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

Aired April 19, 2021 - 14:00   ET



ERIC NELSON, DEFENSE ATTORNEY: A reasonable police officer will hear the frustration growing. A reasonable police officer will hear the increase in the volume of the voices. A reasonable police officer will hear the name-calling, right, chump, whatever names are being called. They hear cursing. They'll hear this and they take that into their consideration. A reasonable police officer will rely on his recent training.

A reasonable police officer will hear what -- I'll come back to the training. The reasonable police officer will hear what the crowd is saying. He will compare his actions to what they are saying. And he will determine -- I know I'm being recorded, right? I know I'm being recorded. They're saying that I'm doing something that's awful looking. Am I doing this?

You can see Officer Chauvin's body language tells us a lot, right? That's what we just heard, looking down, looking up, looking around, looking down, looking over, looking around. He is comparing -- a reasonable police officer is doing what a reasonable police officer would do. He is comparing his actions, his own actions in response to what the crowd is saying.

A reasonable police officer, again, will rely on his training, 2020, March of 2020, tactics of a crowd. Never underestimate a crowd's potential. Most crowds are compliant. Crowds are very dynamic creatures and can change rapidly. Crowd may contain elements of several types of groups.

Now, I acknowledge that this is in dealing with massive crowds, protests and things of that nature. These are the tactics, but you never underestimate a crowd's potential because a reasonable police officer has to be aware and alert to his surroundings.

A reasonable police officer will consider his department's policies on crisis. And what is defined as a crisis? Crisis, an event or situation where an individual's safety and health are threatened by behavioral challenges to include mental illness, developmental disability, substance abuse or overwhelming stressors.

A crisis can involve an individual's perception or experience of an event or situation as an intolerable difficulty that exceeds the individual's current resources and coping mechanism, and may include unusual stress in his or her life that renders him or her to unable to function as he or she normally would. The crisis may not -- may but may not necessarily result in an upward trajectory or intensity culminating in thoughts or acts that are possibly dangerous to himself, herself or others, right?

A reasonable police officer is recognizing that the crowd is in crisis, that all of these things, the members, the bystanders, the citizens, whatever you want to call them, they are in crisis. So a reasonable police officer considers his department's training.

What are these potential signs of aggression that I may be confronted with? Somebody standing tall, somebody red in their face, raised voice, heavy breathing, tense muscles, pacing, right? This is from the crisis intervention training. This is what Kerr Yang testified to.


These are signs that police officers are trained to look for in a crisis as potential signs of aggression.

How do you respond to those? You appear confident in your actions. You stay calm. You maintain space. You speak slowly and softly. And you avoid staring and eye contact. Again, these are things that Kerr Yang discussed in terms of how to deal with a crisis.

As this crowd grew more and more upset, or deeper into crisis, a very critical thing happens at a very precise moment. And I cannot, in my opinion, understate the importance of this moment. The critical moment in this case, if you recall from Dr. Tobin's testimony nobody disagreed that Mr. Floyd took his last breath at 8:25:16. 8:25:16.

What is happening at the very precise moment that Mr. Floyd takes his last breath? You're taking one piece of evidence and you're comparing it against to the rest. This moment, 8:25:16, as Mr. Floyd is taking his last breath.

Three things happen. Mr. Floyd takes his last breath. You see Officer Chauvin's reaction to the crowd is to pull his mace and shake it. He is threatening the use of force as is permitted by the Minneapolis Police Department policy. And Genevieve Hansen walks in at that time from behind him, startling him.

All of these facts and circumstances simultaneously occur at a critical moment. And that changed Officer Chauvin's perception of what was happening.

After this point, the crowd grows louder and louder, right? And at this point, now, Mr. Floyd has taken his last breath. And the question is the rendering of medical aid.

When do we stop CPR according to the Minneapolis Police Department policy? When it's not safe. You heard Lieutenant Mercil talk about this and you also heard Nicole Mackenzie talk about this.

Consider Nicole Mackenzie's testimony. As far as the reasonable police officer, which would include Nicole Mackenzie, she discussed at length the difficulty of performing CPR in what she would describe or what she did describe as a hostile environment. You miss signs. You -- agonal breathing can be confused for effective breathing.

As she testified, people in the area can affect the decision to treat a subject at the scene. She described how it is incredibly difficult to perform EMS efforts in a loud crowd, difficult to focus when you don't feel safe, makes it more difficult to assess a patient, makes it more likely you can miss signs a patient is experiencing something. So the distraction she said can actually do harm to a patient.

When we're talking about this critical decision-making model, right, as Lieutenant Mercil said, he testified sometimes you have to take into consideration whether it is worth the risk to remove the handcuffs and render medical aid, because it's unpredictable, right? All of this information is coming at a reasonable officer.


