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Defense Gives Closing Arguments in Chauvin Murder Trial. Aired 1:30-2p ET

Aired April 19, 2021 - 13:30   ET

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


[13:30:00]

ERIC NELSON, DEFENSE ATTORNEY: These are the tactics that have been employed by the Minneapolis Police Department for 15 years.

Why? Because it's safer for the officers and it's safer for the suspects. It keeps people contained, controlled, and confined until they no longer are resistant.

A reasonable police officer would also consider his department's policies, including the use of nondeadly force policy. Force that does not have the reasonable likelihood of causing or creating a substantial risk of death or great bodily harm.

This includes but is not limited to physically subduing, controlling, capturing, restraining, or physically managing a person.

This is the policy, 5-302, of the Minneapolis Police Department, that nondeadly force can be used to physically manage a person.

And again, every single person has agreed that the use of force up to this point is reasonable, lawful, and meets the reasonable officer standard.

And so we get into the nine minutes and 29 seconds at this point. The state has really focused on the nine minutes and 29 seconds. Nine minutes and 29 seconds. Nine minutes and 29 seconds.

It's not the proper analysis. Because the nine minutes and 29 seconds ignores the previous 16 minutes and 59 seconds. It completely disregards it.

It says in that moment, at that point, nothing else that happened before should be taken into consideration by a reasonable police officer.

It tries to reframe the issue of what a reasonable police officer would do.

A reasonable police officer would, in fact, take into consideration the previous 16 minutes and 59 seconds. Their experience with the subject, the struggle that they had, the

comparison of the words to actions, it all comes into play.

Why? Because human behavior is unpredictable. Human behavior is unpredictable. And nobody knows it better than a police officer.

Someone can be compliant one second and fighting the next. Someone can be fighting and then compliant. Nobody knows it better.

But reasonable police officers continue to assess and reevaluate. This is the critical decision-making policy, right, or model.

You gather information, you assess the threat versus the risk, do we have an authority to act, what are our goals and actions, review and assess and start over.

This is not a singular cycle. This is a cycle that humans -- as humans, we literally make millions of decisions in a day, right. Do I go this way or that way or up or down? We are constantly doing this. This is just human behavior.

But in the policing context, you have to gather the information, assess the risk, assess the threat, do I have authority to act, what are my goals and actions. Review and assess. It's constantly rotating.

At the precise moment that Mr. Floyd was laid on the ground, a reasonable police officer would know about those previous 17 minutes. A reasonable police officer would know about the struggle.

A reasonable police officer would consider the suspect's reactions to the previous use of force. A reasonable police officer would continue this process of reassessment.

And a reasonable police officer would consider whether to use an additional force to overcome the suspect's level of resistance. Right? So nine minutes and 29 seconds.

(BEGIN VIDEO CLIP)

UNIDENTIFIED POLICE OFFICER: I appreciate that, I do. You got your --

GEORGE FLOYD, DIED WHILE IN POLICE CUSTODY: I can't breathe.

(CROSSTALK)

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

UNIDENTIFIED POLICE OFFICER: Jesus Christ.

FLOYD: I can't breathe.

UNIDENTIFIED POLICE OFFICER: Thank you.

(CROSSTALK)

[13:35:04] UNIDENTIFIED POLICE OFFICER: Stop moving.

FLOYD: Mama, Mama.

(END VIDEO CLIP)

NELSON: Continuing to assess the risk and the threat. The first 29 seconds, 20 seconds, continued resistance is a reasonable police officer would interpret that to be. Jesus Christ. The kicking.

A reasonable police officer would consider should we elevate the use of force as we meet this threat. And that's precisely what these officers did. They discussed using the MRT, the hobble.

(BEGIN VIDEO CLIP)

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: Doing a lot of talking.

FLOYD: Mama, I love you. I can't do nothing.

UNIDENTIFIED POLICE OFFICER: They're on their way.

FLOYD: My face is --

UNIDENTIFIED POLICE OFFICER: Do you want to hobble at this point then?

