct.

SCHLEICHER: But the officer doesn't have the unfettered discretion to use whatever force they wish?

MERCIL: No, they do not, sir.

SCHLEICHER: Now, if we could publish Exhibit 110 again, which is the control guide continuum?

Now, when we look over here on the left-hand side and we're talking about what force can be used and what's proportional, we see that the officer is to look at the subject behavior, is that right?

MERCIL: For force on the subject, yes, sir.

SCHLEICHER: And the amount of force that they use that's proportionate has to be proportionate to the subject's behavior, correct?

MERCIL: Generally speaking, yes.

SCHLEICHER: So if, for example, a group of bystanders were doing something that the officer might find annoying, such as videotaping, that act would not be subject control behavior, would it?

MERCIL: No, sir.

SCHLEICHER: And that act would not justify the use of force or escalation of force by the officer, would it?

MERCIL: That alone, sir, no.

SCHLEICHER: Because that's not subject controlled behavior, correct?

MERCIL: Correct.

SCHLEICHER: So if we could then publish Exhibit 184? Exhibit 184 has been received into evidence and what you see here is a group of bystanders, is that right?

MERCIL: Yes, sir.

SCHLEICHER: And a couple of instances, you can see the bystanders have something in their hands, correct?

MERCIL: Yes, sir.

SCHLEICHER: And those appear to be video cameras, is that right, or smart phones?

MERCIL: Yes, sir.


SCHLEICHER: That extra fact would not justify an increased use of force, would it?

MERCIL: Just the cameras, sir, no.

SCHLEICHER: If you could take down Exhibit 184?

The acceptable use of a knee across a subject's back, it's a transitory position, is that right?

MERCIL: Yes, it is.

SCHLEICHER: It's meant to be used to gain control of the subject while the subject is being handcuffed, correct?

MERCIL: Correct.

SCHLEICHER: But all force must end at some point, is that right?

MERCIL: That is correct.

SCHLEICHER: And once a subject is under control and no longer resistant it's inappropriate to hold them in a position where you're draping your knee across your back or neck, isn't it?

MERCIL: I would say it's time to deescalate force, sir.

SCHLEICHER: And get off of them?

MERCIL: Yes, sir.

SCHLEICHER: You talked about the prone position in and of itself being something that can lead to positional asphyxia, is that right?

MERCIL: Yes, sir.

SCHLEICHER: Could that risk be increased by the addition of body weight?

MERCIL: Yes, sir.

SCHLEICHER: And so if an officer was placing body weight on the knee -- with a knee on the neck, or the back, or the knee -- sorry, the neck and the back, that would transfer the officer's body weight onto the person, correct?

MERCIL: Yes, sir.

SCHLEICHER: And that would increase the restriction -- I guess the decrease the ability of the subject to breathe, is that right?

MERCIL: Potentially, sir, yes.

SCHLEICHER: And it would not be -- or I have to ask you, would that be appropriate to hold someone in a position where it's more difficult to breathe for an extended period of time after the subject has stopped offering resistance?

MERCIL: Rephrase that, sir.

SCHLEICHER: Would it be appropriate and within training to hold a subject in that prone restrained position with the knee on the neck and a knee on the back for an extended period of time after the subject has stopped offering any resistance?

MERCIL: No, sir.

SCHLEICHER: Or has lost their pulse?

MERCIL: No, sir.

SCHLEICHER: You testified that an individual can be unconscious one moment and then suddenly become conscious and become violent, correct?

MERCIL: That is a potential, yes, sir.

SCHLEICHER: Have you ever had a circumstance where an individual has lost their pulse and suddenly come back to life and become more violent?

MERCIL: Not that I'm aware of, sir.

SCHLEICHER: Nothing further.

CAHILL: Anything further from the defense?

NELSON: Yes, sir.

Sir, in terms of the use of force and the continuation of the use of force, you were just shown Exhibit 184. I'm going to ask to republish 184.

Looking at this individual right here, does it appear that the man in blue is holding back the man in black?

MERCIL: Yes, sir, the guy with the boxing shirt on? Yes, sir, he's holding him back, at a glance.

NELSON: Now, in terms of the continuation of use of force, and we're talking about involvement of onlookers, right, the words they use matter, correct?

MERCIL: Yes, sir, they do.

