If I, as a member of the jury, was told by the police chief that Chauvin's actions were a clear violation of departmental procedure, that nugget would be underlined and starred in my trial notebook.
when Derek Chauvin inevitably walks ...
- Thread starter _glaciers
- Start date
Watch the cross examination and you might question whether it actually was a violation. When the chief says that having a knee on a person's neck goes against policy, it's pretty damning. When he subsequently says that Chauvin didn't have his knee on Floyd's neck it becomes quite a bit less damning.
Would the fact that he had mor e than 3 times the amount of Fentanyl in his system be underlined and starred also?
They had a hearing this morning to determine whether he will testify or not. The state doesn't want him to testify and the defense does, if for no other reason than to have him take the 5th on all of these incriminating questions. Judge Cahill decided to have both sides submit the questions that they would ask and he would make a ruling.
Yes maybe, but the cross pointed out that the Chief of police didn't actually investigate the issue and didn't have any recent relevant experience. I'm sure that the defense will also point out in closing that the Chief of Police is a political position and thus subject to the whim of politicians and public sentiment.
I thought that was interesting because the prosecution had already named him as a witness. Funny that they would back down from that.
Can't ask about drug use
Can't ask about counterfeit money
Can't ask why he fled the state
Can't ask about Floyd passing out
If nothing else, they should allow his statements to investigators be used as evidence. They are going to be used against him in a future trial anyway so there is no additional incrimination involved there.
oh they can ask him.
did you give Floyd the counterfeit money? 5th
Did you sell Floyd the drugs? 5th
Did you see him pass out? 5th
etc.
You can see why the state wouldn't want him to testify.
The judge isn't going to allow it. Like I said earlier, I'm glad the jury isn't being sequestered. They'll find out about this whole thing.
They discussed it earlier today. The judge is asking the defense to produce some of the questions they might ask that wouldn't lead to the 5th being invoked. He agreed with the guys lawyer on most things but was also open to the idea that there are questions that if he refuses to answer, it could put him in contempt.
Here's a point that I was wondering whether it'll come up. In many jurisdictions, FD will stage outside a scene and will not come to the scene until secured by police. With the crowd becoming more and more hostile to the point where a shopkeeper had to come out and restrain people, the scene was not initially secure. It is the police's job to secure the scene for the medical assistance that they called for and they were busy trying to do that. Well, it just came out in the cross of the MPD medical trainer.
Nelson: Talk to you about MPD policies. Two that deal with emergency medical response. One being after a use of force.
McKenzie: COrrect.
Nelson: As soon as reasonably practical, rendery 5-306, aid consistent with training.
McKenzie: Yes, sir.
Nelson: Policy qualified, as soon as reaasonably practical.
McKenzie: Yes.
Nelson: So you train officers to consider other circusmtances.
McKenzie: Make sure scene is safe before you can render aid.
Nelson: Safe, maybe from other than suspect. Traffic, bystanders depending on behavior.
McKenzie: Yes.
Nelson: EMT won't come to scene until declared code 4.
McKenzie: Generally yes.
Nelson: Not unusual for EMT to stage offsite until police code 4.
McKenzie: Yes.
Nelson: Don't come in until safe.
McKenzie: Correct.
So the defense team has been putting together an argument point that the crowd was taking up the police's time and creating an unsafe situation that hindered their ability to provide aid to counter the prosecution's assertion that Chauvin should've provided aid. The state's witnesses have given testimony that backed up the defense's argument. So far, that adds up to a hell of a lot more than a reasonable doubt as to whether Chauvin murdered Floyd.
Nelson: Talk to you about MPD policies. Two that deal with emergency medical response. One being after a use of force.
McKenzie: COrrect.
Nelson: As soon as reasonably practical, rendery 5-306, aid consistent with training.
McKenzie: Yes, sir.
Nelson: Policy qualified, as soon as reaasonably practical.
McKenzie: Yes.
Nelson: So you train officers to consider other circusmtances.
McKenzie: Make sure scene is safe before you can render aid.
Nelson: Safe, maybe from other than suspect. Traffic, bystanders depending on behavior.
McKenzie: Yes.
Nelson: EMT won't come to scene until declared code 4.
McKenzie: Generally yes.
Nelson: Not unusual for EMT to stage offsite until police code 4.
McKenzie: Yes.
Nelson: Don't come in until safe.
McKenzie: Correct.
So the defense team has been putting together an argument point that the crowd was taking up the police's time and creating an unsafe situation that hindered their ability to provide aid to counter the prosecution's assertion that Chauvin should've provided aid. The state's witnesses have given testimony that backed up the defense's argument. So far, that adds up to a hell of a lot more than a reasonable doubt as to whether Chauvin murdered Floyd.
No, but its pretty obvious that he's only going to allow certain questions, if any. Personally, I just think he should allow his statements to investigators as evidence and avoid the direct testimony. Anything he said to investigators earlier is considered evidence if he is personally tried to just let it stand in this case as well.
And more to the point of whether officer's could be expected to tell the difference between distressed breathing and normal breathing and how that is complicated with an angry crowd.