(CROSSTALK)

FLOYD: I can't breathe, man.

UNIDENTIFIED POLICE OFFICER: All right.

FLOYD: Please, let me stand. Please, man. I can't breathe.

(END VIDEO CLIP)

NELSON: They're discussing should we use the hobble, should we elevate our use of force?

A reasonable officer would continue to evaluate whether the suspect is under the influence. Precisely what these officers did in this nine minutes and 29 seconds.

(BEGIN VIDEO CLIP)

UNIDENTIFIED POLICE OFFICER: Person on the car --

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: I believe so. We found a pipe.

FLOYD: Please. Please.

UNIDENTIFIED POLICE OFFICER: Two other people with him. FLOYD: I can't man. Please. Mama. Mama. I can't.

UNIDENTIFIED POLICE OFFICER: Was that the -- the --

(CROSSTALK)

FLOYD: My knees. I can't breathe. Please.

(CROSSTALK)

FLOYD: Mama. Mama. My neck. (INAUDIBLE)

(CROSSTALK)

FLOYD: I'm through. I'm through.

(END VIDEO CLIP)

NELSON: So reasonable police officers discuss the scene. The first clip, they're talking about the two other people that are over at the car. Right?

What's going on here? What are we dealing with? Is this person under the influence of a controlled substance? These are the actions of a reasonable police officer.

A reasonable police officer would rely on this training and experience.

Call EMS. Possibility that a suspect who was struggling with us will begin to struggle again. You've heard this testimony from multiple police officers.

The risk that the suspect would present to himself if he's not continued to be controlled. And the risk that suspect presents to other officers or citizens if not continued to be controlled. If he's not continued to be controlled. Right?

These are things that all of the police officers have testified about. These are what a reasonable police officer should do.

A reasonable police officer in this situation would call EMS. At 20:20:11, 8/2011, within a minute of the struggle, EMS code 2 for a mouth injury.

Because they are not observing life threatening -- a reasonable officer is not observing life-threatening injuries at this point. They just fought with a man for a minute. He continued to kick at them when they got him on the ground.

They see he's got a mouth injury. We need EMS. So a reasonable police officer would evaluate the injuries of the suspect, compare words and actions, and respond by calling EMS. Nonemergency.

But again, reasonable police officers evaluate, reevaluate.

At 20:21, 8/21, one minute and 24 seconds later, we need EMS here faster. Code 3. At 3:30, we need him here faster.

And a reasonable police officer would take into consideration the anticipated time of an emergent response.

You heard from Genevieve Hansen, there's a firehouse a few blocks away and she would have expected EMS to be there within minutes. Three minutes, is what she said.

A reasonable police officer, based on his training and experience, is going to have and take that into consideration.

[13:40:07]

I put this person in a prone position on the ground, I'm holding them for my safety and their safety, I'm expecting someone to be here within three minutes to help this person. I have called for that help.

A reasonable police officer will take into consideration, again, his training, his experience, right?

Lieutenant Mercil talked about, and many people talked about, many of the officers talked about how it is not uncommon for suspects to feign or pretend to have a medical emergency to avoid being arrested.

Unfortunately, that is the reality. Nobody likes to get arrested. Reasonable police officers know that.

How many times does someone -- oh, my heart hurts or I'm having a medical emergency? Insert whatever emergency. Right? Simply because they don't want to go to jail.

A reasonable police officer will take his training into experience.

You heard Lieutenant Mercil specifically say that when someone says that they can't breathe, but they are talking, if they're talking, it means they're breathing. Right? If they're talking, it means they're breathing.

And again, compare that to the testimony of Dr. Tobin, who told you that same thing. That is true, if you are talking, you are breathing. It doesn't mean effectively.

And Doctor Tobin described how even medical doctors have problems sometimes assessing the legitimacy of a patient's needs relevant to their respiratory processes because they're saying I can't breathe and some doctors confuse it for just anxiety or this or that.

So if medical doctors make these mistakes -- Dr. Tobin told you it provides a false sense of security, right?