The reasonable police officer standard can also be extended to Officer Chang, right? What is his perception of the crowd? You heard him testify. But you can also look at what his -- what was he doing during his -- during this time?

You've got Officer Chang pacing, turning around, 360 degrees, right? His attention is focused on what's happening with the crowd. But he also has another job, right? Reasonable police officers and how they interact with the crowd is a consideration.

You can also take into consideration the reactions of Shawanda Hill and Morries Hall.

Non-police officer and their reactions to what's happening. But also consider the paramedics, right, the paramedics. They did the load and go, right? As Derek Smith testified, he got out of the ambulance, he checked all four corners to gauge what was happening, and determined, in his words, that it was an unwelcoming environment. And he told his partner they needed to move to a different location, a more safe and secure location.

Remember, Nicole Mackenzie's testimony too, as unreasonable as it sounds, paramedics get attacked too.

We have all of these different opinions in terms of the use of force, right? We have all of the opinions of Seth Stoughton, Jodi Stiger, Barry Brodd, Zimmerman, Arradondo, David Pleoger, Lieutenant Mercil and they all reach very different conclusions about when the force became unreasonable.

All you have to know about Barry Brodd is what he was talking about is this physically managing any person. His opinion was, you can use non- deadly force to physically manage a person. It's all within the model of the MPD decision-making model.

I found the most interesting person to be relevant to the use of force Lieutenant Johnny Mercil, considering that he is Derek Chauvin's actual use of force trainer. So the best glimpse that we're going to get into the training of a Minneapolis Police officer comes from the trainer who conducts the training.

He has conducted hundreds of trainings over the years. He corrected the state at certain times in terms of how strike charts don't apply to restraint techniques. He said the knee on the neck is not an unauthorized move and it can be utilized in certain circumstances. He described using a knee on the neck and back and stated it can be there for an extended period of time, depending on the level of resistance you get. He said that once the suspect is handcuffed, it does not necessarily mean it's time to move your leg because when people are handcuffed, they can thrash around and continue to be dangerous to themselves and others.

He talked about the ground defense program because it's safer for both the suspect and the officer.


He talked about ground defenses is a form of using your weight to control a subject without -- and therefore replacing the knee to punch or strike them. He said there is no strict techniques. You need to fluid and adapt to the circumstances. And he personally trains officers to put a knee over the shoulder, up to the base of the neck and he described this maneuver as routinely trained by the Minneapolis Police Department.

He testified that there are circumstances that an officer would need to use his weight to continue to control a subject. He recognized the concept of awful but lawful, right? Sometimes the use of force is just not that attractive. He has experienced himself arresting people who have claimed to have a medical emergency. He explained one way people can resist is through their words. He described how someone resisting can become passive and then become resistant again and vice versa.

He discussed how officers are trained not just to focus on the subject but also the bystanders. He trains officers that if you're fighting with a suspect and that person then becomes compliant, it's a legitimate consideration for the continued use of force to control a subject, that if a subject overpowers more than one officer at a time that is a legitimate consideration in the continuation of the use of force.

He talked about substance abuse and how that officers are trained, right -- I understand that superhuman strength is not a real phenomenon. There are no supermen or Spiderman, right? But officers are trained that someone under the influence of certain types of controlled substances exhibit this behavior. They become stronger than they would. We have all heard the anecdotal stories of a pregnant mom lifting a car off of someone, right? It's not literally describing a superhero, it's simply describing that someone is more -- exhibiting a greater strength.

And the Minneapolis Police Department specifically trains that. He trains on neck restraints. And Minneapolis Police Department has a specific written policy on the use of neck restraints and it was permitted, even though this wasn't a neck restraint, or a chokehold. He talked about how you need to cut off the blood supply for a neck restraint to both sides of the neck. He talked about someone whose heart rate is beating faster, they go unconscious quicker, less than ten seconds.

He described the human factors of force, that is how does the use of force affect the officer himself, his cognition, his abilities, his mental and physical state. He agreed that not using the MRT is a form of de-escalation. He described that sometimes you have to use your body weight to control a subject until the scene is code 4. He said that Minneapolis will train officers that under certain circumstances an officer can hold a person in the prone position until the scene is safe. And he has done it himself at times.

You have to take into consideration the presence of bystanders, where officers are located and the environment that they're in. Lieutenant Mercil agreed that there are circumstances where you -- as I talked about this earlier ago, where you have to make a decision, is it worth the risk to take the handcuffs off to perform medical aid?