Nelson: Exhibit 111, CPR presentation,
Nelson: 21856, reference to agonal breathing?
McKenzie: Unresponsive, in respiratory distress, often with opiate overdoses, medical emergencies, drownings.
Nelson: What is it?
McKenzie: irregular gasp for air, brain's last ditch effort to breath.
Nelson: Person observing that, possible they would mis-interpret as effective breathing?
McKenzie: Yes, can be confused.
Nelson: Officer dealing with agonal breathing, could mis-interpret for effective breathing.
McKenzie: correct.
Nelson: If a lot of noise, commotion, more likely that could happen.
McKenzie: yes.
Nelson is straight up destroying the state's narrative on this cross. Now they're talking about the combination of stimulants and opiates, the lethality, the observable effects, and what officers would be expected to be able to observe with a noisy crowd.
Nelson: Exhibit 111, CPR presentation,
Nelson: 21856, reference to agonal breathing?
McKenzie: Unresponsive, in respiratory distress, often with opiate overdoses, medical emergencies, drownings.
Nelson: What is it?
McKenzie: irregular gasp for air, brain's last ditch effort to breath.
Nelson: Person observing that, possible they would mis-interpret as effective breathing?
McKenzie: Yes, can be confused.
Nelson: Officer dealing with agonal breathing, could mis-interpret for effective breathing.
McKenzie: correct.
Nelson: If a lot of noise, commotion, more likely that could happen.
McKenzie: yes.
Nelson is straight up destroying the state's narrative on this cross. Now they're talking about the combination of stimulants and opiates, the lethality, the observable effects, and what officers would be expected to be able to observe with a noisy crowd.
It would've been given in discovery but since he would be a state's witness, the state defines to what extent the witness will testify in direct. Then the defense will cross examine only within the scope of the direct testimony. So the defense cannot just ask the state's witnesses anything or just pull up those statements.
There you go Shuck, making sense again! This is really open shut when you think about it.
This has been a very bad afternoon for the prosecution. The McKenzie cross was disastrous. Even on redirect, McKenzie scored points for the defense unintentionally. This is from the prosecution asking it's own witness:
Schleiter: Officers sometimes have to render aid in less than perfect conditions?
McKenzie: Yes.
Schleiter: How would you define a hostile crowd?
McKenzie Growing contingent of people, yelling, verbally abusive to those providing scene security.
The most interesting thing is that the prosecutor brings up excited delirium and then objects before Nelson's cross that Nelson can't ask about it until the defense case brings it up in their portion of the trial.
I guess you can only take so much at a time.
Schleiter: Officers sometimes have to render aid in less than perfect conditions?
McKenzie: Yes.
Schleiter: How would you define a hostile crowd?
McKenzie Growing contingent of people, yelling, verbally abusive to those providing scene security.
The most interesting thing is that the prosecutor brings up excited delirium and then objects before Nelson's cross that Nelson can't ask about it until the defense case brings it up in their portion of the trial.
I guess you can only take so much at a time.
You can't help but shake your head at the irony of a defense that states Chauven was 'distracted' from offering medical assistance because...get this....of the crowd of bystanders who were becoming angrier and angrier at the arresting officers who were ignoring their pleas for medical assistance to help a man who was clearly in distress.
I don't get how you all can argue with shuck so much. He argues in circles. You refute a point only to have him come back on it and make you repeat the same argument over and over again.
Today, the ninth Minneapolis police officer testified against "By-the-Book" Chauvin.
Among the things we learned from a Use-of-Force trainer who testified is that the knee-on-the-neck hold that Chauvin used to detain Floyd was -- surprise, surprise -- not approved.
Among the things we learned from a Use-of-Force trainer who testified is that the knee-on-the-neck hold that Chauvin used to detain Floyd was -- surprise, surprise -- not approved.
He also testified that chauvins knee wasn't on Floyd's neck.
why do you keep trying to convince anybody? has anybody ever changed their mind because of what you said on here?
let the courts sort this out, then you can cry about the verdict.
One time. Once, he convinced me to go back and look at something and I changed my mind. All the rest of the times I went and looked and he only had the part of the story that confirmed his biases.
Continuing your wrong streak, you only read about the direct. In the cross it was a different story, from CBS: “Mercil later told defense attorney Eric Nelson that the department does train officers to place knee on someone's shoulder if they are resisting being handcuffed while in the prone position. Nelson pointed to several body camera images that appeared to show Chauvin's knee between Floyd's shoulder blades.”
You really need to read the entire testimony if you’re going to try to argue. Or at least find a more accurate news source.
Here the analysis of an attorney who specializes in self defense and use of force cases. He is analyzing the MPD’s use of force expert testimony Shookster was so giddy about. It’s long but worth the read, as is the linked full analysis.
“
STATE’S WITNESS: MPD LIEUTENANT JOHNNY MERCIL, USE-OF-FORCE TRAINER
OK, with Yang out of the way, let’s jump into the first explosive state’s witness of the day, MPD Lieutenant Johnny Mercil, presented as the state’s expert on MPD use-of-force policy and training.
