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Prosecution Cross-Examines Use-Of-Force Expert in Chauvin Trial. Aired 3:30-4p ET

Aired April 13, 2021 - 15:30   ET

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


[15:30:00]

BARRY BRODD, USE-OF-FORCE EXPERT: Yes.

STEVE SCHLEICHER, PROSECUTING ATTORNEY: The decision to use force on a subject is not dependent upon what some third-party over whom the subject has no control and is not directing is doing, correct?

BRODD: I'm not sure if I understand the question.

SCHLEICHER: Let's say that you're distracted by something Mr. Nelson is doing. Let's say maybe he's even threatening you. That's not a justification for you to use force against me, is it?

BRODD: No.

SCHLEICHER: Because I certainly have no control over Mr. Nelson, right?

BRODD: Correct.

SCHLEICHER: All right. And so if there are, for example, in the instance of a bystander, if a bystander is doing something that an officer finds threatening or irritating or distracting or annoying, those activities don't justify a use-of-force against someone who is not directing those activities, fair?

BRODD: Yes.

SCHLEICHER: All right. It might explain the officer's state of mind in a particular moment, but it's not justification for the use-of-force, true?

BRODD: I agree.

SCHLEICHER: OK. You talked about situational awareness and situational awareness is something that is important for -- I think your testimony was anyone, and we can agree with that, right?

BRODD: Yes.

SCHLEICHER: But in particular situational awareness is something important for an officer, a reasonable officer to have, correct?

BRODD: Yes.

SCHLEICHER: And that situational awareness has to include really under Graham all the facts and circumstances, the totality of facts and circumstances that are presented to the officer at the time, true?

BRODD: Yes.

SCHLEICHER: And in looking particularly at the behavior of the person upon whom force is being applied, it's important that the officer is situationally aware of the condition of the subject, correct?

BRODD: Yes.

SCHLEICHER: Because if the subject does something aggressive, they may need to adjust their plan and use-of-force, correct? Their application.

BRODD: Yes.

SCHLEICHER: But if the subject is manifesting compliance or a medical condition, illness, the officer needs to be situationally aware of that as well, fair?

BRODD: Should.

SCHLEICHER: Do you agree and having read the training materials and you're aware of MPD policy and assuming you've listened to some of the testimony in this case as an expert, you're allowed to do that?

BRODD: I listened to two testimonies from the use-of-force experts.

SCHLEICHER: All right. Do you agree with the proposition that in law enforcement, once somebody is in your custody, they're in your care?

BRODD: I agree.

SCHLEICHER: And in fact, that's an MPD policy in training, in your custody, in your care, correct?

BRODD: Yes.

SCHLEICHER: And situational awareness then, would you agree, sir, includes being aware of the subject's medical condition?

BRODD: Yes.

SCHLEICHER: Particularly if they're exhibiting signs of distress?

BRODD: Yes.

SCHLEICHER: Loss of consciousness?

BRODD: Yes.

SCHLEICHER: Inability to breathe?

BRODD: Yes.

SCHLEICHER: Loss of pulse?

BRODD: Yes.

SCHLEICHER: All of these things a reasonable officer should take into consideration when determining whether to escalate force, de-escalate force or remain the same, correct?

BRODD: Yes.

SCHLEICHER: Now, would you agree, sir, the application of use-of-force must be reasonable at the start and at the end, true?

BRODD: I agree.

SCHLEICHER: And at all points in between?

BRODD: BRODD: Yes.

SCHLEICHER: And if there's ever a point at which the use-of-force becomes unreasonable, that it must stop?

BRODD: Or de-escalate.

SCHLEICHER: Or de-escalate. It must de-escalate a point of being reasonable, correct?

BRODD: Yes.

SCHLEICHER: Because that's really the standard, is that of reason- ability, right?

BRODD: Yes.

SCHLEICHER: And, you know, in terms of proportionality, you've read the materials, you've studied the MPD policies, you're familiar with the MPD defense tactics and control guide, the continuum, use-of-force continuum?

