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Testimony Continues In Derek Chauvin Trial. Aired 3-3:30p ET
Aired April 13, 2021 - 15:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
ERIC NELSON, ATTORNEY FOR DEREK CHAUVIN: Now, in terms of your training, again, as -- that you have been trained and trained other officers in the use of crowd control or crowd control issues, right?
BARRY BRODD, EXPERT WITNESS ON USE OF FORCE: Yes.
NELSON: How, in law enforcement, is a crowd defined?
BRODD: So, a crowd, just like if you look at a football stadium, so it's a group of people gathered together for a common purpose.
So, a crowd, by definition, isn't unlawful. And, actually, the law enforcement definition is two or more people constitute a crowd. So, because it's not unlawful, it doesn't mean that it doesn't become a consideration for the officers.
Can you explain, in your analysis, how you think the crowd or this group of people that have gathered around and were watching affected the officers in their use of force?
BRODD: So, we kind of go back to the situational awareness issue, is that, yes, the officers are dealing with Mr. Floyd, but there's also other factors for them to consider.
And in this case, the crowd started to grow in size, started to become more vocal. So, now officers are always trained to deal with, right, so what threat is the biggest threat? Is it the suspect on the ground in front of me in handcuffs that we have relatively controlled, or is it the unknown threat posed by the crowd that could go from verbal to trying to interfere with my arrest process in a matter of seconds?
NELSON: Did you factor that into your analysis of this case?
BRODD: I did.
NELSON: How did it -- how so?
BRODD: I could see Officer Chauvin's focus started to move from Mr. Floyd to the crowd, to at one point I think Officer Chauvin felt threatened enough that he withdrew his pepper spray canister and gave verbal commands to the crowd to stay back. So now he's dealing with the bigger threat. NELSON: So, just to kind of wrap up, could you summarize the final opinions that you have made in this case?
BRODD: I felt that Officer Chauvin's interactions with Mr. Floyd were following his training, following current practices in policing, and were objectively reasonable.
NELSON: Thank you. I have no further questions.
PETER CAHILL, HENNEPIN COUNTY, MINNESOTA, JUDGE: Mr. Schleicher.
UNIDENTIFIED MALE: (OFF-MIKE)
UNIDENTIFIED MALE: Sure.
BROOKE BALDWIN, CNN HOST: All right, Cedric, says Chauvin's actions were justified, following his training. What do you think?
CEDRIC ALEXANDER, FORMER PRESIDENT, NATIONAL ORGANIZATION OF BLACK LAW ENFORCEMENT EXECUTIVES: Defense got to put up a case.
And from what I just heard, I mean, there it is. When I put up what I have heard so far, Brooke, in comparison to the prosecution's witnesses, there's just absolutely no comparison. There are a lot of places -- not being a use of force expert, but, of course, there are a lot of places in a lot of this dialogue I would raise a great deal of question.
And there was one piece in there that was really very interesting. And I can't recall exactly what it was, but, you know, the whole idea, whatever use of force that they use...
BALDWIN: Well, he said -- if I may jump in, Cedric -- and, Elie, I want to come to you too on this -- "I don't consider a prone restraint a use of force."
ALEXANDER: That was it. That was it exactly.
BALDWIN: Elie -- Elie, go ahead.
ELIE HONIG, CNN LEGAL ANALYST: Yes, first of all, that testimony was truly ridiculous.
The same statement that Cedric noted, I noted: "I don't consider a prone restraint a use of force."
What that means is, in this witness' book, once someone is prone, lying flat on their face, you can do whatever you want, and it doesn't count, in his book, as a use of force. So, by that logic, Derek Chauvin could still be kneeling on George Floyd's neck today, and it would not count as a use of force, according to this witness. By that logic, you can back a police car over this person to hold them
in a prone position and it does not count as a use of force. He's using a ridiculous definition of use of force that has no bearing on the real world.