Interestingly, Mercil testified at the start that he was currently on medical leave. A prior state witness police officer, Sergeant Evans, I believe, who took over the Floyd scene from Sergeant Ploeger, had also testified he was on leave. Maybe just a coincidence.
In any case, when not on medical leave Lt. Mercil works in the MPD training division in charge of use-of-force training and policy instruction. He was active in that capacity during the period preceding the Floyd events during which Chauvin would have received his department use-of-force training and policy instruction, which is what makes Mercil’s testimony relevant.
Mercil is also a genuine fan of Brazilian Jiu-Jitsu (BJJ), saying (as many practitioners do, in my experience) that he had “fallen in love with the sport.” This was elicited on direct, led by Prosecutor Schleiter, no doubt to buttress Mercil’s credibility, as was the direct testimony of Mercil about his expertise in hand-to-hand force techniques as both a trainer and a street cop, and his mastery of MPD use-of-force policies. Little did Schleiter know how Mercil’s credibility would shortly boomerang on the prosecution.
Schleiter did his usual routine, where he portrayed use of force options as being cast in absolute and binary terms. If A, then B, if X then Y. Any variance of this was either out of MPD policy or at least “untrained by MPD” (an entirely different matter than being outside policy), and hence “wrong-act.”
Schleiter made use of the MPD use of force continuum, and presented it in the most childish and sterile context possible. If at this level of the continuum, officer can do this, but not that, correct. Mercil dutifully answered in the affirmative. But if at that level of the continuum, officer can do that, but not this. Again, yes.
Schleiter would also pose simplified and hypothetical scenarios only minimally representative of what occurred with Floyd and ask if the use of, say, a neck restraint in that hypothetical would be reasonable. Of course, the answer from Mercil, as intended that narrow and specific question, would be, no, unreasonable.
Missing from all of this direct, of course, was any context around the complex dynamics and circumstances that often surround a police use of force event. That Schleiter wants to avoid any such discussion is understandable, because doing so provides an appearance for at least reasonableness, if not outright justification, for Chauvin’s use-of-force decisions and conduct with respect to Floyd.
Another common routine from Schleiter when doing direct on state’s witnesses who have any purported use-of-force expertise is to show them the photo of Chauvin apparently (but perhaps not actually) kneeling on Floyd’s neck and asking, “Is this an MPD trained neck restraint?” Invariably the answer is in the negative.
That makes for a good headline, but in fact it’s not very informative on the actual issues of the case. Why? Because just because a technique may not be an “MPD trained” technique does not make it outside of policy, does not mean it was legally unjustified, and certainly does not mean it contributed to Floyd’s death—which is what the trial is supposed to be all about.
Once again, Schleiter touched on positional asphyxia, and once again I feel obliged to note that this doesn’t really help the state prove Chauvin’s guilt beyond a reasonable doubt in the context of Floyd’s ingestion of a three-fold fatal dose of fentanyl. Certainly, if I had to choose between two situations, one in which I was placed in a prone position while handcuffed for 10 minutes, and another in which I was forced to ingest a three-fold fatal dose of fentanyl, I know which I’d pick, and quickly. There’s simply no reasonable comparison between those two risks to life.
So, the direct of Mercil was really just more of the Schleiter show we’ve already seen with other state’s witnesses. Kind of checking the boxes, but not even all the boxes needed to support the state’s narrative of guilt—and always by only exposing the jury to half the context, which is a dangerous ploy.
Basing your narrative of guilt on only half the context is a dangerous ploy because we, thank God, enjoy an adversarial legal system, and that means the defense gets to pop right up and expose the jury to the other half of the context, the half consistent with a narrative of innocence—and, in this case, they get to do so with your own witness.
And that’s precisely what happened with Mercil, and in a big, big way.
Nelson began by asking questions related to Mercil’s time as a street cop, with a particular emphasis on the tendency of suspects being subject to arrest to come up with all kinds of nonsense about why they shouldn’t be arrested that day.
Dangerous job, being a police officer? Yes. Are people generally unhappy about being arrested? Very rarely are they happy, Mercil answered. Do suspects frequently engage in a wide variety of behaviors to avoid arrest, including fighting, arguing, making excuses? Yes, they do, answered Mercil.
Indeed, when asked if he himself had ever disbelieved a suspect’s claim of a medical emergency as an apparent effort to avoid arrest, Mercil answered that he personally had done so.
All of this, of course, undercuts the part of the prosecution narrative that is relying on Floyd’s purported pleas and excuses about claustrophobia and anxiety and crying out for mama. Perhaps all of that is real—but a reasonable officer must also consider that maybe much of it is simply an effort to avoid arrest.
Nelson also once again put the use of pressure and body weight techniques in a favorable light. The state wants to present Chauvin’s knee in a negative light, as deadly mechanical asphyxiation, or as a “blood choke” as attested to by MMA Williams. In fact, however, the use of pressure and body weight to restrain a suspect was adopted by the MPD because it was a lesser intensity of force than the prior practice of using strikes—either barehanded, or with batons, or even with weighted gloves—to compel compliance. Mercil concurred.
The take home message for the jury is that Chauvin’s knee, far from being a public execution in a public street, was a lesser forcethan would otherwise have been required.