BRODD: Yes.

SCHLEICHER: OK. And you would agree that that continuum which we've all seen is a tool that an officer can use to make some kind of a rough approximation of what is proportional? A proportional response.

BRODD: Yes.

[15:35:00]

SCHLEICHER: You would agree based on your review of the Minneapolis Police Department policy that the sanctity of life and protection of the public, those are the cornerstones of Minneapolis Police Department's use-of-force policy, true? BRODD: Yes.

SCHLEICHER: In your review of the Minneapolis Police Department manual, use-of-force manual, you received a copy of the manual, I'm assuming?

BRODD: Use-of-force 5-300?

SCHLEICHER: That's correct. 5-300.

BRODD: Yes.

SCHLEICHER: In your study of Minneapolis use-of-force policy 5-300 series, did you see the phrase or term one-upmanship anywhere in this policy?

BRODD: No.

SCHLEICHER: So you would agree that one upmanship is not the cornerstone of the Minneapolis Police Department's use-of-force policy? It's protection of the public and sanctity of life, true?

BRODD: And I used the phrase one upmanship to describe how the standards of police training throughout the country are.

SCHLEICHER: You're using one-upmanship to describe concept of proportionality, true?

BRODD: Yes.

SCHLEICHER: And one-upmanship is -- this effects an accurate description of what you're trying to express as far as proportionality. Wouldn't that suggest -- I mean what is the limit to the one-upmanship that an officer can do?

BRODD: As I described earlier that if a person tries to strike you or kick you, that the officer doesn't have to respond with their own punches or kicks. They can respond with a better tool, which would be an impact weapon or a taser or pepper spray.

If the suspect were to grab hold of the officer's baton or taser, then the officer may find themselves in imminent threat and respond with potential deadly force.

SCHLEICHER: And I think the examples you used were strike you, stab you, shoot you were some examples you were talking about in terms of one-upmanship, but that wasn't the answer I was looking for. In terms of one-upmanship isn't what the officer is always limited in their response by the Graham versus Connor standards of reasonableness, right?

BRODD: True.

SCHLEICHER: So whatever step the officer takes to either escalate or de-escalate it must be objectively reasonable, correct? BRODD: I agree.

SCHLEICHER: And that's why someone who is not resisting, who is being compliant, that's why that person cannot have any force at all exerted against them, is that right?

BRODD: I would agree with that.

SCHLEICHER: If a person is not resisting and is not noncompliant, so let me phrase it better. Compliant, they're not -- an officer is not justified in using force if they're being complied with, true?

BRODD: So they would be using control if the suspect's in their custody.

SCHLEICHER: Right. And control, under your definition, like we're looking at just a pure control, that is a restraint that's not likely to inflict pain, correct?

BRODD: Yes.

SCHLEICHER: That's control. But you've agreed that Exhibit 17, what we saw here in this case was likely to produce pain, true?

BRODD: It could.

SCHLEICHER: And so if someone is not resisting and they're compliant, the use of something -- a control, as you put it, that could produce pain is just not justified, is it?

BRODD: No.

SCHLEICHER: And we talked about the use-of-force needing to be appropriate from reasonable from the beginning to end and all points in between, is that right?

BRODD: Yes.

SCHLEICHER: And the officer must reassess the situation, must reevaluate the situation, must be taking in information, is that right?

BRODD: Yes.

SCHLEICHER: And that can include information from the suspect, the person upon whom they're using control, correct?

BRODD: Yes.

SCHLEICHER: That could be information that they're getting from other sources. For example, fellow officers, true?

BRODD: Yes.

SCHLEICHER: If a fellow officer makes some comment or assessment as to the condition of the subject, a reasonable officer takes that into account, is that right?

BRODD: Should.

SCHLEICHER: And that information will be used to factor in to reassess the situation and determine whether or not force should be escalated, de-escalated or discontinued, fair?

BRODD: Yes.

