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Defense Gives Closing Arguments in Chauvin Murder Trial. Aired 2:30-3p ET

Aired April 19, 2021 - 14:30   ET



ERIC NELSON, DEFENSE ATTORNEY: They go to the hospital. They perform CPR. They call their supervisors. Was this an eminently dangerous act? Was putting Mr. Floyd an eminently dangerous act?

We've heard a lot about the prone position. Consider just the basic prone position. People sleep in the prone position. People suntan in the prone position. People get massages in the prone position.

The prone position, in and of itself, is not an inherently dangerous act. It is not an inherently dangerous act.

A prone position during restraint is not an inherently dangerous act. It is routinely trained and used by the Minneapolis Police Department.

The studies show, right, Canadian studies, referenced by Dr. Fowler, 1,269 cases, use of force, one death of a person, not in the prone position.

These are people -- they're looking at people in the prone position.

And 4,828 consecutive force events. No significant clinical effects on the subject's physiology. Right?

We can look at all of the other studies, trying to determine this question, is putting a subject in the prone position, even with officers on top, weight on top of the person, is that inherently dangerous?

And the research says no. The practical experience says no.

The prone position, when applied through use of force is not an eminently dangerous act, because there's no evidence to support the notion that it is highly likely -- that's the standard -- highly likely to cause death. There's reasonable doubt about that.

So let's talk about the cause of death.

And, again, I'm sorry to be long winded. But I have to address the cause of death. Because the state neglected to read, perhaps, one of the most

important sentences from the instruction, and why you must read the instruction carefully.

"Yes, the defendant is criminally liable for all of the consequences of his action actions that occur in the ordinary and natural course of events, including those consequences brought about by one or more intervening causes. If such intervening causes were the natural result of the defendant's act."

All right? So if the intervening causes were the natural consequences of the defendant's acts, he is liable.

So think about it in this example.

Police officer arrests somebody. He puts that person on a hot August afternoon in the back seat of a squad car, rolls up the window, turns on the heat and leaves the person in there, right?

The person dies of a heat stroke. Officer put him in there and is responsible for the natural consequences of his actions.

But consider the situation where the police officer arrests someone, they're compliant, go into the back seat of the squad car. They're sitting in the back seat of the squad car, and they have a heart attack. They have a pulmonary embolism. They have a brain aneurysm.

Something happens that was not the natural consequence of being arrested. It was just a physiological something that happens to the individual. The officer is not liable because it's not in the natural course of events.

And it's not the result -- the natural result of the defendant's act. All right?

So, again, read the entire instruction.

The significance of this instruction, again, is that it goes through all of the three charges.

You have to be convinced that the defendant's actions caused the death of Mr. Floyd.

And throughout the course of this trial, the state has tried -- and called numerous witnesses -- to try to convince you that asphyxiation is the singular cause of death, the singular cause of death.


And why is that? It's because actions that happened before Mr. Floyd was arrested -- that had nothing to do with Officer Chauvin's activities -- are not the natural consequences of the defendant's actions.

You have to focus on the consequence of the defendant's acts. And so the state has tried to convince you beyond a reasonable doubt,

that the stress of being arrested, and the adrenalin produced as a result of Mr. Floyd's physical resistance played no role.

This is what they have to try to convince you of -- there's no role of that physical exertion played no role in his death.

They are trying to convince you beyond a reasonable doubt that Mr. Floyd's heart disease played no role in this case.

The state must try to convince you beyond a reasonable doubt that Mr. Floyd's history of hypertension played absolutely no role in the cause of Mr. Floyd's death.

The state must convince you beyond a reasonable doubt that Mr. Floyd was not experiences excited delirium that contributed to the cause of his death.

The state has to convince you beyond a reasonable doubt that Mr. Floyd's paraganglioma was not contributing to the cause of death.

The state must convince you beyond a reasonable doubt that Mr. Floyd's toxicology played no role in his death. All right?

The state would have to convince you beyond a reasonable doubt that a combination of these preexisting issues did not contribute to Mr. Floyd's death.

That is why the state has brought in expert after expert after expert to testify that the singular cause of death, the singular cause of death here is asphyxiation.

Because if Mr. Floyd was asphyxiated as of the restraint he is liable as a natural consequence of the restraint, he is liable for the natural consequences of that restraint, of his actions.