NELSON: If they're cheering on and saying, good job, officer, that's one consideration, right?

MERCIL: Correct.

NELSON: But if they're saying, I'd slap the fuck out of you or you're a pussy or you're a chump, would that reasonably tend to rise alarm in a police officer?

MERCIL: Yes, sir.

NELSON: I have no further questions.

SCHLEICHER: And if they're saying, get off him, you're killing him, should the officer also take that into account and consider whether they're actions need to be reassessed? MERCIL: Potentially, sir, yes.

SCHLEICHER: Nothing further.


CAHILL: Thank you, sir, you're excused.

MERCIL: I appreciate that.

CAHILL: Members of the jury, we're going to take our noon recess. I have two meetings so we won't be able to reconvene until 1:30. Thank you.

ERICA HILL, CNN ANCHOR: So, the lunch recess beginning there in Minneapolis.


I want to go straight to our analysts here, CNN Senior Legal Analyst, former Federal Prosecutor Laura Coates, and CNN Law Enforcement Analyst Charles Ramsey, former Commissioner of the Philadelphia Police.

Laura, just starting with you and what we heard just that end there, the back and forth between the questions from the defense attorney and the prosecution with the training instructor who trained in use of force, it was pretty remarkable.

LAURA COATES, CNN SENIOR LEGAL ANALYST: It was, Erica, and this all goes down to this question of reasonableness. And one of the things that was mentioned was a case called Graham versus Connor, which is a Supreme Court case from many years ago that unanimously held, look, you judge the reasonableness of an officer's use of force through the lens of not you and I, not hindsight but from the perspective of a reasonable officer on the scene.

But you must take into account the severity of the crime that's alleged, whether the person is resisting arrest in some form or fashion and whether the person actually posed a threat.

So you're seeing here a discussion generally about this reasonableness. You've heard from multiple law enforcement officers who have said this is not what's trained, this is not how we do things, he went rogue, essentially, he's not one of us. He was a cop in name only that particular day, and you have that combined with the idea of, sure, we want officers to be able to use use of force, we want them to use reasonable force.

But if the person is not a threat, there is no evasion or resisting of arrest, and the person is not posing any potential threat because they're prone, handcuffed and unconscious, then we, again, go back to this same hurdle that the defense can't seem to overcome, which is why was there a continued use of force after all of these things had neutralized even a perceived threat of George Floyd?

HILL: And that's what they kept coming back to.

I do want to play a moment where there was earlier on in his testimony where Lieutenant Mercil was asked specifically about Chauvin's use of force. This is stop three.


SCHLEICHER: And what subject activity -- what level of subject activity would be required to use an unconscious neck restraint?

MERCIL: Well, according to this chart, it's in the red area, so it would be active aggression.

SCHLEICHER: Sir, is this an MPD-trained neck restraint?

MERCIL: No, sir.

SCHLEICHER: Has it ever been?

MERCIL: Not to my -- neck restraint, no, sir.

SCHLEICHER: Is this an MPD-authorized restraint technique?

MERCIL: A knee on the neck would be something that does happen in use of force that isn't unauthorized.

SCHLEICHER: And under what circumstances would that be authorized? How long can you do that?

MERCIL: I don't know if there's a timeframe. It would depend on the circumstance at the time.

SCHLEICHER: Which would include what?

MERCIL: The type of resistance you're getting from the subject you're putting the knee on.

SCHLEICHER: And so if there was -- say, for example, the subject was under control, and handcuffed, would this be authorized?

MERCIL: I would say no.


HILL: He would say no. The defense attorney, Eric Nelson, kept coming back to that, commissioner, and one of the things he said, in this is probably just within the last 20 minutes or so, asking about how long you could use your body weight to restrain someone? Could you do that while you werewaiting, for example, for -- until EMS arrived, in case you were concerned about it? And he brought up two, not just the concern about the suspect moving but the people around you and taking in the totality of the situation.

What did you hear in the training instructor's answers to those questions? CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Well, first of all, your first duty is to the person you're taking into custody to make sure that they're safe as safe as they can be. The second thing, and the defense keeps doing this, but he uses a lot of examples that really don't apply to this particular case because it's not what happened.

