Andrew Branca, backwards trial, Charles McMillian, Christopher Martin, Courteney Ross, Derek Chauvin, Derek Smith, Eric Nelson, Genevieve Hansen, George Floyd, J. Alexander Kreng, Jerry Blackwell, Judge Cahill, Lt. Richard Zimmerman, political persecution, Seth Bravender, Thomas Lane, Tou Thao
How, gentle readers, can one tell when a criminal trial is a racist, political persecution? How can one easily and quickly tell when the charges should never have been brought, but were because racist politics—politics wielded against non-blacks–demanded it?
Regular readers, having seen SMM analysis of the George Zimmerman Trial, the Michael Brown incident, and the Freddie Gray trials, know the answer: there is often a rush to judgment, and arrests are made long before all the evidence is known (very much the case here). The Prosecution has unlimited state resources, but behaves like stereotypically sleazy defense lawyers. They overcharge, and because they don’t have the law or the evidence, resort to inflaming emotions, racial passions, and courtroom histrionics, shouting and wildly gesturing. They commonly deny discovery due the Defense, allow witnesses to lie or get away with half-truths, and leak and lie about their case to the media. Such a prosecution will try to flood the courtroom with all manner of witnesses and “evidence,” most of which is utterly unnecessary and is there merely to try to convince the jury by sheer volume and repetition rather than by relevant substance. The Defense, on the other hand, has the law and evidence, calmly goes about its business, and upholds legal ethics. In other words, they act like professional, ethical prosecutors.
This is particularly upsetting when one realizes every prosecutor’s charge, their first and most sacred duty, is always to do justice, not social justice.
One additional giveaway is many of the Prosecution’s witnesses are actively hostile to the defense, claiming memory lapses, and telling only partial truths. Good defense attorneys can use this on cross-examination, when they use police reports and interview transcripts to make them admit what they supposedly “forgot,” or changed since they were interviewed or deposed. Such things are deadly to a prosecution case, and will actually tend to prove the Defense case. Many prosecution witnesses will actually turn into defense witnesses on the stand. And so it is in the first week of the persecution of former MPD Officer Derek Chauvin.
NOTE: Attorney Andrew Branca of The Law Of Self Defense fame, is covering the trial of former Minneapolis Police Officer Derek Chauvin in depth for Legal Insurrection. I’ve found Branca and I commonly mirror each other’s thinking on these issues, so rather than reinventing the wheel, I’m going to link to his daily wrap ups, which include imbedded video, and add additional commentary, which I hope will be illuminating. Full disclosure: Branca and I occasionally correspond. This article, covering the first week of the trial after the jury was seated, is the fifth in the George Floyd SMM archive.
I’ll not cover jury selection; Branca did that very well. There can be no doubt: none of the officers can get a fair trial in Minneapolis, indeed, likely nowhere in Minnesota. So poisoned has been the jury pool, I’ve no doubt there are two or more “stealth” jurors impaneled, people who are there to ensure a guilty verdict regardless of the evidence. I’ll have more to say about this as the case wears on. These weekly articles will be, of necessity, quite long, but if you read them, and take the links for supplementary materials and video, you’ll be well informed indeed.
Day 1: Branca summarized the State’s opening statement:
The state’s opening consisted largely of the kind of hyperbole, emotive pleading, and half-truths that we’ve grown to expect from politically motivated prosecutions, and relatively little focus on the facts required to be proven beyond a reasonable doubt in order to secure a just conviction. The State began with a carefully edited version of the videos from the scene, edited for maximum emotional impact. One of the 12-15 prosecutors—a Black man—handled the opening:
For example, [Prosecutor Jerry] Blackwell quoted extensively from the Minneapolis Police Department (MPD) policy manual, but only quoting the ‘soft’ portions of the manual that refer to treating suspects with respect and not using excessive force.
Blackwell somehow neglected to mention the portions of the MPD policy manual that explicitly permit the use of neck restraints, including knee to neck, when dealing with resistant and non-compliant suspects, as well as the portions calling for full-body restraint of suspects believed to be undergoing potentially deadly excited delirium syndrome.
Similarly, Blackwell acknowledged that Floyd had drugs in his system, but only the opioid portion of the drug cocktail on which Floyd was intoxicated. He argued to the jury that Floyd’s opioid (fentanyl) toxicity could not have contributed to his death because opioids make people sleepy, and Floyd was clearly not sleepy (indeed, he forcibly resisted arrest, but Blackwell slides over that awkward reality).
