So far, the Chauvin defense case is doing more to shore up the prosecution’s evidence than knock it down.
So far, the Chauvin defense case is doing more to shore up the prosecution’s evidence than knock it down.
T he presentation of evidence could close today in the Minneapolis trial at which Derek Chauvin is charged with murder in the death of George Floyd last Memorial Day. The defense plans to call at least two expert witnesses, and the big question is whether they will turn out, like yesterday’s defense expert on police use of force, to be home runs . . . for the prosecution.
Chauvin’s defense is moving quickly, and I can’t imagine it will go much beyond today if the defendant does not testify. All indications are that he will not. From his opening statement, through the prosecution’s case, and so far in presenting the defense case, Chauvin’s lawyer, Eric Nelson, has done nothing to signal that his client would take the witness stand. Usually by now there has been some sign — some bit of evidence or line of cross-examination that appears to be a laying of groundwork for the defendant eventually to explain his side of a disputed story. There has been none of that.
There is risk in such testimony. If Chauvin were to take the stand, prosecutors would surely use his disciplinary record, which includes 18 complaints over 19 years, to cross-examine him. Some of the complaints reportedly involved excessive-force allegations, though it should be kept in mind that criminals often make false claims against cops, and only two of the 18 complaints against Chauvin resulted in reprimands. By not testifying, he would keep these matters out of the case.
In any event, Judge Peter Cahill, who has been meeting with the lawyers for each side on scheduling matters, has advised jurors that they will probably have the day off on Friday, and that summations will start Monday morning. That schedule would be implausible if there were a realistic expectation that Chauvin would testify.
The jury will be sequestered once deliberations begin after the summations, so Judge Cahill did not want the lawyers to sum up on Friday, which would have meant keeping the jury holed up over the weekend. That’s a considerate move, but whether it’s a smart one remains to be seen. As the trial winds down, Minneapolis is once again in flames after another police-involved killing. In fact, at least one of the Chauvin trial jurors lives in the Brooklyn Center suburb where Daunte Wright was shot to death, and others have connections of varying kinds to the area. It would probably have been better for the court to work straight through, keeping the jury sequestered and thus shielded from the unrest and publicity that is sure to intensify this weekend.
Meanwhile, the rest of the defense case, which started Tuesday morning, has not gone much better for Chauvin than use-of-force expert Barry Brodd, whose rocky appearance I covered in last night’s column.
Nelson continues to attack the state’s causation proof — i.e., the prosecutors’ evidence that Floyd died from the police restraint, rather than from drug abuse or his constellation of medical problems. In this vein, the defense called Shawanda Hill, an old friend of George Floyd’s who ran into him in the Cup Foods store where Floyd passed the counterfeit $20 bill. Floyd offered her a ride home, and she was thus in the car with him and his friend, Morries Hall, when the police arrived on May 25. Nelson mainly elicited from her that Floyd was tired, fell asleep in the car, and was difficult to revive. The point was to show that Floyd’s behavior was consistent with fentanyl abuse.
It won’t get far. Hill also testified that Floyd seemed to be fine when she first encountered him and became alert and excited when the police arrived. This is consistent with the state’s medical testimony that, while Floyd had the dangerous opiate fentanyl (along with the stimulant, methamphetamine) in his system, the drugs did not kill him. Thus far, Nelson has not come close to refuting the state’s extremely persuasive medical-expert witnesses. That is obviously the top defense objective today: The trial is under way, with Dr. David Fowler, an internationally prominent forensic pathologist and, before his retirement, the chief medical examiner for Maryland, appearing as a defense witness.
Ms. Hill’s testimony shed no light on what Floyd was doing with Morries Hall, who had been sitting in the passenger seat (with Hill in the back), and who could be heard on one recording telling police that his name was “Ricardo.” Besides ingesting drugs, Floyd was also in possession of a small amount of narcotics and counterfeit money when his police altercation began. Hall declined to testify in the trial, and Judge Cahill has sustained his claim of the Fifth Amendment privilege against self-incrimination.
