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.
Back on January 26 the defense for Derek Chauvin notified the court and the state prosecutors of a number of expert witnesses it plans to have testify for the defense at trial. These included a number of medical expert witnesses, including a forensic pathologist, a forensic toxicologist, a forensic psychiatrist, and an expert physician in emergency medicine.
In addition to all those medical experts the defense also planned to call an expert on use of force generally and the Minneapolis Policies and Procedures for use of force in particular. That expert is Barry Brodd, out of Bozeman MT. (A copy of Mr. Brodd’s resume, with contact information obscured, is embedded below.)
I’ve no personal experience with Mr. Brodd, but I do know that he was the use-of-force expert witness for the defense in the trial of Jason Van Dyke, the then Chicago Police Officer who would ultimately be convicted of murder and sentenced to just under seven years for the shooting of 17-year-old Laquan McDonald on October 20, 2014, when police confronted McDonald as he was wandering erratically down the street wielding a knife.
My point here is not to dive into the Van Dyke/McDonald case, but if you’d like to see some of our analysis on that case you can find it here:
LI: Laquan McDonald Video Not Dispositive of Police Criminal Misconduct (Nov. 25, 2015)
No Surprise: Police Shooter of Laquan McDonald Convicted (Oct. 8, 2018)
I mention the Van Dyke/McDonald case here because I’ve obtained video of the expert testimony of Mr. Brodd in that case for the defense, and though it might interest folks to get a sense of how he presents as an expert in court.
This video of Brodd’s testimony at the Van Dyke trial is a bit under 30 minutes in length. The more interesting portion of the direct testimony (questioning by the defense) begins after Brodd has recited his qualifications and been recognized by the court as an expert in use-of-force [at about 06:00]. At that point he begins sharing with the court his expert opinion on whether Van Dyke’s shooting of McDonald was legally justified.
Perhaps the most interesting portion of that direct testimony is at about 12:23 when there is an in court demonstration of the Tueller Drill, using a rubber knife with Brodd as the aggressor and defense counsel as the victim, at a measured distance of 13 feet, the distance at which Van Dyke shot McDonald.
Then at [15:10] we have a very aggressive cross-examination by the prosecutor, followed by a re-direct by the defense and a re-cross by the state.
There’s nothing all that noteworthy from my perspective about this testimony in the Van Dyke trial, either the direct, the demonstration, or the cross, but having found this testimony video of the use-of-force expert chosen by the Chauvin defense team, I thought you all might be interested in having a preview peek at that defense expert.
And here’s that video of Barry Broddy, use-of-force expert witness, testifying at the murder trial of Jason Van Dyke:
Until next time, stay safe!
–Andrew
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.
As promised, here’s a copy of Mr. Brodd’s resume:
Barry Brodd Resume No Contact by Law of Self Defense on Scribd
https://www.scribd.com/document/500187618/Barry-Brodd-Resume-No-Contact
[Featured image is a screen capture from video of Mr. Brodd’s testimony in Illinois v. Van Dyke.]
He could have done a lot better on the Tuller Drill demonstration and he should have addressed the issue of how long it takes for a suspect to become incapaciated after being shot with a handgun. I expect the Arbery shooting video will be used from now on in a lot of cases to demonstrate how an assailant remains a deadly threat to his victim for up to 15 seconds after suffering multiple fatal gunshot wounds.
I cannot see the videos discussing the videos about this case, nor do I remember the details of it, but I cannot help but feel a little slimy after hearing the DA’s cross-examination of Barry Brodd.
“The officer had a gun! Other police were there! Backup was on its way! The knife was only 3 inches!”
As if any of that matters (particularly the length of knife — “Hey, threatening guy, would you please pause for a minute while I get out a ruler to check how long your knife is? A knife that, even being just 3 inches, is enough to cause serious bodily harm, and even death?” when you’re facing someone who can quickly close a distance and cause you harm directly.
Now, perhaps there was good reason to convict in this case — it all depends on what other evidence there was, of course — but this particular line of questioning made my skin crawl.