I can't wait to see the cross-exam here, by the way. And if I'm cross- examining this witness, I'm playing him that whole tape, the 9:29. And when George Floyd goes silent for four minutes, I'm going, still OK with you? And when George Floyd is motionless for three minutes, I'm saying, you OK with this?
And then I finally would ask him, you teach at the academy. He testified to that. Would you show this video of what Derek Chauvin did to George Floyd to the people you're training at the academy as something that is appropriate to do?
He's -- he can't answer that, because, if he says no, that answer -- I mean, that totally undermines Derek Chauvin's position. If he says yes, it's so ridiculous, he is going to lose all credibility with the jury.
BALDWIN: Wow. Wow.
Cedric, have you ever heard, of all your years, law enforcement being prone use of force -- not being use of force?
ALEXANDER: I have never -- you know, I have been in and out of the business for 40 years, Brooke, and I have never heard such a weak defense in my life.
And the prosecution's going to blow holes in all of those questions that were put before that -- before that witness. It is absolutely absurd. What we saw is what we saw. And it was exactly that, no matter how you try to rationalize it.
But here again, Chauvin is getting something that George Floyd did not get. He's getting his day in court. But that was a weak defense. And if that's what they got to look forward to, then so be it.
BALDWIN: Elie, how does this work. Let's just -- let's skip ahead a couple steps.
So, obviously, the defense is calling -- these are their witnesses they have chosen. I hear both of you all loud and clear on how you think of what this witnesses has testified.
Are we to assume it will get stronger for the defense? Or is this sort of what they got?
HONIG: So, so far, I'm looking at the defense -- and we are now on the sixth witness today for the defense. And I'm thinking, so what?
So far, to me, it's all, so what? All the things that the defense is banking on, we already know? And remember, Brooke, we have talked about this with Cedric and you. The prosecution, we talked about how they pull the sting...
HONIG: ... meaning, if there's bad facts, they put them out there in advance.
We're seeing why right now, because the defense is saying, well, George Floyd used drugs that day. Guess what? We already knew.
BALDWIN: We have already talked about it.
HONIG: The prosecution gave us every little detail of it. Guess what? George Floyd resisted at some point prior to the 9:29. We knew about that, too, so no surprises.
What the defense -- first of all, they need to start strong. They have not done that here. Sometimes, they sort of lay foundations and then make connections later.
But if that's what they're doing, I don't see what those connections are going to be.
BALDWIN: Cedric, did you want to jump in? I see you shaking your head.
I'm not an attorney. And, certainly, Elie is a very, very good one, who I have a great deal of respect for.
BALDWIN: He is. He is.
ALEXANDER: But I tell you, I don't know where defense is going with this.
And, quite frankly, I think this is going to be about as good as it gets. And that's coming from a layperson, because I don't see here where they can make a case with the witnesses even that they have put on -- put on the stand so far.
But they have a right to put on the stand whoever they choose to at this point. But I just can't see where they're going to make a case here.
BALDWIN: I'm just -- this is my out-loud musings, Elie.
And I know I have asked you this and I know your answer has been no, but I'm just wondering, at this point in time, do they put Derek Chauvin himself on the stand?
HONIG: Boy, I'm still on no.
BALDWIN: You are.
HONIG: I will give you the arguments for and against.
The argument for is, it's a Hail Mary. It's a heave to the end zone. You hope that one juror out of 12 feels sorry for him or connects with him and hangs this jury.
On the other hand, it is very, very risky. Look, I know, in TV and movies, the defendant always takes the stand. And it's always a very dramatic moment. In real life, it's quite rare for a defendant to take the stand.
Also, if you call Derek Chauvin to the stand, two things happen on his cross-examination. One, they bring in all of the prior complaints against Derek Chauvin, or at least some of them, for misconduct. And, two, you play that tape for him.
You make him own every second of that tape, right? He's been on George Floyd for six minutes. You're justified now? Three more minutes. He's not moving. He's not talking. He hasn't spoken in minutes. You're still on him here, right? You're still on here.