But if any of these other factors comes into it, if any of the other factors were substantial contributing factors of Mr. Floyd's death, because they were not the natural result of the restraint.

If a person has drugs in their system, and that drug causes an overdose in the context of the police restraint, it's not the natural consequence of the restraint. It's the natural consequence of the deceased's actions.

So the state has called six experts. Really five. But I'll include Dr. Baker.

The state first called Dr. Tobin, a pulmonologist.

Dr. Tobin said, "You need to apply common sense to the evaluation of the medical testimony."

He testified that Mr. Floyd died exclusively from positional asphyxia.

Coronary artery disease, hypertension, controlled substances, they played absolutely no role in the death, according to Dr. Tobin.

The state called Dr. Isenschmid, the toxicologist, to explain to you that Mr. Floyd toxicological levels were somehow more consistent with a DWI case than a whole bunch of other cases that may or may not have involved an overdose.

Remember the ratio where he said, no, these are cases -- they may have died of something else, maybe a gunshot wound but they had Fentanyl in their system.

So he gave you these strange statistics. But essentially attempting to try to convince you that -- that these levels are insignificant. People drive their cars around. And therefore, the drugs played no role in the death of Mr. Floyd.

Third, the state called Dr. Smock, an emergency room physician, right, to explain to you that Mr. Floyd was not experiencing any symptoms of excited delirium.

And that coronary artery disease, hypertension, controlled substances, none of that comes in play.

He called Dr. Thomas, a pathologist, to testify how she interpreted what Dr. Baker meant, how she concluded that Dr. Baker simply said that the cardiopulmonary arrest is the basic way everybody dies.


And she interpreted the reason why Dr. Baker put those factors on his autopsy or on the death certificate were merely for statistical purposes.

We put stuff -- the CDC requires to us put that stuff on there.

And it was an asphyxial death. Controlled substances played no role. Hypertension played no role. The coronary artery disease played no role.

They did call Dr. Baker. We'll talk about Dr. Baker in a minute.

And finally, the state called Dr. Rich, the cardiologist, who concluded that despite 90 percent narrowing of the right coronary artery and a 75 percent narrowing in the left interior descending artery, despite an enlarged heart and a history of hypertension, Mr. Floyd had a strong heart.

And that none of those pre-existing and co-existing conditions in any way contributed to the death of Floyd.

I submit to you that the testimonies of Dr. Tobin, Isenschmid, Smock, Thomas and Rich, it flies in the absolute face of reason and common sense. It -- it's astounding.

Especially when you consider the actual findings of Dr. Baker, right?

Because Dr. Baker is the only person who actually performed the autopsy in this case. He is the only person who performed the actual autopsy.

He told you he specifically avoided watching the video because he didn't want to bias or influence his autopsy.

He specifically testified that there was no evidence of asphyxia. There were no evidence of petechial hemorrhaging.

There was no bruising to the neck or back above the skin, under the skin or into the subcutaneous muscles of the neck and back. And he would expect to see those things in a case like this.

There was no finding that pressure was applied to the point of Mr. -- of the back to cause the injuries. There were no injuries to the structures of his neck.

And that when he finally did review the video, it didn't appear the placement of the knee affected the structures of the neck, because Mr. Floyd could lift his head, turn his head, move it around.

He saw no fractures to the structures of the neck, including the hydroid bone. There were no soft tissue injuries to the sides of Mr. Floyd's neck.

There was no hemorrhaging or injury to the hypopharynx. No evidence of life-threatening injury to the neck or spinal column of Mr. Floyd.

There was pulmonary edema, which is the swelling of the lungs, which could be caused by the resuscitative efforts or Fentanyl.

There's no evidence of hypoxic changes to the brain. There's no evidence of any brain injury consistent with an asphyxia death.

He found a Paraganglioma and he said it was an incidental finding.

He said his heart his enlarged. Mr. Floyd's heart was enlarged.

Dr. Baker, Dr. Thomas, Dr. Rich, Dr. Fowler, all agreed.

He found narrows of the right coronary artery, 90 percent narrows. And 75 percent narrowing of the left interior descending artery.

He's the person that sent out the toxicology samples.

Fentanyl level at 11 nanograms per milliliter. Methamphetamine at .19 per milliliter.