The DA’s definition of “protection” in the suggested forms of additional officers, vehicles, etc. seemed irrelevant to Van Dyke’s perception of imminent threat and the need for action. It’s difficult to imagine how dispersed law enforcement or a vehicle can be construed as protection. Is the DA implying Van Dyke could have retreated behind a vehicle (should not be considered a valid police action) or that a vehicle driver can intercept MacDonald faster than Van Dyke and the vehicle impact would be non-fatal?
Perhaps the DA’s line of reasoning was challenged later or perhaps the Defense thought there was no gain in correcting these misconceptions of Van Dyke’s options. The event exposes how an expert witnesses’ testimony can be muddled to the point of irrelevance or even damaging. I expect a solid Defense would anticipate this line of rhetoric to better defuse its influence on the jury.
I thought the expert witness should have explained why a reasonable police officer standing in Van Dyke’s shoes could have had a reasonable belief that the use of deadly force was necessary instead of just saying “I am an expert and I think the use of force was justified.” The jury needs to be convinced by the evidence that the use of force was reasonable in the circumstances and the expert witness is supposed to be the one to explain to those who haven’t had any use of force training or experience exactly what the relevant evidence is, and exactly why such evidence justified a use of deadly force.
Excellent video to demonstrate how testimony and cross-examination really work.
This was probably the most important evidence that the defense would present in Van Dyke’s trial, the Teuller Drill explained by an expert witness, but it seems the defense believed the qualifications of the expert witness and his opinion would convince the jury, not logic or plain and simple REASONING. What a wasted moment. Counsel thought the jury would magically understand the danger of being 13 feet from a thug who was ignoring the police command to drop the knife. What are policeman supposed to do? Just be a witness? How do you arrest a young man with a knife? Say, “please drop the knife” till you’re blue in the face. Do you call a social worker to convince the young man to drop the knife? Do blacks have a right because of their race to do whatever they want? To just reenact the Teuller Drill with no explanation is pure incompetence of the defense who is supposed to ask questions to the expert witness and inform the jury – beyond a reasonable doubt – or there is no benefit of paying this guy $350 an hour plus travel expense.
Then the prosecutor diverts the attention for this crucial evidence of the Teuller Drill, which for all practicality was a wasted moment, by focusing on an off the cuff remark by counsel about whether the expert witness felt protected there in court. Policemen have been stabbed, shot and murdered in Police stations, surrounded by cops, all with guns because it only takes a second and a half to produce a gun or a knife, murder a cop or two and the presence of ten cops in the immediate vicinity which might as well have not been there, because they have no idea about what is happening, and even if they did, they would be too late to prevent or stop it. I saw a video of a accused gang member at trial grab a pencil and make a run to kill the witness in open court, in front of the judge and armed bailiffs – a distance of about 20 feet, and the only reason the witness lived is because he moved out of the witness chair as the last moment. Murder someone with a pencil? Go watch John Wick, or just imagine a pencil traveling through the eye and into the brain.
Then to top it off, the expert witness said it didn’t believe the second volley fo shots fired by Van Dyke was justified until he talked to the defendant. Those of some very, very crucial expressions by the expert witness which I feel had a very strong effect in securing a guilty verdict in the case. Did the defense explore what convinced the expert witness to change his view of the second volley of shots? No. Defense was totally unprepared fo that remark. The jury must then believe that the $350 a hour is what led the expert to change his view, which was the reason for the change that the prosecutor was very happy to supply. Defense was looking very flat footed it seems to me.
The expert witness also said something that got lost in the counsel’s brain, since it was not developed so the jury could understand it. The camera video does not always provide accurate information of what Van Dyke was seeing. Even several cameras at night time do not provide enough information to judge what happened. They jury has to put themselves into the defendants perspective and judge him by what HE SAW, not what a camera recorded. The human eye can see things that a camera can not because of color, contrast, and shutter speed. This is something Andrew Blanca has said, that this is where the counsel really earns his money but helping the jury to put themselves into the shoes of the defendant.