I don't see him surviving that cross-examination.
BALDWIN: Are we to assume, though, that there will be at least character witnesses, people speaking to the kind of human being he is?
HONIG: Yes, that can happen. The laws -- the rules of evidence do allow a defendant to call character witnesses to say he's known as a peaceable person, he's known as a truthful person.
But, again, those people are subject to cross-examination by prosecutors as well. So there's risk in that too. It does happen sometimes. We could see that here. We will see what they have to say and if it really impacts the jury at all.
BALDWIN: OK. And I'm just going to talk to the control room really quickly.
Robair (ph), are we in a break? This is not a sidebar. This is a very long side -- shall we go back then?
Let's go back then. Here we go.
STEVE SCHLEICHER, MINNESOTA PROSECUTOR: So, I'm understanding your testimony. You indicate as a fundamental proposition that the defendant's conduct of restraining Mr. Floyd in a prone position on the ground handcuffed was not a use of force?
BRODD: That's correct.
SCHLEICHER: And I believe, according to your testimony, it's because, in your opinion, that position is not likely to inflict pain. Is that correct?
BRODD: That is correct.
SCHLEICHER: Now, if it did in fact inflict pain upon Mr. Floyd, would that change your opinion?
BRODD: Only if the positioning of the body or if the officers were manipulating Mr. Floyd's hands in a way that would create pain.
Then, yes, I would say that would be use of force.
SCHLEICHER: So, my question is, if Mr. Floyd actually experienced pain, would that change your opinion? Would it be the use of force if pain was actually inflicted upon Mr. Floyd?
BRODD: If the pain was inflicted through the prone control, then, yes, I would say that was a use of force.
SCHLEICHER: And the prone control, as we're describing here, just that so we make sure we're talking about the same terms, would be placing Mr. Floyd on his stomach, correct?
SCHLEICHER: Face down?
SCHLEICHER: And, as applied here, on a hard surface, on the pavement, correct?
SCHLEICHER: And so if -- if we're talking about that as the prone -- you're calling it a prone control?
SCHLEICHER: May I use it interchangeably with prone restraint? Do you accept that term?
BRODD: I think they're the same.
So, I will refer to it as a prone restraint. Mr. Floyd is face-down, handcuffed behind the back, correct?
SCHLEICHER: And, at some point, the defendant is on top of him; is that right?
BRODD: I think he had his knee on him. I'm not sure if I would describe that as being on top of him.
SCHLEICHER: If I may publish to the witness Exhibit 17.
And so, as stated -- as shown here in Exhibit 17, you're able to see the exhibit; is that right? BRODD: Yes.
SCHLEICHER: All right. And you see that the defendant has his knee on top of Mr. Floyd; is that correct?
BRODD: I see his knee in the vicinity of the upper back and neck area.
SCHLEICHER: Is it on the top or bottom of Mr. Floyd?
BRODD: It's on his back, top being top of the head or...
SCHLEICHER: You tell me, is it on the top, the bottom, the side? Where is his knee?
BRODD: I see his knee on the upper spine and neck area.
SCHLEICHER: Is the upper spine then on the top?
BRODD: OK. We can use top.
SCHLEICHER: OK. You would agree with me then?
SCHLEICHER: And so the defendant is on top of Mr. Floyd?
BRODD: His knee is on top of Mr...
SCHLEICHER: And you can't see where his other knee is in this photograph; is that right?
BRODD: That's correct.
SCHLEICHER: But you have reviewed the body-worn camera footage, correct?
BRODD: I have.
SCHLEICHER: And you have looked at the other exhibits that have been submitted in this case, or no?
BRODD: Most of them.
And so you're aware that -- we're looking at here is the defendant's left knee on top of Mr. Floyd, correct?
SCHLEICHER: Are you aware at this point in time that the defendant's right knee is also on top of Mr. Floyd?
BRODD: I believe it was on his arm or to the side of his body.
