Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd. I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.
Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial can access the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including Pandora, iHeart, Spotify, Apple Podcast, Google Podcast, simple RSS feed, and more.
Overview: “911? I’d like to report a murder.”
Today was a terrible, horrible no good, very bad day for the prosecution, to a degree that I haven’t seen since the trial of George Zimmerman.
If you have no more than an hour to watch the video of today’s proceedings, then I urge you to spend 44 minutes watching the cross-examination of state witness Johnny Mercil, the state’s use-of-force training expert, and 22 minutes watching the cross-examination of Nicole MacKenzie, the state’s medical care training expert. In both instances the result can only be called a train wreck of a disaster for the prosecution.
Indeed, after the judge dismissed Mercil from the witness stand, Prosecutor Schleiter appeared visibly shaken and angry—and he ought to have, given the mauling his case just received. At one point Mercil testified the he himself had personally kept a suspect physically restrained until EMS had arrived on scene, behavior which the state has been arguing for over a week was misconduct on the part of Chauvin.
Even worse, not only did the cross-examination of MacKenzie by the defense also go badly for the prosecution, it went so badly that Nelson informed the court that he intended to re-call MacKenzie as a defense witness when he presented his case in chief.
There were two other witnesses today, neither of which went particularly badly for the state, although in the case of one of them I expect it was only because the prosecution was saved by the bell when the court recessed early in the day—that doesn’t save the prosecution, that witness will be back tomorrow, and I anticipate that the defense is going to have a field day with him on cross-examination, as well.
Morries Hall 5th Amendment Argument
But first some housekeeping. Before the jury was brought into the courtroom we heard some discussion about the complication of Morries Hall, the reported drug dealer in the Floyd’s Mercedes SUV, announcing he was going to plead the 5th if called to testify in the Chauvin trial.
Hall has a real problem. If he provided Floyd with the drugs that likely were actual cause of death, under Minnesota law Hall is looking at 3rd degree murder. Naturally, he doesn’t want to testify in the Chauvin trial only to have that testimony used against him in his own trial.
There’s no doubt that Judge Cahill will respect Hall’s right to assert the 5th. The only question is whether there might be some areas of questioning in which Hall could participate that do not incriminate him.
This seems to me unlikely, and of course Hall’s own attorney doesn’t want him to be compelled to say a word about anything, but Judge Cahill has asked the defense and state to write down the questions they’d like to ask Hall, and Cahill will decide if any of them will be allowed.
Incidentally, it’s worth noting that Hall “appeared in court” via video, and his background looked like jail to me—cinderblock walls, visitor notification signs, etc.
In any case, that’s where things sit with Mr. Hall.
State’s Witness: MPD Sergeant Ker Yang, Crisis Intervention Training Coordinator
I’m not going to spend much time here on Sergeant Yang, both because his testimony wasn’t very interesting, and because I want to get right to the juicy cross-examination of Mercil, and MacKenzie. I’ll only note that Yang’s testimony, focused on crisis intervention policies of MPD, did little to advance any narrative of guilt for the state, especially after the defense on cross of Yang was able to get him to concede that all these policies were contingent on practicability and safety of the scene.
In the interests of thoroughness, however, here’s Yang’s direct, cross, and brief re-direct testimony.
Yang Direct Questioning
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 force than 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.
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.
Here’s the direct, cross, re-direct, re-cross, and re-re-direct of Mercil:
Mercil Direct Questioning
State’s Witness: MPD Officer Nicole MacKenzie, Medical Support Coordinator
But the state’s terrible, horrible no good, very bad day wasn’t over yet. Next up was the state’s MPD expert on medical issues, Officer Nicole MacKenzie.
Again direct was by Schleiter, and again he used the same old playbook. Provide half the context, in a childishly simplistic form that stripped out all context and certainly ignored the totality of the circumstances.
On direct, Schleiter had MacKenzie testify about how officers had a duty of care to suspects, that Chauvin had CPR and other training that would qualify him to provide emergency care, and that such care must be provided by the officer even if an ambulance has already been called. This was all particularly the case if the suspect was unresponsive, if the suspect was in handcuffs, if the suspect was in the prone position, and so forth.