Whereas Schleiter wants to pretend that all of Chauvin’s use of force and other decisions should have been based solely on the needs and desires of Floyd, Nelson once again had the state’s witness concede that under the MPD critical decision-making model the officer must consider a wide breadth of factors beyond just the suspect, including the officer himself, his partners, any bystanders—especially angry or threatening bystanders.
Schleiter had described use of force in a very static and binary way—once a suspect stops resisting, the officer should immediately stop his use of force, period. But Nelson got Mercil to agree that if that suspect had been forcibly resisting the officer only moments before, that would be a factor weighing in favor of continuing to apply force even after apparent resistance had ceased.
That is, it’s not just what’s happening in the moment that counts, but what happened prior to that moment, as well. (Schleiter pulled this trick again with the last witness of the day, a Jody Stiger from LAPD acting as an expert witness for the state, and I don’t expect it to work out well there, either.)
Additional factors that a reasonable officer would take into account in deciding how much force to apply and for how long included a disparity in size between the officer and the suspect—and as we know, the 6’ 6” 230-pound Floyd was substantially larger than the 5’ 9” 140-pound Chauvin—as well as the circumstance in which a suspect not only fought police, but fought multiple officers—exactly as Floyd did in this instance.
When asked if additional use-of-force factors included if the suspect was believed to be on drugs, and whether being on drugs could give a suspect exceptionally great strength, Mercil agreed to both statements.
When asked explicitly if any of the video of the event showed Chauvin placing Floyd in a “choke hold” (in this context meaning a respiratory choke but the term has been used with careless disregard for accuracy) Mercil was obliged to answer that it did not.
When asked if a carotid choke, or what MPD would refer to as an “unconscious neck restraint” required both of the carotid arteries to be compressed, Mercil answered that it did. So much for MMA expert Williams’ testimony to the contrary.
Further, when asked how quickly unconsciousness occurred when a carotid choke was placed, Mercil answered “less than 10 seconds.” Clearly, then Floyd was not being subject to a carotid choke for the large majority of the 9 minutes or so Chauvin had his knee in place, and likely never during that period.
When asked if Mercil trained officers that a suspect who had become unconscious could regain consciousness, get back into the fight, and perhaps even be more aggressive than previously, Mercil responded that he did.
This, of course, is a rationale for Chauvin maintain his knee across Floyd’s back even after Floyd lost consciousness.
As noted above, Nelson also explored with Mercil whether there were circumstances in which it would be appropriate for an officer to maintain a neck restraint for a substantial period of time, and Mercil conceded that there were.
Sometimes to maintain the neck restraint for however long it took EMS to arrive, asked Nelson? Mercil answered that he, personally, had maintained restraint on suspects for the duration required for EMS to arrive.
To ensure the point: The state’s own use-of-force expert testified on cross that he personally had engaged in use-of-force conduct that the state had been using to demonize Chauvin as an unlawful killer. That’s not a good day for the state.
Nelson also again re-emphasized the reality that the officer involved in a use-of-force event must consider not just the suspect, but also the presence of an angry and growing mob observing what might well look like an ugly use of police force, and Mercil agreed that was the case.
On the issue of providing timely medical care, an issue the state pushes with particular energy, Nelson had Mercil agree that while MPD policy is to provide care as soon as possible, that must take into consideration the safety of the scene, and that the MPD policy actually requires that it first be safe for the officer to provide care before the officer has the duty to provide that care.
Indeed, factors such as whether a suspect had just been fighting with the officers was huge in determining whether an officer could reasonably provide care—especially if that “care” would be chest compressions requiring the suspect to have their handcuffs removed. Mercil answered in the affirmative.
Later, on re-direct, Schleiter would attempt to diminish the damage of this bit of testimony by asking Mercil if bystanders merely taking videos would constitute a reason to not provide care. The answer, of course, was no.
But that merely provided Nelson with the lay-up opportunity on re-cross to ask whether a mob shouting insults and outright threats would constitute such a reason—and that was conduct of the mob in this event—and the answer to that, of course, was yes.
Similarly, Nelson hit back on the state’s emphasis on the whole “recovery position” narrative in the context of hypothetical positional asphyxia. Might there be circumstances that would prevent putting a suspect in a recovery position? Mercil answered that there were.
If that all sounds bad enough for the prosecution, you ain’t seen nothing yet.
It was at this point that Nelson showed Mercil a series of photographs captured from the body worn camera of Officer Lane, and showing Chauvin’s knee on Floyd from the angle down Floyd’s proned body.
Photo 1: Where’s Chauvin’s leg in this image? On Floyd’s neck? Or on his shoulder blades and back. Mercil: Shoulder blades and back.
And in photo 2? Same. Photo 3? Same. Photo 4? Same.
This, of course, fundamentally undercuts the prosecution’s narrative of guilt that it was Chauvin’s knee on Floyd’s neck that killed Floyd.
Are there circumstances like those already discussed where would be appropriate to maintain presence of leg across shoulder blades and back in order to ensure control of the suspect? Yes, there are, Mercil answered. For as long as 10 minutes? It’s possible.
Ouch.