Lieutenant Mercil told you that that is what is said among police officers. He's the trainer.

So how many times do we hear an officer say, based on his training and experience, if you can breathe, you can talk. If you can talk, you can breathe. I counted seven. (BEGIN VIDEO CLIP)

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

UNIDENTIFIED POLICE OFFICER: You're talking. Sit down.

UNIDENTIFIED POLICE OFFICER: Right.

(CROSSTALK)

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

UNIDENTIFIED POLICE OFFICER: You're talking and -

(SHOUTING)

UNIDENTIFIED POLICE OFFICER: -- oxygen --

(CROSSTALK)

FLOYD: I can't breathe.

UNIDENTIFIED POLICE OFFICER: You're doing a lot of --

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: Relax.

FLOYD: I can't breathe.

UNIDENTIFIED POLICE OFFICER: You're doing fine. You're talking fine.

UNIDENTIFIED POLICE OFFICER: Deep breaths.

FLOYD: I can't breathe.

FLOYD: Please. Please. I can't breathe, officer.

UNIDENTIFIED POLICE OFFICER: You're talking.

(SHOUTING)

UNIDENTIFIED POLICE OFFICER: Takes a heck of a lot of oxygen to --

(CROSSTALK)

FLOYD: I can't breathe.

(END VIDEO CLIP)

NELSON: Reasonable police officers, again, are trained and take into consideration a person's actions relevant to their words. Their training, their experience. Takes a lot of oxygen to talk. Takes a lot of oxygen. You're breathing fine if you can talk.

(BEGIN VIDEO CLIP) FLOYD: I can't breathe.

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: He's talking he's fine.

UNIDENTIFIED POLICE OFFICER: Put him in the car.

UNIDENTIFIED POLICE OFFICER: We tried that for 10 minutes.

UNIDENTIFIED POLICE OFFICER: You know that --

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: He's talking. He's fine.

DONALD WILLIAMS, WITNESS: Bro, he ain't.

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: We're done.

(CROSSTALK)

(END VIDEO CLIP)

NELSON: Reasonable police officers will take into consideration their training and experience on excited delirium and analyze it within the context of this case.

(BEGIN VIDEO CLIP)

UNIDENTIFIED POLICE OFFICER: On the side.

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: I worry about the excited or delirium or whatever.

(CROSSTALK)

(END VIDEO CLIP)

[13:45:01]

NELSON: I worry about the excited or delirium or whatever. That's why we have EMS coming. It's not just, leave him here. It's, we have EMS coming. And this is why we have EMS coming.

Reasonable police officers throughout the course of a control technique will continue to assess the level of resistance.

Remember what sergeant -- excuse me -- Lieutenant Johnny Mercil said. Simply because a person isn't kicking at you or punching at you or biting at you, it does not mean that you can't control them physically with your body weight. This is at 8:24.

(BEGIN VIDEO CLIP)

UNIDENTIFIED POLICE OFFICER: Get him off the ground --

(CROSSTALK)

DONALD WILLIAMS, WITNESS: Enjoying that. Enjoying that right now, bro. You could have put him in the car by now.

UNIDENTIFIED POLICE OFFICER: Is he talking now?

UNIDENTIFIED WITNESS: Look at him. His body language is faint.

(CROSSTALK)

(END VIDEO CLIP)

NELSON: This is the point where Dr. Tobin testified that Mr. Floyd had an anoxic seizure. Right?

But it's not -- we're not analyzing the use of force from a perspective of a doctor with 46 years of medical experience, who had 150 hours of time to watch an event from multiple perspectives over and over and over again.

It's reasonable police officer's standard. How would a reasonable police officer interpret this? Does a reasonable police officer even know what an anoxic seizure is?

A reasonable police officer will interpret this as at least some form of minimal resistance.

Reasonable police officers, again, are continuing to monitor. They're expecting EMS to arrive.

(BEGIN VIDEO CLIP)

UNIDENTIFIED WITNESS: -- right now. Get him off the ground, bro. Get him off the ground.