And again, Nelson pimp-slapped him hard on cross.
Isn’t it true, Nelson asked MacKenzie, that you train officers to consider not just the suspect, but the totality of the scene? Yes, she replied.
Isn’t it true that police officers also have a competing duty of safety to themselves, their partners, to bystanders, that paramedics, for example, don’t have? To the point that if the scene is unsafe, if the officers haven’t already announced a code 4 “all safe,” that EMTs will stage a distance away until they are told safety has been achieved. Yes, MacKenzie replied.
And isn’t it true that the safety concern might come not from the suspect himself, but from angry bystanders? Indeed.
We keep seeing Nelson circle back to this reality, and it’s a potent view of the events around Floyd’s death. It raises the legitimate question of whether it was, in fact, the angry bystanders who in effect “killed” Floyd by interfering with the officers’ ability to provide Floyd with the attention and care which he’d otherwise have received.
Indeed, their angry presence compelled the paramedics to do a “load and scoot” of Floyd, delaying his effective treatment, and resulting in further delays when the fire department could initially not find the re-located ambulance.
Along these lines, Nelson also touched on a new issue, that of agonal breathing. This is a kind of “last gasp” desperate type of breathing a body near death engages in, and is generally considered an ineffective form of respiration and a sign of really desperate physiological condition.
Isn’t it true, Nelson asked, that agonal breathing could be misinterpreted by officers as just breathing? Yes, answered MacKenzie. Would this be a more likely misinterpretation if the scene was noisy, disruptive, had the presence of a loud angry mob? It would, answered MacKenzie.
Again: Did the mob effectively “kill” Floyd?
Nelson noted that one of the CPR training slides previously shown by Schlieter on direct questioning of MacKenzie had indicated that one of the reasons an officer could justifiably cease performing CPR was if the circumstances were not safe enough to allow continued CPR. Would this also mean that unsafe circumstances could justify not starting CPR in the first place, even where CPR would otherwise be warranted. Yes, answered MacKenzie.
A highlight of the cross of MacKenzie occurred when Nelson pulled up another slide from the training materials. This one showed a picture of a type I’ve seen many times, intended to illustrate in dramatic form just how lethal fentanyl is.
The picture showed a vial of heroine, with a small bit of powder in it—that small amount of heroine represented a fatal dose. Beside it was a second vial, with a much smaller amount of a powder—that represented a fatal dose of fentanyl. Finally there was a third vial, with a truly miniscule amount of powder—that represented a fatal dose of a particular common variant of fentanyl.
One can only imagine the effect this had on a jury that is naïve to the lethality of fentanyl, especially given that death by fentanyl overdose is the obvious explanation for Floyd’s death as an alternative to Chauvin’s death knee.
Naturally, recognizing the damage being done to their narrative of guilt, the prosecution raised an objection, and there was a lengthy sidebar. When Nelson returned to cross, he immediately moved on to another topic, so perhaps Cahill upheld the state’s objection to the vials image.
In any case, the next topic for discussion was also incredibly damaging to the state—and made even more so, as we’ll see.
Nelson began to explore the question of excited delirium with MacKenzie. This was a topic that MacKenzie trained MPD officers on, so she had expertise, and Chauvin would have received this training, so the knowledge is relevant to his decision-making with respect to Floyd.
You’ll recall that we can hear the officers discussing concerns about excited delirium on their BWC videos.
The importance of excited delirium for the defense is that it explains both a lot of Floyd’s erratic behavior, raises genuine concerns of super-human strength on the part of the already very large Floyd, provides a justification for the sustained restraint of Floyd’s entire body from foot to head as that’s part of the excited delirium protocol for police, and more.
Naturally, again seeing the damage done to their narrative of guilt, the prosecution objected, and there was another sidebar. When Nelson returned he again promptly moved on—but, we’ll learn, not because he was giving up on excited delirium—and not without having yet another line of questioning for MacKenzie that would prove severely damaging to the state.
Here Nelson began to ask again about the reasons that arriving paramedics might do a “load and scoot.” Why that approach, if the patient needs care?
One reason, MacKenzie answered, was that the patient might need immediate care that could only be provided at the hospital, such as emergency surgery.