In other words, the use of the restraint can be justified not only to compel compliance of the suspect in the first place, but to ensure that the suspect maintains compliance moving forward—especially given the experience and concern that unconscious suspects can revive and be even more violent than they were prior, even if that restraint is being held in place for as long as 10 minutes. And that’s not just for the safety of the officer, but also for the officer’s partners, for bystanders, and even for the suspect himself.
Just devastating for the state’s narrative, and all of it coming from the state’s own MPD use of force expert.
It was after Nelson was done with cross that Schleiter attempted to salvage something from this train wreck for the prosecution by showing a still photo of the bystanders, pointing to some holding phones, and asking if people taking videos was a good enough reason to maintain a restraint. Mercil answered that video taking by bystanders was not a sufficient reason.
That’s when on re-cross Nelson pulled up the exact same photo that Schleiter had just used, and pointed out that in the picture MMA Williams was clearly being physically restrained from advancing on the officers by the arm of another bystander pulling him back.
Would the threat of imminent physical violence from bystanders be a sufficient reason to maintain restraint on a suspect? If the crowd is shouting that they’re going to slap the “F” out of you, that you’re a “p-word,” that you’re a bum, would that be sufficient to cause the officers to be alarmed about the prospect of imminent physical violence from the bystanders?
Yes, Mercil answered, it would.
There is, of course, more granularity in the actual video cross of Mercil, and I strongly encourage you to watch the whole thing, but that’s all I’ll cover in text form here.”
legalinsurrection.com
“
STATE’S WITNESS: MPD LIEUTENANT JOHNNY MERCIL, USE-OF-FORCE TRAINER
OK, with Yang out of the way, let’s jump into the first explosive state’s witness of the day, MPD Lieutenant Johnny Mercil, presented as the state’s expert on MPD use-of-force policy and training.
Interestingly, Mercil testified at the start that he was currently on medical leave. A prior state witness police officer, Sergeant Evans, I believe, who took over the Floyd scene from Sergeant Ploeger, had also testified he was on leave. Maybe just a coincidence.
In any case, when not on medical leave Lt. Mercil works in the MPD training division in charge of use-of-force training and policy instruction. He was active in that capacity during the period preceding the Floyd events during which Chauvin would have received his department use-of-force training and policy instruction, which is what makes Mercil’s testimony relevant.
Mercil is also a genuine fan of Brazilian Jiu-Jitsu (BJJ), saying (as many practitioners do, in my experience) that he had “fallen in love with the sport.” This was elicited on direct, led by Prosecutor Schleiter, no doubt to buttress Mercil’s credibility, as was the direct testimony of Mercil about his expertise in hand-to-hand force techniques as both a trainer and a street cop, and his mastery of MPD use-of-force policies. Little did Schleiter know how Mercil’s credibility would shortly boomerang on the prosecution.
Schleiter did his usual routine, where he portrayed use of force options as being cast in absolute and binary terms. If A, then B, if X then Y. Any variance of this was either out of MPD policy or at least “untrained by MPD” (an entirely different matter than being outside policy), and hence “wrong-act.”
Schleiter made use of the MPD use of force continuum, and presented it in the most childish and sterile context possible. If at this level of the continuum, officer can do this, but not that, correct. Mercil dutifully answered in the affirmative. But if at that level of the continuum, officer can do that, but not this. Again, yes.
Schleiter would also pose simplified and hypothetical scenarios only minimally representative of what occurred with Floyd and ask if the use of, say, a neck restraint in that hypothetical would be reasonable. Of course, the answer from Mercil, as intended that narrow and specific question, would be, no, unreasonable.
Missing from all of this direct, of course, was any context around the complex dynamics and circumstances that often surround a police use of force event. That Schleiter wants to avoid any such discussion is understandable, because doing so provides an appearance for at least reasonableness, if not outright justification, for Chauvin’s use-of-force decisions and conduct with respect to Floyd.
Another common routine from Schleiter when doing direct on state’s witnesses who have any purported use-of-force expertise is to show them the photo of Chauvin apparently (but perhaps not actually) kneeling on Floyd’s neck and asking, “Is this an MPD trained neck restraint?” Invariably the answer is in the negative.
That makes for a good headline, but in fact it’s not very informative on the actual issues of the case. Why? Because just because a technique may not be an “MPD trained” technique does not make it outside of policy, does not mean it was legally unjustified, and certainly does not mean it contributed to Floyd’s death—which is what the trial is supposed to be all about.
Once again, Schleiter touched on positional asphyxia, and once again I feel obliged to note that this doesn’t really help the state prove Chauvin’s guilt beyond a reasonable doubt in the context of Floyd’s ingestion of a three-fold fatal dose of fentanyl. Certainly, if I had to choose between two situations, one in which I was placed in a prone position while handcuffed for 10 minutes, and another in which I was forced to ingest a three-fold fatal dose of fentanyl, I know which I’d pick, and quickly. There’s simply no reasonable comparison between those two risks to life.
So, the direct of Mercil was really just more of the Schleiter show we’ve already seen with other state’s witnesses. Kind of checking the boxes, but not even all the boxes needed to support the state’s narrative of guilt—and always by only exposing the jury to half the context, which is a dangerous ploy.