Blackwell neglected, however, to mention that the reason Floyd and his vehicle and passengers were still on scene when the police arrived was because Floyd had passed out in the vehicle and his passengers were unable to rouse him despite their fear that police were about to arrive.
Blackwell also failed to note that Floyd wasn’t merely on fentanyl, the pills he had ingested were a combination of fentanyl and methamphetamine—and as the name suggests, methamphetamine is a powerful stimulant.
See what I mean, gentle readers when I speak of the hallmarks of the racist, political prosecution that should never have been brought? It’s all there: the emotion, the half-truths, the concealment of facts, and this from the people who are supposed to protect the public. Branca on the Defense opening:
Defense Counsel Eric Nelson focused much of his opening statement urging the jury to apply their powers of reason and common sense to the actual evidence and law—which is, of course, the jury’s duty—rather then relying on emotive rhetoric. Along these lines, Nelson repeatedly banged the ‘reason’ and ‘common sense’ drum.
He also sought to undercut the emotive and repetitive cites to the ‘9 minutes and 29 seconds’ repeatedly called out by Blackwell by emphasizing the enormity of evidence that had been gathered in this case, including over 50,000 potential exhibits, investigation by over 50 Minnesota technicians, 20 agents from the FBI, a dozen search warrants, interviews of 50 members of the MPD, interviews of EMS and fire department personnel, much of the MPD command staff, and over 200 civilian witnesses, many of whom actually saw nothing of what happened. Clearly the evidence around this case was more than just under 10 minutes of video.
Nelson offered the jury a framework for understanding that day’s events that was both simple but yet far more comprehensive than the ‘9 minutes and 29 seconds’: look to the totality of the event, including the events at Cup Foods where the bad bill was passed, the events at the Mercedes where Floyd had passed out and refused to show his hands and in which illicit pills were found, the events at the squad car where Floyd forcibly resisted arrest and where more of Floyd’s drugs were found, and finally the events following when Floyd was placed in the care of medical personnel who were so fearful of the angry crowd that they were compelled to drive Floyd away from the scene before attempting to provide care.
Again, we have the Defense assuming the rightful role of the prosecution, upholding the law and legal ethics. There were only a few witnesses—all prosecution witnesses for the foreseeable future—who added virtually nothing to the prosecution case, including a so-called “martial arts expert” who wasn’t. The second witness, one Alicia Oiler, was a disaster for the State, particularly considering they chose to put her on the stand second in their case in chief. Take the link for more detail on her and the others. I am watching as much of the video of the trial as possible, and again, I agree with Branca’s analysis.
Day 2: Everything presented this day was all about feelings, emotion. It was the epitome of the backward trial. I noticed the prosecution was getting away with a very large number of leading questions of its witnesses, but Defense attorney Eric Nelson was not objecting. I suspect this is because he believes the State is doing more damage than he could do by objecting, and he believes he’ll be able to use that later. Also, the state may have so many witnesses, they jury will remember only what happened late in the trial.
Today, the State’s “martial arts expert” was caught up in the State’s attempt to claim the threatening crowd that forced the paramedics to drive three blocks away before stopping to treat Floyd wasn’t threatening at all. Branca noted:
Another interesting theme among the state’s witnesses today made it seem as if they’d all ben carefully coached to make sure they denied that the crowd of angry bystanders had in any way acted in a manner that could be perceived as threatening by the officers. Yet, throughout their testimony they also couldn’t help but recount actions of themselves or others that could easily be perceived as threatening.
For example, [martial arts “expert”] Williams denied engaging in any threatening behavior, but then in an effort to make Officer Thau look bad he recounted how Thau had put a hand on his chest to push Williams back to the sidewalk—which action was only required because Williams had stepped off the sidewalk and aggressively approached to within a foot or so of Thao.
There would be much more actual evidence of the threatening crowd at the scene, including off duty Minneapolis firefighter Genevieve Hansen, who had been a firefighter for only a year on that day. Like every witness thus far, her testimony was emotive and counterfactual. When Nelson cross-examined her, she was so hostile and uncooperative, Judge Cahill sent the jury out and read her the riot act, during which she actually tried to argue with him! That didn’t go well for her.
Day 3: The day began with the end of the testimony of Firefighter Hansen. Obviously, no one educated her about proper courtroom demeanor before her testimony, but someone equally obviously schooled her overnight, because she was much more circumspect, unlike at the scene, where she is depicted on video calling the officers “bitch.” Her testimony this day amounted to nothing, and Nelson wisely didn’t let Hansen dig herself out of the hole she dug the day before with her hostile and unprofessional demeanor.