All of these findings, ultimately relied upon by all the other experts, were done by Dr. Baker. He determined that the manner of death was a homicide, right? Homicide. Homicide. Homicide.

But read the definition again of the medical definition of homicide.

"It is to be emphasized that the classification of homicide for the purposes of the death certificate is a neutral term and neither indicates nor implies criminal intent, which remains a determination within the province of the legal processes." Right? The fact that he found this a homicide is a medical term.


Dr. Fowler talked about the undetermined manner.

"Could not be determined is a classification used when the information pointing to one manner of death is no more compelling than one or more other competing manners of death in or through consideration of all available information."

Dr. Baker found the immediate cause of death and the other contributing factors.

Cardiopulmonary arrest, complicating law enforcement's subdual, neck restraint and neck compression. Other contributing factors are arterial sclerotic and hypertensive heart disease, Fentanyl intoxication and recent Methamphetamine use.

The term "complicating" in this is important. Because Dr. Baker was able to give you what he said his actual intent was, right?

Dr. Thomas speculated about what she thought Dr. Baker meant.

Dr. Baker was able to tell you what he meant.

He defined "complicating" as "an intervention that occurred -- an intervention occurred and there was untoward outcome on the heels of that intervention."

He gave you a specific example. He described a person having a hip surgery. And a blood clot comes loose. And the blood clot causes a death. The hip surgery didn't cause the death. The death was caused by the blood clot that complicated the surgery.

So as I understand his testimony, what Dr. Baker was saying was that there was an unexpected result, the death of Mr. Floyd, occurred during an event where you would not generally expect such a complication, subdual and restraint.

He specifically testified -- Dr. Baker specifically testified that if he put it on the death certificate. it played a role in the death.

If something is insignificant to death, you don't put it on the death certificate.

So Dr. Baker's conclusions, that Mr. Floyd's arterial sclerotic and hypertensive disease played a role in the death of Mr. Floyd.

Dr. Baker concluded that Mr. Floyd's Fentanyl intoxication played a role. Dr. Baker concluded that Mr. Floyd's recent Methamphetamine use played a role. All right?

Dr. Baker described that this death of Mr. Floyd was a multi-factorial process. A multi-factor process is how he defined it. No single factor, one over the other, played any more of a result -- played any more of a role resulting in Mr. Floyd's death.

He said his heart simply couldn't take it, within the context of the subdual and restraint.

Apparently, the state, as they just argued, wants you to believe what you see. And they did not like Dr. Baker's conclusions.

And you can see the process Dr. Baker talked about when he had several meetings, right? This happened in March. Excuse me. Happened in May, June, July.

By August talked to a pulmonologist, talked to emergency room doctor. Not within my area of expertise. Talked to a cardiologist, right? He -- his findings didn't support the notion that what you see is what you should believe.

And so the state did that. They went and hired Dr. Tobin, a pulmonologist.

Now, despite all of the information that Dr. Baker has concluded, or found during the actual autopsy, Dr. Tobin concluded emphatically that Mr. Floyd's death was the result of positional asphyxia, right?

The pressure of the asphalt, pressure of the weight of the officers, positions, all of this resulted in hypoxia, low oxygen to the brain. Mr. Floyd was asphyxiated through positional asphyxia.


Remember at the beginning of my remarks, I asked you to perform an honest assessment of all the evidence in the case. And I'm going to submit to you that with no other witness should this be more carefully analyzed.

I want to illustrate two brief things that Dr. Tobin testified about, and I want to illustrate how I think that these demonstrate a bias.

Because you still have to consider an expert witness in the context of bias.

I'm going to call it the finger and knuckle testimony and the toe lifting testimony.

You may remember this slide. Right? That this slide shows George Floyd pushing his fingers against the street to lift his shoulder off the street. That he was pushing his knuckles against the tire.

He described what he interpreted this was basically Mr. Floyd trying to push himself up into, onto his left side to free the right lung to help him breathe.

Look at the time stamp of the photos taken from the body-worn camera here. They were taken at 8:19.35, 15 seconds after Mr. Floyd was placed on the ground.

Yet, Dr. Tobin also explained that Mr. Floyd went on to breathe for an additional 57:51 until he took his last breath at 8:25.

He neglects the fact that, at this point, this is the point we just saw when Mr. Floyd is taken out of the car and he is actually in the side recovery position for about the first two minutes of this 9:29.