Basing your narrative of guilt on only half the context is a dangerous ploy because we, thank God, enjoy an adversarial legal system, and that means the defense gets to pop right up and expose the jury to the other half of the context, the half consistent with a narrative of innocence—and, in this case, they get to do so with your own witness.
And that’s precisely what happened with Mercil, and in a big, big way.
Nelson began by asking questions related to Mercil’s time as a street cop, with a particular emphasis on the tendency of suspects being subject to arrest to come up with all kinds of nonsense about why they shouldn’t be arrested that day.
Dangerous job, being a police officer? Yes. Are people generally unhappy about being arrested? Very rarely are they happy, Mercil answered. Do suspects frequently engage in a wide variety of behaviors to avoid arrest, including fighting, arguing, making excuses? Yes, they do, answered Mercil.
Indeed, when asked if he himself had ever disbelieved a suspect’s claim of a medical emergency as an apparent effort to avoid arrest, Mercil answered that he personally had done so.
All of this, of course, undercuts the part of the prosecution narrative that is relying on Floyd’s purported pleas and excuses about claustrophobia and anxiety and crying out for mama. Perhaps all of that is real—but a reasonable officer must also consider that maybe much of it is simply an effort to avoid arrest.
Nelson also once again put the use of pressure and body weight techniques in a favorable light. The state wants to present Chauvin’s knee in a negative light, as deadly mechanical asphyxiation, or as a “blood choke” as attested to by MMA Williams. In fact, however, the use of pressure and body weight to restrain a suspect was adopted by the MPD because it was a lesser intensity of force than the prior practice of using strikes—either barehanded, or with batons, or even with weighted gloves—to compel compliance. Mercil concurred.
The take home message for the jury is that Chauvin’s knee, far from being a public execution in a public street, was a lesser forcethan would otherwise have been required.
Whereas Schleiter wants to pretend that all of Chauvin’s use of force and other decisions should have been based solely on the needs and desires of Floyd, Nelson once again had the state’s witness concede that under the MPD critical decision-making model the officer must consider a wide breadth of factors beyond just the suspect, including the officer himself, his partners, any bystanders—especially angry or threatening bystanders.
Schleiter had described use of force in a very static and binary way—once a suspect stops resisting, the officer should immediately stop his use of force, period. But Nelson got Mercil to agree that if that suspect had been forcibly resisting the officer only moments before, that would be a factor weighing in favor of continuing to apply force even after apparent resistance had ceased.
That is, it’s not just what’s happening in the moment that counts, but what happened prior to that moment, as well. (Schleiter pulled this trick again with the last witness of the day, a Jody Stiger from LAPD acting as an expert witness for the state, and I don’t expect it to work out well there, either.)
Additional factors that a reasonable officer would take into account in deciding how much force to apply and for how long included a disparity in size between the officer and the suspect—and as we know, the 6’ 6” 230-pound Floyd was substantially larger than the 5’ 9” 140-pound Chauvin—as well as the circumstance in which a suspect not only fought police, but fought multiple officers—exactly as Floyd did in this instance.
When asked if additional use-of-force factors included if the suspect was believed to be on drugs, and whether being on drugs could give a suspect exceptionally great strength, Mercil agreed to both statements.
When asked explicitly if any of the video of the event showed Chauvin placing Floyd in a “choke hold” (in this context meaning a respiratory choke but the term has been used with careless disregard for accuracy) Mercil was obliged to answer that it did not.
When asked if a carotid choke, or what MPD would refer to as an “unconscious neck restraint” required both of the carotid arteries to be compressed, Mercil answered that it did. So much for MMA expert Williams’ testimony to the contrary.
Further, when asked how quickly unconsciousness occurred when a carotid choke was placed, Mercil answered “less than 10 seconds.” Clearly, then Floyd was not being subject to a carotid choke for the large majority of the 9 minutes or so Chauvin had his knee in place, and likely never during that period.
When asked if Mercil trained officers that a suspect who had become unconscious could regain consciousness, get back into the fight, and perhaps even be more aggressive than previously, Mercil responded that he did.
This, of course, is a rationale for Chauvin maintain his knee across Floyd’s back even after Floyd lost consciousness.
As noted above, Nelson also explored with Mercil whether there were circumstances in which it would be appropriate for an officer to maintain a neck restraint for a substantial period of time, and Mercil conceded that there were.
Sometimes to maintain the neck restraint for however long it took EMS to arrive, asked Nelson? Mercil answered that he, personally, had maintained restraint on suspects for the duration required for EMS to arrive.
To ensure the point: The state’s own use-of-force expert testified on cross that he personally had engaged in use-of-force conduct that the state had been using to demonize Chauvin as an unlawful killer. That’s not a good day for the state.
Nelson also again re-emphasized the reality that the officer involved in a use-of-force event must consider not just the suspect, but also the presence of an angry and growing mob observing what might well look like an ugly use of police force, and Mercil agreed that was the case.