Christopher Martin, a clerk at Cup Foods that day, did nothing but help the Defense, bringing up things the Prosecution absolutely did not want mentioned. Martin is Black, which shouldn’t matter, but in this case, it does:
Several key facets of Martin’s testimony could really only be characterized as favorable to the defense, including:
*Floyd had indeed passed a rather obviously fake counterfeit bill (after his friend had failed to pull this off in the very same store)
*Floyd appeared substantively impaired while in the store (‘He did look high,’ as Martin put it)
*Floyd was an unusually large man (it was what made Martin take exceptional notice of Floyd in the first place)
*Floyd had refused repeated offers to simply make good on the bad bill, pay for his cigarettes with actual money, and the whole incident would be forgotten
In other words, if Floyd were not a convicted felon, high, threatening and a jerk besides, the police would never have been called, and America wouldn’t have suffered more than 2 billion dollars in damages.
Also interesting was Charles McMillian, Black and 61 years old. He was there, watching, before the crowd gathered, and can be heard trying to tell Floyd to quit resisting the officers. His testimony was very emotional, and he broke down, sobbing. He was particularly damaging to the prosecution, because he did not appear to be trying to slant his testimony to help the prosecution, and like Martin, said things the prosecutors did not want the jury to hear:
First, at one point, for example, the prosecution is rolling body camera footage showing the officers moving towards Floyd laying on the ground, as they position themselves to do a full-body restraint, and Floyd deliberately kicks out at the officers with both legs. It was this conduct that led to the officers sending Thau to look for ankle hobbles, and why they were so determined to restrain Floyd’s legs from that point forward.
Second, while being questioned by Prosecutor Eldridge, McMillian was asked how Floyd appeared to him while being restrained, with Chauvin’s knee on Floyd’s neck. I expect Eldridge was hoping for a reply along the lines of ‘he looked like he was being killed.’
Instead, what Eldridge got was McMillian stating that Floyd had foam running out of his mouth. A perhaps stunned Eldridge responded with, ‘Foam in his mouth?’ and McMillian immediately affirmed, ‘Yes, foam in and out of his mouth.’
As I’ve previously written, the Defense is going to show Floyd was dying, by his own hand, before the police arrived. Foaming at the mouth is a classic symptom of acute Fentanyl poisoning. I’m sure the prosecutors were thinking: “oh shit!” during much of McMillian’s testimony. We also learned that Floyd, seeing the police coming, ingested a variety of drugs so he wouldn’t be caught with them. So many, he killed himself. As we’ll later see, he had overdosed in the same way and on the same drugs in the past.
Day 4: Branca began his coverage today relieved Defense attorney—the only one—Eric Nelson seems to be handling the trial well. Considering the 12-15 prosecutors, that’s a reasonable concern, and again, I agree with Branca.
There were five witnesses this day, none of whom helped the Prosecution, such as Courteney Ross, Floyd’s white girlfriend and co-addict, who, as expected, was very emotional, breaking down and sobbing.
Her testimony was a classic case of prosecutors trying to put their spin on devastating evidence before the Defense does. She established Floyd’s behavior, including his pattern of intensely self-destructive drug abuse and crime, that day was anything but new. She’s a stone addict trying to make another stone addict, and felon, seem sympathetic. She also had to admit that in another overdose a few months before Floyd’s May 25 death, Floyd was foaming at the mouth, another “oh shit” moment for the prosecution. This was particularly deadly:
We also learned from Ross that the passenger in Floyd’s car, Maurice Hall, the man who had earlier tried to pass a bad $20 bill to the clerk in Cup Food and been rebuffed, was apparently Floyd’s drug dealer, or at least one of them.
This provides some insight to why that man’s legal counsel suddenly announced yesterday that if his client was called to testify in Chauvin’s trial he would refuse to provide testimony and would plead the 5th. If I were the drug dealer involved with a fatal overdose of a client, I suppose I’d be pleading the 5th, as well, as I’d be liable to a murder conviction.
And of course, the state can never admit this, because it would utterly screw their persecution of Chauvin. Another prosecution witness testifying for the Defense was Paramedic Seth Bravender, who testified, among other things:
*Only about 90 seconds elapsed between the officer’s first “code 2” call—non-life threatening emergency—and their “code 3” –lights and siren—call, which indicated the officers were very concerned about Floyd, and as soon as they suspected he was in real medical distress, called for appropriate medical response.