He said there are circumstances where you wouldn't put someone in a recovery position, depending upon the safety of people, including the crowd, while awaiting EMS. He described how crowds can make situations chaotic. He said simply because a person is not actively resisting, that does not mean that you cannot use force, right? It doesn't mean that you cannot use force. Simply because someone isn't stabbing you, or punching you, or shooting at you, it doesn't mean that you can't use force. And that is specifically in the Minneapolis Police Department policy on the non-deadly use of force that we have looked at a couple of times.

The use of force is an incredibly difficult analysis. You can't limit it to nine minutes and 29 seconds. It started 17 minutes before that nine minutes and 29 seconds.


All of this information has to be taken. You have to look at it from the totality of the circumstances. You have to look at it from the reasonable police officer standard. You have to take into account that officers are human beings capable of making mistakes in highly stressful situations. In this case, the totality of the circumstances that were known to a reasonable police officer in the precise moment the force was used demonstrates that this was an authorized use of force, as unattractive as it may be.

And this is reasonable doubt. Stiger talked about being on the panel, right? They have five officers on a panel to assess whether uses of force are reasonable. Sometimes it's four to one. Sometimes it's three to two. Sometimes it's five to zero, because the reasonableness of the use of force is not an easy thing to consider.

I know, again -- and I'm sorry I'm longwinded. There are a couple of others things I need to talk about very briefly. I'll promise I'll be as brief as i can before I get to the cause of death. First is that concept of intent. As the state showed you with respect to counts one and two, you have to address Mr. Chauvin's intent. Pay careful attention, again, to the instructions. Words have meaning. Intentionally or intentional means that the defendant either has the purpose to do the thing or cause the result specified, or believes that the act, if successful, will cause the result. In addition, the defendant must have knowledge of those facts that are necessary to make his conduct criminal and that are set forth after the word intentionally/intentional. It's the same -- you'll see a very similar instruction -- see a very similar instruction twice.

Intent. Did Officer Chauvin intentionally apply unlawful force? That's what you're being asked to decide. Did he purposefully -- purposefully apply unlawful force to another person?

In count two, you have to decide, did he purposely perform an act, did he intentionally perform an act that was eminently dangerous, right? What considerations do you have at your disposal? What pieces of evidence do you have? I'm going to try to go through this quickly. What evidence is there? What evidence is inconsistent with intent?

Some facts and circumstances that are important for you to decide in terms of his intent is within the context of aiding and abetting other people. First, officers know that they are being videotaped. They know they're being videotaped by themselves. They know they're being videotaped by bystanders. They know they're being surveilled by the Minneapolis Police Department Milestone camera, right? They know these things.

Do you do something purposefully that you nope is an unlawful use of force when you have four body-worn cameras immediately in the area, where you have multiple civilians videotaping you, where you know your actions are being reviewed through a city-owned camera, where there are surveillance cameras? Do people do these intentionally and purposefully when they know they're being watched?

Remember, Officer Lane offered to have when they were putting Mr. Floyd into the squad car. He said, I'll sit with you. I'll put the window down. I'll turn on the air conditioner.


Roll the window down, three times, and turn on the air conditioning, is that evidence of intent to apply unlawful force? Officer Chauvin confirms that Mr. Floyd was under arrest.

Officer Chauvin made a decision not to use higher levels of force when he would have been authorized to do that, including punches, kicks, elbows, right? All of these tools were available to Officer Chauvin. That is not an intent to purposefully use unlawful force.

They call for EMS within one minute of putting him on the ground. They step it up within another minute and a half. He believes that his -- Officer Chauvin believes that Mr. Floyd's ability to speak means he can breathe and they say it repeatedly, remember?

Excuse me. They tell him to relax.

Officer Chauvin is never swearing at him. He is not calling him names. All of this stuff that we've already talked about -- and I don't need to go through this again. All of this stuff we've talked about throughout the entirety of the circumstance does not reflect an intent to purposefully, intentionally commit an unlawful use of force.

All of the evidence shows that Mr. Chauvin thought he was following his training. He was, in fact, following his training. He was following Minneapolis Police Department policies. He was trained this way. It all demonstrates a lack of intent. There is absolutely no evidence that Officer Chauvin intentionally, purposefully applied unlawful force.

Officer Chauvin is also refocusing the other officers, telling them, they need to do things to pay attention to Mr. Floyd.

Should I put his stuff in the car? No, we need to get him in the ambulance. Let's refocus, all right? Officer Chauvin had no intent to purposefully use or -- he did not purposefully use unlawful force. It's -- it's -- these are officers doing their job in a highly stressful situation.

According to their training, according to the policies of the Minneapolis Police Department, and it is -- it's tragic. It's tragic. They go to the hospital. They perform CPR.


They call their supervisors.