SCHLEICHER: All right. And you would agree -- and we were talking about the threat assessment. You were talking about stabbing, striking, shooting. You agree that based upon your review of the evidence in this case, there was no stabbing attempt by Mr. Floyd, correct?

BRODD: Correct.

[15:40:00]

SCHLEICHER: He wasn't trying to shoot anyone, correct?

BRODD: Yes.

SCHLEICHER: All right. And we should talk about the specific circumstances here of what happened on May 25, 2020. Would you agree as a general premise that Mr. Floyd was handcuffed, restrained in the prone position for approximately 9 minutes and 29 seconds?

BRODD: Yes.

SCHLEICHER: And during that 9 minutes and 29 seconds did you note any significant difference in the manner in which Mr. Floyd was restrained?

BRODD: No.

SCHLEICHER: Did you note any differences in the manner in which Mr. Floyd was acting during that entire restraint period, from the first point to the 9:29? Did you notice any differences with him?

BRODD: Yes.

SCHLEICHER: For example, when he first was placed prone on the ground, he was speaking, correct?

BRODD: And actively resisting, yes.

SCHLEICHER: And actively resisting when he was proned?

BRODD: Yes.

SCHLEICHER: OK. How long did that take place?

BRODD: I'm not sure. I'd say a couple minutes.

SCHLEICHER: A couple minutes that he was actively resisting? BRODD: Yes. Struggling against the officers.

SCHLEICHER: OK. All right, well, let's talk about the point when Mr. Floyd -- when the restraint of Mr. Floyd first began. And I would like to show you a clip from Exhibit 127, which is a composite of the Kueng body-worn camera and the Frazier video. That's going to be starting at 20:19:09, which can we agree is around the beginning of the restraint period, based on your review?

BRODD: OK, I was looking for a screen. Sorry.

SCHLEICHER: I'm sorry.

BRODD: I missed that question.

SCHLEICHER: All right. The Kueng body-worn camera, OK, right around the time of 20:19:09, would you agree that this is right around the beginning of the restraint period?

BRODD: I'll have to go with your approximation on the time.

SCHLEICHER: And when we pull up the clip -- why don't you pull up the clip and publish it and hit pause right away. All right.

So you can see the notation on the top of the screen at 20:19:09.

BRODD: Yes.

SCHLEICHER: Would you agree that that's the beginning of the restraint period, towards the beginning of the restraint period? Do you agree?

BRODD: I'm not sure but I'll take your word for it.

SCHLEICHER: All right, why don't we just watch it and this going to go through 20:19:60.

(BEGIN VIDEO CLIP)

OFFICER: On the ground.

(George Floyd in pain)

(END VIDEO CLIP)

SCHLEICHER: And so right around 20:19:09, right, when we first saw the clip, Mr. Floyd was standing or kneeling by the squad car, true?

BRODD: Yes.

SCHLEICHER: And did you hear what Mr. Floyd said when he was kneeling at the squad car?

BRODD: Thank you or something to those lines.

SCHLEICHER: Now I want to back you up a little bit in terms of situational awareness. And you're aware that the defendant received many hours of paid training by the Minneapolis Police Department, correct?

BRODD: Yes.

SCHLEICHER: Right around 889 hours, correct?

BRODD: Sounds about right.

SCHLEICHER: Are you familiar with crisis intervention training and what that is?

BRODD: Yes.

SCHLEICHER: You're aware that the defendant took a 40-hour course in crisis intervention training?

BRODD: Yes.

SCHLEICHER: And that generally is education to make people aware of different impediments to compliance, such as mental illness or intoxication?

BRODD: Yes.

SCHLEICHER: Anxiety would fit in there, correct?

BRODD: Could.

SCHLEICHER: Perhaps claustrophobia?

BRODD: Could.

SCHLEICHER: All right. And when officer Chauvin, the defendant first approached the vehicle, and this was before Mr. Floyd went in, right, in the back, when he first got on the scene, through officer Chauvin's body-worn camera, you could hear Mr. Floyd saying he that had anxiety and claustrophobia, correct?