Understood, replied Nelson, but might there be another reason?
Yes, answered MacKenzie. Unfortunately, and this might be hard to believe, she said, but there have been instances in which paramedics were attacked by an angry crowd. If that’s a concern, the paramedics might do a load and scoot purely for reasons of their safety.
Exactly as happened in the case of the paramedics arriving at the Floyd scene.
Wait, it gets worse.
Is one of the reasons the ambulance might do a load and scoot is not just the safety of the paramedics, but that the presence of an imminently threatening crowd would make it difficult or impossible for the paramedics to focus on providing proper care to their patient?
Yes, answered MacKenzie.
Boom. Again: Did the mob effectively “kill” Floyd?
And that was the end of Nelson’s devastating cross of MacKenzie.
Not that it was MacKenzie who was devastated, any more than Melcir had been devastated. Both were treated with respect by Nelson, and came across as genuine professionals.
Rather it was the state’s narrative of guilt that was devastated.
And it’s not over yet.
On re-direct by Schleiter we had a perfect, classic example of why a lawyer should never ask a question unless he knows the answer he’s going to get.
Isn’t it true, Schleiter asked MacKenzie, that officers shouldn’t expect to only have a duty to provide care under perfect circumstances? MacKenzie agreed. So far so good.
But then, in an effort to undercut Nelson’s characterization of the bystanders at the Floyd scene as constituting a hostile crowd, Schleiter asked MacKenzie for her definition of a hostile crowd.
Her answer: A growing contingent of people, yelling, being verbally abusive to those providing scene security, acting in manner that could interfere with care.
Boom. Exactly as the mob was conducting itself at the Floyd scene.
Again: Did the mob effectively “kill” Floyd?
And it’s still not over for the state.
It was at this point, when both sides had completed today’s questioning of MacKenzie, that it was revealed that the state had objected to Nelson’s asking MacKenzie about excited delirium. Rather than fight that objection, Nelson took a different approach entirely.
He informed the court that he intended to recall MacKenzie as a defense witness for his own case in chief.
That’s right. Not only was MacKenzie’s testimony, as a state’s witness, incredibly damaging to the state itself when Nelson was limited to the role of cross-examination, and limited by the state’s own scope on direct, Nelson was going to bring MacKenzie back as a defense witness, where he would be in control of the scope of direct, and the state would find itself limited on cross.
And that was it for state’s witness MacKenzie—until we next see her as defense witness MacKenzie.
I. Cannot. Wait.
Here is the direct, cross, and re-direct of MacKenzie:
MacKenzie Direct Questioning
State’s Witness: Sergeant Jody Stiger, Los Angeles Police Department, Expert Witness
The last witness of the day was one Sergeant Jody Stiger, of the Los Angeles Police Department, who has been retained by the state prosecutors as an expert witness on use-of-force tactics and policy.
I’m going to cover Stiger only quickly here, because the court day ended in the middle of his direct questioning, and the state’s direct of their own witnesses has not proven particularly enlightening even when the witnesses were apparently strong.
And, frankly, Stiger does not appear to be a particularly strong or impressive expert witness, so I don’t expect the state to garner much value from him. Sure, I expect he’ll say the words the state is paying him to say, and he did so today, but that’s what we routinely see that on direct from the state. (Although, that said, his direct today was pretty weak, really, and I don’t expect that to improve tomorrow.)
More to the point, if Stiger proves as weak on direct as he appears so far, I expect that Nelson will make easy and bloody work of him during cross-examination tomorrow.
In the interests in getting this blog post out in a timely manner, however, so everyone can enjoy the cross of Mercil and MacKenzie, I’ll leave my comments here with respect to Stiger, and pick him up again after he’s gone through the whole state’s witness experience tomorrow.
In any case, here’s the portion of Stiger’s direct questioning that took place today:
Stiger Direct Questioning
That’s all I have for all of you today. We’ll be back again in the morning for our LIVE coverage of the trial proceedings, so join us then. And of course we’ll have our usual end-of-day wrap-up commentary and analysis in the evening.
Until next time, stay safe!
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service. If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here: Law of Self Defense Membership Trial.
[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]