On the issue of providing timely medical care, an issue the state pushes with particular energy, Nelson had Mercil agree that while MPD policy is to provide care as soon as possible, that must take into consideration the safety of the scene, and that the MPD policy actually requires that it first be safe for the officer to provide care before the officer has the duty to provide that care.
Indeed, factors such as whether a suspect had just been fighting with the officers was huge in determining whether an officer could reasonably provide care—especially if that “care” would be chest compressions requiring the suspect to have their handcuffs removed. Mercil answered in the affirmative.
Later, on re-direct, Schleiter would attempt to diminish the damage of this bit of testimony by asking Mercil if bystanders merely taking videos would constitute a reason to not provide care. The answer, of course, was no.
But that merely provided Nelson with the lay-up opportunity on re-cross to ask whether a mob shouting insults and outright threats would constitute such a reason—and that was conduct of the mob in this event—and the answer to that, of course, was yes.
Similarly, Nelson hit back on the state’s emphasis on the whole “recovery position” narrative in the context of hypothetical positional asphyxia. Might there be circumstances that would prevent putting a suspect in a recovery position? Mercil answered that there were.
If that all sounds bad enough for the prosecution, you ain’t seen nothing yet.
It was at this point that Nelson showed Mercil a series of photographs captured from the body worn camera of Officer Lane, and showing Chauvin’s knee on Floyd from the angle down Floyd’s proned body.
Photo 1: Where’s Chauvin’s leg in this image? On Floyd’s neck? Or on his shoulder blades and back. Mercil: Shoulder blades and back.
And in photo 2? Same. Photo 3? Same. Photo 4? Same.
This, of course, fundamentally undercuts the prosecution’s narrative of guilt that it was Chauvin’s knee on Floyd’s neck that killed Floyd.
Are there circumstances like those already discussed where would be appropriate to maintain presence of leg across shoulder blades and back in order to ensure control of the suspect? Yes, there are, Mercil answered. For as long as 10 minutes? It’s possible.
Ouch.
In other words, the use of the restraint can be justified not only to compel compliance of the suspect in the first place, but to ensure that the suspect maintains compliance moving forward—especially given the experience and concern that unconscious suspects can revive and be even more violent than they were prior, even if that restraint is being held in place for as long as 10 minutes. And that’s not just for the safety of the officer, but also for the officer’s partners, for bystanders, and even for the suspect himself.
Just devastating for the state’s narrative, and all of it coming from the state’s own MPD use of force expert.
It was after Nelson was done with cross that Schleiter attempted to salvage something from this train wreck for the prosecution by showing a still photo of the bystanders, pointing to some holding phones, and asking if people taking videos was a good enough reason to maintain a restraint. Mercil answered that video taking by bystanders was not a sufficient reason.
That’s when on re-cross Nelson pulled up the exact same photo that Schleiter had just used, and pointed out that in the picture MMA Williams was clearly being physically restrained from advancing on the officers by the arm of another bystander pulling him back.
Would the threat of imminent physical violence from bystanders be a sufficient reason to maintain restraint on a suspect? If the crowd is shouting that they’re going to slap the “F” out of you, that you’re a “p-word,” that you’re a bum, would that be sufficient to cause the officers to be alarmed about the prospect of imminent physical violence from the bystanders?
Yes, Mercil answered, it would.
There is, of course, more granularity in the actual video cross of Mercil, and I strongly encourage you to watch the whole thing, but that’s all I’ll cover in text form here.”
Chauvin Trial Day 7 Wrap-Up: a horrible day for the prosecution
Prosecution visibly shaken after cross-examination of MPD force & medical experts
legalinsurrection.com
An interesting read. Two reactions: 1) It does put the trainer’s testimony in a different light. 2) It was pretty obvious that the analysis wasn’t what you’d call objective. The author knew who his readers were. As with everything, it comes down to one’s perspective and the beliefs that person has going in.
The real story with the ebb and flow of any trail is watching how members of the jury are responding — which you never get from a televised trial.
However you want to slice or dice it — unless the defense has some blockbuster testimony to unveil nobody knows about — I can’t envision a scenario where a jury finds Chauvin not guilty. The open question for the jury is the extent of his guilt.
But, on the other hand, given the number of people who still believe in The Big Lie, I guess it will only take one diehard Chud to create a hung jury.
The real story with the ebb and flow of any trail is watching how members of the jury are responding — which you never get from a televised trial.
However you want to slice or dice it — unless the defense has some blockbuster testimony to unveil nobody knows about — I can’t envision a scenario where a jury finds Chauvin not guilty. The open question for the jury is the extent of his guilt.
But, on the other hand, given the number of people who still believe in The Big Lie, I guess it will only take one diehard Chud to create a hung jury.
Appreciate you reading it and your fair comments. Yes, Mr. Branca knows his audience skews right. But that doesn’t mean that he’s wrong. I’ve been following him since the Zimmerman trial and he’s nailed every major use-of-force verdict in that time.
It is sad that you are so closed-minded that you are unable to look beyond cellphone perspective bias into the totality of the circumstances and evidence presented under due process rules. Yet you call someone who would have an open mind and consider all of the evidence a chud. It seems to me that term would more likely apply to someone who saw a video and some news clips telling him to be enraged and then maintains that anger when all evidence proves that wrong.