BRODD: Yes.

SCHLEICHER: And there was a struggle, and you observed the struggle in the back of the car when the officers forced Mr. Floyd in the back of the car, right?

BRODD: Yes.

SCHLEICHER: And then when he came out, he was kneeling right around the time we were looking, he was on his knees, he's handcuffed, right?

[15:45:00]

BRODD: Yes.

SCHLEICHER: And he says thank you, correct?

BRODD: Yes.

SCHLEICHER: And it was after that point that Mr. Floyd was then pushed over by the officers onto the ground, correct?

BRODD: Yes.

SCHLEICHER: And with the time he was pushed onto the ground, just taking note of his body position, when he was initially pushed onto the ground, would that have qualified as sort of a side recovery position?

BRODD: We would have to back it up. I'm not sure how long he was in that position.

(BEGIN VIDEO CLIP)

OFFICER: On the ground.

(Floyd in pain)

(END VIDEO CLIP)

SCHLEICHER: And so -- were you able to see that?

BRODD: I was.

SCHLEICHER: All right. So when Mr. Floyd was initially brought from his handcuffed position on his knees to the ground, he was in effectively a side recovery position, fair?

BRODD: Momentarily, yes.

SCHLEICHER: And then he was taken out of the side recovery position by the officers and then after that point, placed in the prone position, true?

BRODD: Yes.

SCHLEICHER: And so right after this clip runs, we see Mr. Floyd in the prone position, correct?

BRODD: Yes.

SCHLEICHER: Face down on the ground, handcuffed, true?

BRODD: Yes.

SCHLEICHER: And the defendant and officer Kueng and officer Lane and thereafter all took part in restraining Mr. Floyd in the prone position on the ground, based on your review, correct?

BRODD: Yes.

SCHLEICHER: And you were able to see then from Exhibit 17 that the defendant had one knee at least on Mr. Floyd's body, on his neck, the neck/back area, correct?

BRODD: Yes.

SCHLEICHER: On top. And you could see that he had his other knee also, I believe you said, near his arm, but it was on his back, correct?

BRODD: I really couldn't tell from that picture. I took that from the snapshots of the body-worn cameras.

SCHLEICHER: Now, and so when you say that you're agreeing that the defendant was on Mr. Floyd's neck and back, at least at some portions of the restraint, fair?

BRODD: I would say upper back in the proximity of the neck and then his right knee was towards more of his rib cage.

SCHLEICHER: On top of him, though, correct?

BRODD: Yes.

SCHLEICHER: Adding to the pressure, fair?

BRODD: Could.

SCHLEICHER: And sir, I'd like to show you just for a little more clarification Exhibit 240, which has been received into evidence and this might provide a better view.

OK. And so you testified just a moment ago that you thought that the defendant's knee was where?

BRODD: Upper back and neck.

SCHLEICHER: And so would you agree, I'm placing a circle, would that be Mr. Floyd's back, upper back?

BRODD: That would be his upper back.

SCHLEICHER: OK. And I'll just place another circle. That's the defendant's knee?

BRODD: It is.

SCHLEICHER: His left knee. That's above the area you identified as Mr. Floyd's upper back, isn't it?

BRODD: Yes.

SCHLEICHER: His left knee is on Mr. Floyd's neck in this picture, in Exhibit 240, isn't it?

BRODD: In this picture, yes.

SCHLEICHER: OK. Now I'd like to talk about his right knee. And you can see Mr. Floyd's arm where I'm drawing, correct?

BRODD: Yes.

SCHLEICHER: And you can see the handcuffs, correct?

BRODD: Yes. SCHLEICHER: OK. And this is the defendant's right knee, correct?

BRODD: Yes.

SCHLEICHER: Would you agree that the defendant's right knee is on the defendant -- is on Mr. Floyd's lower back?

BRODD: Looks like it's on his shoulder blade area to me.