(CROSSTALK)

UNIDENTIFIED WITNESS: He enjoying that. He's enjoying that right now, bro. You could have put him in the car by now. He's not resisting arrest.

UNIDENTIFIED POLICE OFFICER: Is he talking now?

UNIDENTIFIED WITNESS: Look at you. Your body language explains.

(END VIDEO CLIP)

NELSON: Nondeadly force is included -- includes but is not limited to physically subduing, controlling, capturing, restraining, or physically managing a person.

These are the policies of the Minneapolis Police Department.

Reasonable police officers, again, continued to monitor, see if he's breathing.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Pass out.

UNIDENTIFIED POLICE OFFICER: I think he's passed out.

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: Breathing right now. You think that's --

(CROSSTALK)

911 DISPATCHER: All available to start 2313 Washington Street.

UNIDENTIFIED POLICE OFFICER: Yes. I mean -- he might be a little stressed. He'll survive.

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: I think he's passing out but he's breathing, right? Anoxic seizure.

(CROSSTALK)

UNIDENTIFIED WITNESS: Bro. Bro.

(END VIDEO CLIP)

NELSON: Reasonable police officers are building and basing their decisions based on all of these factors coming in at multiple times.

Including the bystanders. Right? Call them a crowd, call them onlookers, call them bystanders. It doesn't matter what term you use for the people that gather to watch what police do.

Reasonable police officers are cognizant of and aware of their surroundings.

And before I really kind of start talking about the crowd in some limited detail, I have thought a lot during the course of this trial about the difference between perspective and perception.

Perspective and perception are two distinct concepts. Perspective is the angle at which you see something. It's your perspective. Perception is how you interpret what it is that you see.

[13:49:59]

I've thought about this a lot during the course of this trial because this situation here in the courtroom is incredibly unique, right? It's not the normal set up for a jury trial.

So my perspective through the course of this trial, sitting in in chair, is that I cannot see four of the jurors. Very limited opportunity to observe the jurors. Any they probably can't see me either.

Several of the jurors I have a very good view of. Four of the jurors, I don't. And obstructed views of others.

My perspective, sitting in this chair, when witnesses -- there's a camera blocking the head.

So in order for me to see the witness, I have to roll all the way over to the other side. Then I have to look through the plexiglass that has large reflecting lights.

Things block your perspective. Things can affect your perspective.

But your perception is how you interpret what it is you see and what it is you experience. And that is our life, right? This is our experiences. These are the things that make us who we are.

Three people in in trial went to the same high school. Me, Darnella Frazier and Chief Arradondo went to the high school at different times. We all went to the same high school, obviously, at different times.

My experience, Chief Arradondo's experience, Darnella Frazier's experience, all based on -- we had the same perspective, sat in the same classrooms, saw the same chalk boards or white boards, the same perspective. But our perception of experience there is going to be much different.

Ultimately, at the end of the case, when we're done with the arguments, the court will instruct you on how to deal with these biases and the perception issues.

The court's final instructions will guide you to try to recognize your biases, recognize them in what we bring to the table, and analyze the evidence from the perspective of the evidence itself.

Let's look at this incident on May 25th from the perspectives and perceptions of simply just four bystanders.

Charles McMillian, 61 years old, third-grade education. Grew up in the south. He described himself as a curious guy. He likes to know what's going on in his neighborhood. So he stops, and he checks things out, right?

His perspective -- he is the first one who was dealing with these guys. He has more information because he sees the entirety of the situation. But his perception of the event is affected by his life's experiences.

At the end of the night, ultimately, what he said to Officer Chauvin was, "I hope you get home safely." Because that's what he says to police officers every night.

(BEGIN VIDEO CLIP)

911 DISPATCHER: The fire department is with you. They are still with you.

UNIDENTIFIED POLICE OFFICER: All right. That's one person's opinion.

(CROSSTALK)

UNIDENTIFIED POLICE OFFICER: Control this guy. He is an excitable guy.

MCMILLIAN: Yes.

UNIDENTIFIED POLICE OFFICER: He's probably on something.