I've said for a while that the expert witnesses will be the determining factor, not the opinions of bystanders and investigators that work for MPD. The coroner will be the big one because he will have the definitive cause of death. If the defense can get a couple of doctors to corroborate him then it's probably over.
You and I both know that if not for that bystander's cellphone video, it would have been 'just another day at the office' for Officer Chauvin. Just like Chauvin and his defense team, you want everybody to 'just forget' what we saw with our own eyes.
Where there extenuating circumstances? Of course there were. As with most things in life, there usually are.
But do they excuse the unconscionable behavior caught on tape? Absolutely not.
The thing is that the expert witnesses usually tie a bow on the case in chief that the prosecution has already set forth. In this case, we’re seeing experts before a case has really been made. Sure, there’s been a bunch of emotional appeal and, sure, they’ve put a bunch of badges up there, but there is no clear theory of the crime of murder.
Cardiopulmonary arrest. Which happens with asphyxiation or overdose. It’s a cop out by the ME.
At this point I'd say it's 50-50. All Chauvin knew at the time was that Floyd was fighting with the first two cops and 2 wasn't enough to subdue him. He probably knew he had to use fairly extreme measures to gain control of the situation.
Soooooooooooo....
The prosecution has presented:
- A nine-minute-plus long eye witness cellphone video
- Nine police officers, including Chauvin's boss, who have testified that Chauvin's conduct was inconsistent with normal police procedure.
- A coroner's report that is consistent with asphyxiation.
- Eye witness accounts of bystanders upset that Chauvin and the other officers ignored Floyd's pleas for medical assistance.
At this point, it seems like the amount of time is the most damning evidence against Chauvin. The hole that they will try to poke in that is that for 7 minutes of the 9, Floyd was still fighting. The crowd growing increasingly agitated and potentially aggressive is also a big factor here for those 2 minutes, but that's also kind of a 50-50 type of deal. Any way around it, this is far from over.
One shocking fact about the prosecution's use-of-force expert, Stiger, from the LAPD: this is his first time testifying in court as an expert.
It shows. The prosecution spent 30 minutes on direct. The defense has had him on on cross for over an hour and a half and is walking him through every decision point of the interaction from when Chauvin was dispatched and has had him agree that the legal standard is "objectively reasonable" and that every single point so far has met that standard. He's also agreed that the crowd was aggressive and distracting and a potential threat. He's also acknowledged that knee to upper-back/shoulder blade/neck is in the MPD manual and the HE was trained that way and that Chauvin was using that technique and that the neck restraint was NOT LETHAL FORCE.
So, Stiger briefly makes his claim of excessive force without a lot of backing on direct and then cross walks him through it an every element for more than an hour has been reasonable. This guy is testifying for the defense at this moment. He's not done, so maybe there's a clear point where it transitioned, but this meticulous analysis of Chauvin's actions in front of the jury is a stark contrast to the public narrative that we've all heard.
But maybe the interesting point is that, during questions about crowd noise and distraction, Nelson plays a video and the following questions and answers occur:
Nelson: What Floyd says?
Stiger: Couldn't make it out.
Nelson: I ate too many drugs?
Stiger: I can't make that out, no.
But that is certainly what it sounded like and the jury heard it too with no objection.
Bottom line, this is the prosecution's case. We should be thinking that Chauvin is guilty beyond a reasonable doubt and there's no way the defense can counter that when the prosecution rests. That we've gone this far in the trial and the prosecution has not only not established that case but also their witnesses have put forth enough alternate theories and mitigating factors to amount to a shit-ton of doubt means that it is very possible that we will see an acquittal. Just be ready for it.
I thought it was interesting that towards the end of Stigers cross, he voluntarily said that even from the cell phone footage that chauvins knee was on Floyd's shoulders, more towards the base of the neck. So much for mechanical asphyxiation being the COD.
If it sounded like that and the jury heard it too with no objection, wouldn't that mean Chauvin, who was kneeling on him at the time, would have heard it as well?
So hearing it, how did Chauvin respond? Did he get off him and provide medical assistance? Hell, no. He continued to ignore him and apply pressure.
I don't care how you try spinning this, Chauvin's behavior was inappropriate to the situation and directly contributed to Floyd's death. The only question is what the jury decides is how significant Chauvin's role was in the man's death.
You can still have positional asphyxia but not from Chauvin. Except that the autopsy didn’t turn up any of that evidence either so it really leads towards an OD.
What medical assistance could the officers administered? At one point in the body cam footage there is a conversation that refers to PCP. That can give a person super-human strength and it would probably be important to keep him restrained until EMS arrives, right? He definitely wasn't acting like he took drugs that would sedate him.
What I’m trying to tell you that you aren’t listening to is that those points aren’t nearly as damaging as you think they are in that courtroom and they were all undone almost instantly on cross.
You really do take a juvenile approach to a lot of your arguments. Reality is that they were nine police officers who didn’t really say much of anything and who were either mitigated on cross or actively helped the defense’s case with their testimony. And you say: but nine is a big number. How do you function in society with that level of critical thinking?
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