SCHLEICHER: You believe it was on his arm? BRODD: Yes.
SCHLEICHER: On top of him, though, right?
And so, to answer my question, the defendant is on top of Mr. Floyd on Exhibit 17; is that right?
BRODD: Again, when I say on top, I think he's laying his complete body on top of Mr. Floyd.
What I see is the knee positions.
SCHLEICHER: OK. Both knees on top of Mr. Floyd?
And, also, are you aware that the defendant weighed approximately 140 pounds at the time this took place? Were you aware of that by your review of the records?
SCHLEICHER: And in your experience, does the clothing and equipment that the defendant is wearing in Exhibit 17, could that add some amount of weight to the defendant?
SCHLEICHER: And that would then increase the amount of pressure or force placed on Mr. Floyd at the time; is that right?
BRODD: It could.
And so looking, then, at Exhibit 17, and just starting with the fundamental premise of your testimony, that what we're seeing here is not a use of force, I need to ask you if you believe that it is unlikely that orienting yourself on top of a person on the pavement with both legs unlikely to produce pain?
BRODD: It could.
SCHLEICHER: What do you mean it could? Is it unlikely to produce pain or is it likely to produce pain?
BRODD: I'm saying it could produce pain.
SCHLEICHER: It could?
SCHLEICHER: And if it could produce pain then -- again, just looking at your premise, if it could produce pain, then it would be a use of force, wouldn't it?
BRODD: If the officer's intent was to inflict pain, that would be use of force.
SCHLEICHER: Not the officer's intent, sir. What you said is that it was unlikely to produce pain and that's why it wasn't a use of force.
You now just said that it could produce pain. And so, regardless of the officer's intent, if this act that we're looking at here in Exhibit 17 could produce pain, would you agree that what we're seeing here is a use of force?
BRODD: Showed in this picture, that could be a use of force.
If you would take that down, please.
And, sir, I'd like to talk to you a little bit about positional asphyxia, if I'm to understand your testimony about positional asphyxia.
This is something that you're familiar with; is that right?
SCHLEICHER: This is something that you have taught in courses to budding officers, I'm assuming, the dangers of positional asphyxia?
SCHLEICHER: And in positional asphyxia, is it true that positional asphyxia is the result of some oxygen deprivation; is that right?
SCHLEICHER: And that's the result of a chest cavity -- the inability for the lungs to expand. Fair?
SCHLEICHER: And the -- in positional asphyxia, as understood in law enforcement, can be the result of being -- having your chest, your body weight on the ground, right, in the prone position, your own body weight, the subject's own body weight?
BRODD: That could, yes.
SCHLEICHER: That could cause positional asphyxia, just the body weight itself? BRODD: If the person is extremely obese.
BRODD: If you or I were to lie with our hands cuffed behind our back on the ground, I don't think either one of us would be prone to positional asphyxia.
SCHLEICHER: Well, I will take that as a compliment, just for the purposes of argument here.
But there can be instances certainly in which a person, the nature of their own body weight, could experience positional asphyxia; true?
BRODD: It's possible.
And things that could further exacerbate or contribute to that could be the use of restraint, correct, handcuffs behind the back?
SCHLEICHER: And additional pressure as well. So, you being a not obese, fit person, right, if someone was pressing down on you, that would sort of take the place of excess body weight, and that could contribute to positional asphyxia. True?
BRODD: It's possible.
SCHLEICHER: And if the pressure -- obviously, the greater the pressure being exerted, the more of a potential danger of positional asphyxia. Fair?
SCHLEICHER: And the dangers of positional asphyxia due to being restrained in the prone position is a known risk; is that right?
SCHLEICHER: And it's something you know about. True?
SCHLEICHER: It's something you teach in your courses, correct, in training?
SCHLEICHER: And this is something -- you have been in law enforcement, did you say since 1972?
BRODD: For 79 years -- excuse me -- for 29 years.
SCHLEICHER: OK, 29 years. At what point did you become aware of the dangers associated with
BRODD: Probably late '80s.