(CROSSTALK)

CHARLES MCMILLIAN, WITNESS: I have a respect. You have a good night.

(SIRENS)

(END VIDEO CLIP)

NELSON: Darnella Frazier. She is a 17-year-old high school student who, upon seeing the restraint of George Floyd, her response was to pull out the cell phone, start recording, and subsequently upload it to Facebook, right?

Her perception of the event and her perspective of the event. She is looking. She didn't even know that Officers Lane and Kueng were there because her perspective was blocked by the squad car.

But her perception -- her response to the situation was to record it. And that's perfectly fine. She began her recording at 8:20 and 51 seconds.

Donald Williams. He is a 33-year-old professional mixed martial artist, who arrived at 8:22 and 39. He spent the day fishing with his son, stopping for a drink when he became of the incident.

He described his view of this based upon his perception as a mixed martial artist. All right? He has a set of experiences that caused him to react in a different way.

[13:55:07]

What he perceived was happening was that Mr. Floyd was being choked with a blood choke.

I think we're past this at this point. The paramedic, reached in, touched the carotid artery. To have a person with a choke requires the blockage of both carotid arteries.

This was not a neck restraint. This was not a chokehold.

He was upset. And that, again, is OK, because his perception affected what he was seeing.

Genevieve Hansen, 27-year-old female firefighter for the city of Minneapolis. She testified that when she walked into the scene she described the crowd as upset. She said, "I walked into an upset crowd."

She said that the other voices distracted me from getting the officers' attention.

And she testified, again, based on her perspective, that Officer Chauvin appeared to have his hand in his pocket.

She observed what she believed to be blood on the -- from Mr. Floyd's face being pressed into the pavement. She observed fluid coming from Mr. Floyd's body that she presumed to be urine.

She testified that nobody ever told her that EMS or an ambulance was on the way.

She asked -- when I asked her about the response time she would have expected, three minutes. When I told her that paramedics had been called about five minutes prior to her arriving on scene, "no way," because her perception is three minutes.

But when you look at the things that Ms. Hansen saw, whether from her perspective or perception, there can always be more to the story.

The blood coming from Mr. Floyd's nose was why they called EMS in the first place. You have seen the pictures. He injured his nose during the struggle -- or face during the struggle in the squad car.

The fluid that she described as potentially being urine, we know that that's fluid coming from the undercarriage of the squad car.

(BEGIN VIDEO CLIP)

(INAUDIBLE)

FLOYD: I can't breathe.

(END VIDEO CLIP)

NELSON: Officer Chauvin specifically told her an ambulance was coming when she first came on scene.

(BEGIN VIDEO CLIP)

(CROSSTALK)

DEREK CHAUVIN, FORMER MINNEAPOLIS POLICE OFFICER: We need to you keep some distance. No, no.

Yes, we have an ambulance coming.

(CROSSTALK)

NELSON: Yes, we got an ambulance coming.

The computer dispatch reports clearly show what time EMS was called. So Genevieve Hansen has a perspective and a perception. And what she observed was not consistent with the actual evidence.

But remember, we don't look at this incident from the perspective of a bystander. We do not look at this incident from the perspective of the people who were upset by it.

We look it at from the perspective of a reasonable police officer. A reasonable police officer, when confronted with these bystanders, would know everything that will occurred up to that point.

Twenty minutes, 25 minutes, 30 minutes. They know all of that information. The bystanders do not.

A reasonable police officer would understand that his actions were actually being recorded.

Take the bystanders out of it. Officer wear cameras for a very specific reason, to record their actions, so they know they're being recorded.

Officers are aware of the placement of city cameras. You're in a high- retail -- you've got gas stations, restaurants, convenience store, high surveillance, right? Reasonable police officers know this.

They would know if citizens take out their cell phones and start filming.

This is the point, at 8:20 and 49 seconds, when Miss Frazier starts recording.

Reasonable police officers are aware, when they are using force, that sometimes what they are doing does not look good to the general public.

[14:00:05]

A reasonable police officer will hear the frustration growing, right?