GEORGE FLOYD, DIED WHILE IN POLICE CUSTODY: I'm moving. Mama. Mama. Now I'm up. Mama. Mama.



FLOYD: Mama. Mama.



FLOYD: All right. Oh, my god.


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

Mama, I love you. Police, I love you. Tell my kids I love them.


FLOYD: I can't breathe, man.


FLOYD: Mama, I love you.

I can't breathe.



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



FLOYD: Please, I can't breathe.


UNIDENTIFIED POLICE OFFICER: Get up on the sidewalk, please. One side or the other, please.

FLOYD: My face feeling bad. (CROSSTALK)

UNIDENTIFIED POLICE OFFICER: -- leg restraints on him?

UNIDENTIFIED POLICE OFFICER: Leave him. Just leave him.



FLOYD: Look at my face, man.



NELSON: How can you take -- this clearly illustrates how you can take a single nanosecond of time in this arrest, you can have this testimony that he's pushing his body up to try to breathe, right?

But when you look at the evidence compared to the rest of the evidence, what do you really see?

You see a person who is on his side being held in the side recovery position, whose hand is touching the ground and the tire at times.

You cannot take a single isolated frame and reach any conclusions because much like the use of force, cause of death has to be considered within the totality of the circumstances.

And then you may remember this testimony. This is Officer Chauvin's foot off the ground. And he described how at this precise moment, Officer Chauvin was applying 91.5 pounds of pressure to the neck of Mr. Floyd.

Let's look at this time in the context of the other evidence.





UNIDENTIFIED WITNESS: How long they going to hold him down?



NELSON: Did anybody even see the toe come up off the ground? I mean, was it half a second? A quarter of a second?

But when you take a single incident, a frame, a single frame, and you add the drama, and you make all of the assumptions, right? Officer Chauvin's body weight, Mr. Floyd's EELV. He's the only person

who calculated the EELV based upon the presumptions of health, based upon studies, based upon theory.

All of this information -- you can put this into a single frame, but you have to analyze the evidence in the broader context.

You can also see during the clip that Officer Chauvin actually is sort of adjusted forward and touches this car.

You can make a lot of informed decisions about, how is he shifted? If I'm shifting my weight this way, the majority of my weight is shifting on my left foot. If I'm this way, it's on my right foot.

You watch this video and you can see the dynamic shifted. And you can see the placement of the toes.

The toe tucked under helps an officer maintain his weight or helps any person maintain their weight. But a toe flopped over to the side, it's a little harder to balance.

You cannot take a single frame and draw conclusions. You have to look at the totality.

Remember, he said he spent 150 hours analyzing this tape. His entire testimony is filled with theory, speculation, assumption.

Do not let yourselves be misled by a single still frame image. Put the evidence into proper context.

We have to talk about the toxicology. Again, we're not suggesting this was an overdose death. It's a multifactorial process, as Dr. Baker said.

So, we have to look at what role does the toxicology play in this case.

And you need -- because, again, we had Dr. Isenschmid, who testified that he found the levels of Fentanyl and Methamphetamine were more consistent with this DUI population.

But what do we know about the actual toxicology? There were 11 nanograms per milliliter of Fentanyl and 0.1 nanograms of Methamphetamine. This is a principal finding.

We know the by-product of Methamphetamine, which is Amphetamine, was not reported at the levels. Doesn't mean it wasn't technically there but it was not reported. So it's below threshold reporting values.

Which significant -- which signifies the Methamphetamine use was recent. Hence, in Dr. Baker's death certificate, he included the recent Methamphetamine use because there was no Amphetamine.

The history of Mr. Floyd's use of controlled substances, it is significant.

It's not a character problem. Millions of Americans suffer from opioid crisis. I mean, it is a true crisis that this country is facing.

But it is significant to understand the history. Not just as much as the long-term history, but his long-term history provides us with insight on how his body physically reacts to Methamphetamine -- or opioid use, I should say, opioid use within the context of a law enforcement encounter.

We know from the testimony of Courteney Ross that Mr. Floyd struggled. We know he had been using controlled substances habitually for some time.


We know that on May 6th, in 2019, during an encounter with police, Mr. Floyd ingested some controlled substances. They were Percocets.