SCHLEICHER: OK. So the shoulder blade area -- would you clear that, your Honor? I seem to have trouble here. I appreciate that. So the shoulder blade area, then I guess that would be Mr. Floyd's upper back?

BRODD: Yes.

SCHLEICHER: OK. So you would agree based on Exhibit 240 that the defendant is on -- on his left knee is on Mr. Floyd's neck, his right knee is on Mr. Floyd's back, correct?

BRODD: Yes.

SCHLEICHER: And I believe your testimony earlier was that you've watched the entirety of this body-worn camera videos, true?

BRODD: Yes.

SCHLEICHER: And you would agree with me that there's a wealth of body- worn camera video footage in this case, true?

[15:50:00]

BRODD: Yes.

SCHLEICHER: And milestone video and surveillance video and bystander video, correct?

BRODD: Yes.

SCHLEICHER: So you're able to view as an expert, you know, the conduct here from multiple angles, true?

BRODD: Yes.

SCHLEICHER: And so with that sort of, I guess, redundancy built into the record, does that alleviate some of the concerns or considerations that I think you were testifying to on your direct examination regarding how cameras react to light?

BRODD: Yes.

SCHLEICHER: OK. So this Exhibit 240 is actually an image taken -- you can see it's at 20:19:37, that's about 13 seconds after the defendant placed Mr. Floyd in this prone position. Do you agree?

BRODD: He was one of the three that put him in the prone. SCHLEICHER: Sure, after -- and so we'll say after the defendant and

the two other officers put Mr. Floyd in the prone position restraint on the ground, correct?

BRODD: Yes.

SCHLEICHER: All right, and then the first video that we played would demonstrate then that this restraint that we're talking about, which you said was a controlled restraint or what was the term you used?

BRODD: Prone control.

SCHLEICHER: Prone control, that began around 20:19:14, fair?

BRODD: OK.

SCHLEICHER: OK. And I believe you testified that from the beginning to the end you did not see the defendant's relative position on Mr. Floyd's body meaningfully change, did you?

BRODD: Can you rephrase the question.

SCHLEICHER: Did the defendant get up from the point in which the prone restraint began and the prone restraint ended?

BRODD: Did he get up?

SCHLEICHER: Did he get up?

BRODD: No.

SCHLEICHER: Did he let up off of him any pressure?

BRODD: It appears that his body position changed, and he was putting more weight over his calves as the restraint continued.

SCHLEICHER: And are you able to identify it based on your own review, because I know that you've looked at this, correct?

BRODD: Yes.

SCHLEICHER: And I'm assuming that you've looked at it a lot in preparation for testimony today, correct?

BRODD: Yes.

SCHLEICHER: Are you able to point to any particular portion of the video record in which you say that the defendant shifted his weight more towards his calves to take pressure off?

BRODD: I would have to see the 14 body camera snapshots, and then we can focus on those.

SCHLEICHER: OK. Sir, I'm going to show you another portion of the body-worn camera video and that's going to be at -- it's been received as Exhibit 127. It's a composite of Kueng's body-worn camera and the Frazier video.

We're going to start at 20:23:11.

It should be Exhibit 127, it should be a composite of Kueng and the Frazier video.

And we should be -- starting at 20:23 -- this starts at 20:23:10. If you play this portion, please.

(BEGIN VIDEO CLIP)

(Floyd in pain)

FLOYD: I don't feel good. I don't feel good.

UNIDENTIFIED FEMALE: How long are you going to hold him down?

FLOYD: Stop. I can't breathe. Uh, uh.

(END VIDEO CLIP)

SCHLEICHER: And then just having reviewed that video I would like to show you what's been marked as demonstrative Exhibit 947, 947.

All right. So in demonstrative Exhibit 947 it's just a still frame captured from composite, I guess, or the Exhibit 15 which has been received into evidence, at the time is not military time but it's 8:23:14 and this is roughly corresponding with the clip that I just showed you.