Nelson also called a couple of witnesses — former police officer Scott Creighton and retired paramedic Michelle Moseng — to provide aspects of Floyd’s arrest a year earlier, on May 6, 2019. On that occasion, Floyd offered some not-very-serious resistance, acknowledged being under the influence of drugs (oxycontin, among other things), and pleaded with police not to shoot him or beat him up (which the police told him they had no intention of doing). The limited upside for the defense is that the jury saw Floyd being uncooperative and incoherent on a different occasion. But the main impression one comes away with is that, when Floyd was handled in a professional manner by the police, nothing terrible happened — he didn’t die. I don’t see how that helps Chauvin, who is accused of handling Floyd in a highly unprofessional manner.
The defense also presented Minneapolis Park police officer Peter Chang, who responded to the scene on May 25, 2020, when Floyd was first being detained by MPD officers Thomas Lane and Alexander Keung. Though May 25 was a dark day, it may have been the luckiest day of Chang’s life: He offered to assist the cops who were struggling to get Floyd into their squad car, but Lane asked him instead to watch Floyd’s car. Consequently, he ended up minding Hill and Hall across the street from Cup Foods, rather than getting physically entangled in Floyd’s arrest, resistance, and restraint.
Nelson showed the jury most of the 23-minute recording from Chang’s body-cam. The purpose seemed to be to show the action from a different angle, which cast the police actions in a somewhat more favorable light. Significantly though, and much like Brodd’s use-of-force testimony, the recording undercut a major defense claim, namely, that the crowd that gathered around the cops’ detention of Floyd was aggressive and intimidating — which, Nelson argues, caused the police to be concerned for their own safety, thus making it unreasonable to condemn them for keeping Floyd in the prone position and failing to render medical assistance. In reality, the recording confirms that the bystanders were small in number and, though upset with the cops, never threatened them.
Nor was the defense helped by recalling Officer Nicole McKenzie. As she explained when testifying for the state earlier in the case, she trains police to administer basic medical care. Officer McKenzie offered some brief testimony about police being trained on “excited delirium” syndrome. This is an issue in the case because, when they were holding Floyd down, Lane suggested to Chauvin that they roll Floyd onto his side because Lane was worried about excited delirium.
This is another indication that Chauvin will not testify. Nelson seems to be focusing on Lane’s concerns as a way of suggesting that Chauvin must have had similar concerns. That would be unnecessary if Chauvin was planning to take the stand and tell the jury what he was thinking.
In any event, McKenzie’s testimony did not help the defense: To the contrary, echoing the state’s medical experts, her account strongly suggested that Floyd was not exhibiting excited-delirium signs. In addition, she elaborated that even detainees who appear to be in excited delirium must be rolled over into the side recovery position once they are handcuffed and no longer resisting arrest — which Chauvin and the other officers did not do with Floyd. McKenzie added that during his 19-year police career, Chauvin would have gotten regular CPR training because police are supposed to render medical aid, such as chest compressions, to detainees who are in extremis. Again, Chauvin and the other now-fired officers did not do that for Floyd.
The decision whether to mount a defense case can be a tough call. In this case, the state’s own evidence shows that (a) the police did call for an ambulance (i.e., they tried to get Floyd medical help), (b) Floyd violently resisted arrest, and (c) Floyd abused drugs that could have exacerbated his profound cardio-pulmonary problems. Under these circumstances, the best course would probably have been to offer no defense evidence, rely on the presumption of innocence, and argue that the state had not met its burden of proof on intent and causation.
Easy for me to say up here in the cheap seats. Eric Nelson, who has to make the tough call, knows it is probable that Chauvin will be convicted and that there are always some who will castigate a defense attorney whose client is found guilty after presenting no defense — indeed, such critics inevitably include the convicted defendants, notorious for Monday-morning quarterbacking about how they’d have beaten the rap if only their lawyers had made this or that (boneheaded) move. Such criticism ignores that, often as not, a defense case ends up helping the prosecution. And if the defense presents some evidence but does not put the defendant on the stand, his failure to try to explain himself becomes all the more glaring — even though jurors do try to follow the judge’s instruction that they may not construe the accused’s silence against him.
So far, the Chauvin defense case is doing more to shore up the prosecution’s evidence than knock it down.