And so if you've got an individual who you've got down, that individual is not unconscious, they're still awake, they're talking and maybe, you know, squirming around and things like that then, yes, sure, you try to keep continuing to hold them down. That's not what happened in this case.

And so I keep kind of going back to that because he keeps using these examples, even the knee moving to the shoulder. Well, the paramedics are there, they have to check the artery to see if there's a pulse. He had to move his knee in order for that to happen. You know, it doesn't explain the other nine plus minutes in which he actually had him in a prone position and there was absolutely no movement at all from George Floyd.

And so I understand what he's trying to do but you can't get around the video. I mean, the video is incredibly powerful. And once the jury continues to look at that over and over again, I mean, it's kind of hard to get past that. It really would be.


And so he can cherry pick, and that's exactly what he's doing, but I just don't know how successful he'll be in the end.

HILL: You bring up the video, which I think is so interesting, because there was also an exchange, when the defense, it seemed, was really trying to justify the demeanor of Derek Chauvin when all of this was happening. This is stop two. Let's play that moment and, Laura, I want to ask you about it on the other side.


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


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.


HILL: And so the testimony at that point was coming from Sergeant Ker Yang, who deals with crisis intervention training, training officers in that. What really struck me about that moment though, Laura, is this is clearly trying to paint a picture of Derek Chauvin just being cool, calm and collected in this moment and yet we have these videos now and some that we're all seeing for the first time over the last couple of days of testimony. I'm curious, do you think that's what these videos actually show?

COATES: No. I think the attempt to characterize and repackage what was seen through the eyes of the bystanders who were there as somehow police swagger is not very persuasive here. What they're trying to do is counter this impression that people have of Derek Chauvin, which is that he wasn't cool under pressure, that he was, perhaps, instead, calculating and dismissive and arrogant in his inability and refusal to actually address the pleas from the audience, from the bystanders to actually, at the minimum, check the pulse of the person whose neck he was still kneeling.

This is an attempt, in many respects, to do some sort of testifying without having Derek Chauvin take the stand and say, listen, what you're seeing here is not an arrogant, defiant, obstinate police officer, right? What you're seeing is somebody who's actually been trained to be cool as a cucumber and level-headed in the face of all of this unruliness in the crowd.

But, again, the different vantage points that you're seeing from the video, number one, as we saw last week, don't show the unruly crowd that would require him to lose such focus and not be able to perform a duty of care but it also goes to the testimony of one of those witnesses, the mixed martial arts fighter who talked about not having a human connection, that he called the police on the police because he wasn't getting any response, that he tried to talk to Officer Thao, wasn't getting a response.

And so they're trying to unpack that and say, what you saw there was actually following police training because, Erica, up until now, we've seen officer after officer, training official, the police chief, all say that not only was this not trained behavior, he wasn't following the training that told him to do the opposite. HILL: You know, as you bring that up, I'm just, you know, going back in my mind about everything we've heard not just in these last several days but this morning and at the very end here, because we keep hearing from the defense, Commissioner, they keep going back to this idea of you have to take in the full situation that's happening here. And they are, as Laura pointed out, trying to paint this picture of this unruly mob.

And at the very end, we heard the defense attorney talk about, well, if people are yelling at you and if people are saying disparaging things to you, could that raise your adrenaline? Could make it maybe a little harder on you as an officer?

And then the final words we heard from the prosecution were, and if you're hearing a suspect say, I can't breathe, and if you're hearing people say, this guy needs help, should that also have an impact on you, and the training officer saying very simply, yes.

The juxtaposition of those two, I think, really puts this in perspective, Commissioner.

RAMSEY: Well, I mean, it is true. If -- I mean, you have to take into account all these things. And, you know, just think about it for a minute. Part of what the defense is saying is that, you know, his knee was on his shoulder, not on the neck and the paramedic was able to check for a pulse.

Well, I mean, Chauvin could have done the same thing. I mean, that one arm that he's got on his hip during that entire time, he could have easily reached down and checked the -- for a pulse if his knee was truly not on his neck during that period of time and the man is motionless and not moving. The handcuffs are behind the back. The other two officers, the wrist is right there, if you wanted to check for a pulse, although handcuffs maybe could maybe change the -- that situation in terms of getting a pulse from the wrist but there was opportunity there.


Once that man is laying there for a period of time, he's motionless, check on his physical well-being.