SCHLEICHER: So, over 30 years that you have been aware of the dangers of positional asphyxia, right?
SCHLEICHER: And would you agree that that's something commonly understood in law enforcement, that this is a known risk?
SCHLEICHER: So this is not new information?
SCHLEICHER: And there are ways to mitigate against the risks of positional asphyxia that are known to law enforcement; is that right?
SCHLEICHER: And I think what you testified to is the side recovery position. Can you describe the side recovery position?
BRODD: So, when a suspect is handcuffed, you just pull them to their side and have them tuck their knees up, kind of like a fetal position almost.
SCHLEICHER: Like a fetal position.
And so you're -- you have also been a defensive tactics instructor, correct?
SCHLEICHER: And you have been certified as such, right?
SCHLEICHER: Are you aware of how one might put somebody in the side recovery position?
BRODD: It's fairly simple to do. Just pull them to their side.
Does it take a long time?
SCHLEICHER: So, it's simple. It's fairly quick. And in your opinion, it alleviates or could alleviate against the dangers of positional asphyxia. True?
SCHLEICHER: Now, I know that you reviewed various MPD policies in connection with your review of this case; is that right?
SCHLEICHER: And getting back to the issue of whether what we saw in Exhibit 17 at that particular time was a use of force, are you aware of how the Minneapolis Police Department defines force?
BRODD: Not specifically, no. I would have a general understanding of it.
SCHLEICHER: Generally, would you agree, or, based on your review, would you accept that the Minneapolis Police Department generally defines force to include restraint?
BRODD: It can.
SCHLEICHER: Particularly if it's a restraint that could result in some sort of injury or pain. Fair?
SCHLEICHER: And so you would agree, then, just as we are at this point in your testimony, that what we stay in Exhibit 17 would at least fit within the Minneapolis Police Department policy of use of force. Fair?
SCHLEICHER: And a reasonable police officer would adhere to the policies of their own department. True?
SCHLEICHER: In your analysis of how -- under the Graham factors, how you're going to go about a force review, you indicated that one of the things that you look at is the severity of the crime. True?
SCHLEICHER: And severity of the crime is something that would you agree the label of the crime, whether it's a misdemeanor or a gross misdemeanor in Minnesota or a felony, isn't as important as the underlying conduct involved in the crime?
BRODD: I agree.
SCHLEICHER: And so a felony level bad check may, from a use of force standpoint, be less serious than a misdemeanor domestic assault. Fair?
BRODD: So, by the nature of the terminology of the crime, I agree, but, obviously, a domestic assault is a serious and potentially violent environment. SCHLEICHER: And, really, maybe that was an inartful question, but
that's what I'm asking.
In this case, the misdemeanor, what's labeled as a misdemeanor, assault, would, from a use of force perspective, be more serious than, say, writing a bad check, but at a felony level?
BRODD: It could, yes.
SCHLEICHER: And you're aware that, in this case, the initial call that the officers were responding to was a counterfeiting allegation, or forgery allegation, passing a fake $20 bill, right?
SCHLEICHER: And could you agree that, in terms of the range of criminal offenses, this would be a fairly low level from a use of force perspective?
BRODD: Yes. But, again, as I mentioned earlier...
SCHLEICHER: Well, what I was asking is, if you could agree.
And I will give you a chance to explain if you want, but you would agree that, in terms of the range of different criminal offenses that are available, a counterfeit over an allege the fake $20 bill is on the less serious side?
SCHLEICHER: And I think what you probably were about to say is that that could change, right?
BRODD: And, again, it's all about the contact and the resistance of the suspect.
SCHLEICHER: Right, which is completely different than the seriousness of the underlying facts. That's why I stopped you. I didn't mean to be rude, but let's keep this in that analytical framework for now, seriousness of the offense, not the response, because we will get to that, the response of the subject.