On April 21, 2014, Siale Angilau was shot and killed by a federal marshal after he lunged at a witness who was testifying against him.
https://www.youtube.com/watch?v=LWTy-F4i9dQ
You are right on point. I have seen some of Massad’s expert testimony and Massad is not only an expert at the judicious use of lawful force to make an arrest or to defend yourself and/or others from a use or imminent use of unlawful force, but he is a true expert at giving expert testimony that the jury can undertand to be just plain common sense. The expert testimony in the Van Dyke case was useless and the verdict in the case reflected the uselessness of the “expert witness.”
Twenty-one feet in one and a half seconds from a standing start is an accepted standard for average time to cover that distance. What is the average time to cover 10 to 12 feet from a moving start? A true expert witness would have been prepared to provide sufficient evidence to establish that fact and common sense tells use that such time is less than half of the amount of time to cover 21 feet from a standing start. Also a true expert on the use of force would have been ready to explain to the jury just how much longer it takes to recognize and react to a charge made from a moving start than one made from a standing start. Instead of the 1 1/2 second time to react to the charge the witness gave the real time to react to the charge would have been around a 1/2 second and the average time needed to react to the charge would have been around 3/4 of a second. And the witness would have explained that the Tueller drill demonstrates that at 21 feet you will get off a shot just as the knife enters your body. And a true expert at the use of force would have explained just how unlikely it was that that first shot would incapicate your attacker. The 1 1/2 seconds of the Tuller Drill has to be added to the split times for you to get off the additional shots to kill, and then that time then has to be added to the 10 to 15 seconds it takes for the assailant to become incapicated. How many times could Arbery have stabbed Travis McMichael after he was shot in the chest with twelve 8mm bullets (8mm balls of shot)? How many times could Arbery have stabbed Travis after he had been shot in the chest with twenty-four 8mm bullets?
Angilau covered the distance in 1.66 seconds.
Jason Van Dyke was the first Chicago police officer convicted in the last 50 years, so this case was the focus for racial tension. Van Dyke received a very lenient 6 year sentence and will be out in February of next year. The State fought his sentence all the way to the Illinois Supreme Court trying to get a 96 year sentence, to make this former officer a scapegoat to pay for all the sins of the past cops, but said court refused to hear the case. Van Dyke’s lawyer, attorney, Daniel Herbert, was a former police officer, son of a Chicago police officer and also known in Chicago as a super attorney. Just my impression that a lawyer looking like a cop may not have been the best choice for legal help in such a racial trial, but Chicago is Chicago.
You are right on point. I have seen some of Massad’s expert testimony and Massad is not only an expert at the judicious use of lawful force to make an arrest or to defend yourself and/or others from a use or imminent use of unlawful force, but he is a true expert at giving expert testimony that the jury can undertand to be just plain common sense. The expert testimony in the Van Dyke case was useless and the verdict in the case reflected the uselessness of the “expert witness.”
Twenty-one feet in one and a half seconds from a standing start is an accepted standard for average time to cover that distance. What is the average time to cover 10 to 12 feet from a moving start? A true expert witness would have been prepared to provide sufficient evidence to establish that fact and common sense tells use that such time is less than half of the amount of time to cover 21 feet from a standing start. Also a true expert on the use of force would have been ready to explain to the jury just how much longer it takes to recognize and react to a charge made from a moving start than one made from a standing start. Instead of the 1 1/2 second time to react to the charge the witness gave the real time to react to the charge would have been around a 1/2 second and the average time needed to react to the charge would have been around 3/4 of a second. And the witness would have explained that the Tueller drill demonstrates that at 21 feet you will get off a shot just as the knife enters your body. And a true expert at the use of force would have explained just how unlikely it was that that first shot would incapicate your attacker. The 1 1/2 seconds of the Tuller Drill has to be added to the split times for you to get off the additional shots to kill, and then that time then has to be added to the 10 to 15 seconds it takes for the assailant to become incapicated. How many times could Arbery have stabbed Travis McMichael after he was shot in the chest with twelve 8mm bullets (8mm balls of shot)? How many times could Arbery have stabbed Travis after he had been shot in the chest with twenty-four 8mm bullets?