[15:55:00]

Can you show -- do you see the defendant's -- the foot on his left leg?

BRODD: Yes.

SCHLEICHER: OK. And you can see how it's slightly off the ground?

BRODD: Yes.

SCHLEICHER: Now you would agree that, you know, given the orientation of the defendant's foot at this particular moment in time, there would be more pressure placed on Mr. Floyd's neck and back, true?

BRODD: It's possible.

SCHLEICHER: Well it's more than possible, isn't it? I mean --

BRODD: So the reason why I say possible is that Mr. Floyd's movements could have in that moment taken Mr. Chauvin's foot off the ground.

SCHLEICHER: Let's take a look at that clip that we just watched again, please.

(BEGIN VIDEO CLIP) Floyd: Uh, uh, I don't feel good. I don't feel good.

UNIDENTIFIED FEMALE: How long are you going to hold him down?

FLOYD: I can't breathe. Uh, uh.

(END VIDEO CLIP)

SCHLEICHER: Are those the movements that you're talking about that could have moved his foot up?

BRODD: Yes, and I saw the officer reach out for a low balance by supporting his left hand up against the back of the squad card.

SCHLEICHER: And the balance issue, is it important because when, you know, when you place yourself with both knees on a person that's not a very good balance point, is it?

BRODD: It depends.

SCHLEICHER: Well, apparently it wasn't here if the defendant was trying to balance himself against the car, correct?

BRODD: Or he's just responding to Mr. Floyd's movements.

SCHLEICHER: As you saw in the portion that you looked at, the defendant's body weight was not being supported by his foot because his foot was off the ground, correct?

BRODD: At that moment that that picture was taken, yes.

SCHLEICHER: And that would increase the pressure on Mr. Floyd whether he was moving or not?

BRODD: Like I said earlier that could be in response to his movement.

SCHLEICHER: Whether it's in response to his movement or not, the question is would it increase the pressure? Would it increase the pressure?

BRODD: I don't know.

SCHLEICHER: All right. We've discussed a little bit about the defendant's initial abuse of force to restrain Mr. Floyd, right?

And I would like to discuss now what happens next as you've analyzed all of these videos but it's important that we get the full scope of your opinion here, so we're going to go back to Exhibit 127 and begin at clip 20:19:23.

And if you can start playing now.

(BEGIN VIDEO CLIP)

FLOYD: I can't breathe. I can't breathe.

OFFICER: Program that.

OFFICER: Can't you get him?

OFFICER: Jesus Christ.

FLOYD: I can't breathe. I can't breathe.

OFFICER: Thank you.

FLOYD: I can't breathe.

OFFICER: Stop moving.

(END VIDEO CLIP)

SCHLEICHER: Thank you.

So during that segment, that was nine seconds -- the beginning it was about nine seconds after Mr. Floyd was placed in the prone position. Would you agree?

BRODD: Yes.

SCHLEICHER: And during that period of time you heard Mr. Floyd say multiple times I can't breathe, true?

BRODD: Yes.

SCHLEICHER: Did you count how many times?

BRODD: No.

SCHLEICHER: I counted six. Would you have any reason to dispute that?

BRODD: No.

SCHLEICHER: And obviously, the defendant would know, a reasonable officer would know that this prone position could present a danger of positional asphyxia, true?

BRODD: It's potential.

SCHLEICHER: And that it's important then in terms of situational awareness to not only be aware of that training and prior knowledge but to pay attention to what the subject is saying, correct?

BRODD: Yes.

SCHLEICHER: And the subject here is saying multiple times, I can't breathe, correct?

BRODD: It's correct.

SCHLEICHER: Now, I think your testimony earlier ...

BROOKE BALDWIN, CNN HOST: You have been watching this back and forth. This is defense witness. The prosecution trying to poke as many holes in his testimony as humanly possible.

Thank you so much for being with me these last two hours. I'm Brooke Baldwin here in New York. Let's go to Washington now. THE LEAD with Jake Tapper starts right now.

END