SCHLEICHER: And would it -- would you say -- would you agree with me that the response of the subject, the activities of the subject to the officer on the scene, that's probably the operative, important facts here, right? That's what you need to look at?
SCHLEICHER: So, in terms of the seriousness of the crime, that's not as important.
Let's take a look at the imminence of the threat. You discussed imminence of the threat. Officers have to assess that; is that right?
SCHLEICHER: And could you please, for the jury, explain, in your words, what you mean by threat? What is a threat?
BRODD: You look at a person, and you can't see their hands. They have their hands in their pocket. That could be a threat that in their pocket is a gun.
You look at a person and the way they position their body, angle their body back into maybe a confrontational stance, that could be a threat.
SCHLEICHER: All right.
So, right now, I have my hands, both of my hands in my pocket, and I'm trying to be confrontational. I don't know if I look confrontational, but am I threat?
BRODD: If I was walking up to you on the street, and it's going to be reasonable suspicion that you have committed some type of criminal activity, I would, from a position of cover, ideally, tell you to take your hands out of your pockets.
SCHLEICHER: Would you agree there's a difference between a threat and a risk?
SCHLEICHER: And so really any person can present a risk, right?
SCHLEICHER: Someone could have their hands in their pocket and unexpectedly have a weapon. True?
SCHLEICHER: Or not?
BRODD: Or not.
SCHLEICHER: That's a risk.
But would you agree that a threat is when I would be doing something to show some sort of intention to cause you harm, balling up my fists, approaching you in an aggressive manner? That would be a threat, correct?
BRODD: Some type of cues, yes.
SCHLEICHER: And would you agree that officers are authorized to use force to respond to a threat?
SCHLEICHER: Officers are not authorized to use force to respond to a mere risk. Fair?
SCHLEICHER: So, there are many different factors that could be a risk vs. a threat. Someone who's large in stature, that could be a risk. True?
BRODD: It could.
SCHLEICHER: But that's not, in and of itself, a threat, is it?
SCHLEICHER: You can't use force on someone just because they're large. True?
BRODD: That's correct.
SCHLEICHER: The use of drugs or intoxicants, that could be a risk factor. True?
SCHLEICHER: And on that subject, with respect to what a reasonable officer understands about the use of drugs and alcohol, controlled substances, there's a whole range of drugs out there, right?
SCHLEICHER: And there's a whole range of drug users out there, correct?
SCHLEICHER: And there are some drugs that could cause someone to become aggressive. True?
SCHLEICHER: And there's some drugs that can cause the user to become somewhat sedate. True?
SCHLEICHER: And so just hearing that someone is -- quote -- "on something," that is not necessarily a threat to the officer, correct?
BRODD: Unless there's behavior that makes the officer believe that the person is drug-influenced.
SCHLEICHER: Agreed, if there's behavior. Behavior that they're drug- influenced or behavior they're going to be doing something threatening to the officer?
BRODD: I think...
SCHLEICHER: Because there's a difference, right?
BRODD: I'm sorry. I missed something.
SCHLEICHER: I'm sorry. There's a difference between someone manifesting behavior that they may be using drugs or manifesting a behavior that they're going to threaten you, right?
BRODD: Again, but the manifestation of the drug influence could pose a threat.
SCHLEICHER: OK. But, I mean, one manifestation of drug influence is that somebody's passed out, right?
SCHLEICHER: That probably does not constitute a threat to you, does it?
SCHLEICHER: That's more of a vulnerability of the person who's using the controlled substance, right?
SCHLEICHER: So if someone is -- quote -- "on something," in and of itself, that is not a justification to use force, true?
SCHLEICHER: And if the person who is on something is of large size, those two things combined, those two risks together combined, those don't justify the use of force, do they?
BRODD: No. There would need to be a third component that is the actions of the suspect.
SCHLEICHER: Right, the behavior of the subject, what they did. Fair?
SCHLEICHER: Also, just in terms of the decision of an officer to use force, that is driven by the behavior of the subject, correct?
SCHLEICHER: The decision to use force