*He confirmed they decided to “load and scoot”—drive three blocks away—before they could safely deal with Floyd because of the angry and threatening mob.
*He confirmed one of the four officers—Officer Lane–rode in the back of the ambulance and did chest compressions—there is body cam video of this—during that three-block ride. Hardly the actions of racist, uncaring cops, particularly since Derek Chauvin directed Lane to ride along.
*when the prosecution played Bravender’s body cam video, firefighter Hansen and the State’s “martial arts expert” can both be heard calling the officers and paramedics “bitch.”
The other paramedic, Derek Smith, did the prosecution no favors:
I’ll jump right to the money on Smith, and this occurred during his cross examination by Nelson, when Smith expressed the belief that ‘there was no reason the cops couldn’t have started chest compressions on Floyd sooner.’ I’m sure those on the ‘lynch Chauvin now!!!!’ bandwagon will take this statement as some kind of definitive proof that Chauvin is criminally responsible for Floyd’s death.
Reality is, of course, quite different. Police officers receive only basic first aid training, and virtually everywhere, they are ordered not to render anything beyond that training. Why? Because they’re likely to do damage, and will get sued for practicing medicine without training or a license. Those officers could not possibly have diagnosed Floyd’s condition. They had no medications and no knowledge about what to do with them. They recognized he was in distress and did everything they could reasonably do to get him medical help as quickly as possible.
The police do CPR from time to time—I did it many times—but being in a position to realize a non-violent person who was not under arrest wasn’t breathing and had no pulse is very different than the situation with Floyd. Oh, and CPR works only about 10% of the time. That doesn’t mean one shouldn’t do it, only that in this case, even if the officers did CPR the moment Floyd’s pulse and respiration ceased, the medical evidence is going to show it would have made no difference. His lungs were full of fluids and two to three times their normal size. No wonder he kept saying he couldn’t breath long before he was placed on the ground, which he repeatedly and expressly asked the officers to do.
Day 5: The trial ended at mid-day, so there were only two witnesses: a MPD Sgt., who added nothing of consequence (many witnesses testify only to provide foundation—explain how or why evidence was found, where it was kept, etc.), and MPD Homicide Lt. Richard Zimmerman, the first of the high-ranking MPD officers to throw the officers under the bus. The media is reporting the police chief is anxious to do the same:
Perhaps the best way to describe Lt. Zimmerman is ‘well-seasoned.’ He joined the MPD back in 1985, after a few years as a Sheriff’s deputy, back in the days when cops carried a gun, handcuffs, and that was about it. Often, back then, from my own recollection, not even radios—indeed, often not even every squad car had a radio.
[Prosecutor] Frank had a very specific role in mind for Zimmerman, and it had little to do with the substantive factors of this case. And there’s good reason it had little to do with the substantive factors of this case—because Zimmerman knows virtually none of the relevant evidence of the case. [emphasis mine]
Much as with Sergeant Edwards, Zimmerman was almost immediately aware that this was going to be a critical incident and promptly handed over to [Bureau of Criminal Apprehension, the State Police] BCA—indeed, as it was in fact handed over within two or three hours of Zimmerman’s involvement.
Zimmerman’s role, then, was largely as a transient caretaker of the case, to ensure the uniformed officers were doing the things they were supposed to be doing to secure evidence, run crime scene tape, canvass for witnesses, and so forth.
But everybody involved, including Zimmerman, was aware that by the time they went to bed that evening this would be a case entirely in the hands of BCA, with effectively zero involvement by MPD.
Zimmerman knew nothing about the case. So why was he testifying? It’s a blatant attempt to use his relative experience to buttress a bogus case; an attempt to argue from authority rather than evidence:
The body cam footage is important here, because unless Zimmerman had viewed at least that limited body of evidence he’d have zero basis on which to have a use-of-force opinion.
Accordingly, the prosecution had fed him the limited body of evidence consisting of body camera footage specifically so they could ask for his use of force opinion in court, and have that opinion based on more than zero knowledge of the evidence.
And Zimmerman was happy to comply, providing Frank with every answer the prosecutor could hope for.
The placement of a knee on the neck, Zimmerman said, qualified as deadly force, because ‘it could kill someone.’
This, which Defense Attorney Nelson will surely get to, puts the lie to Zimmerman:
Unmentioned here by either prosecution or defense (although I expect the defense will come back to this point from a more advantageous position than cross on a state’s witness) is that the MPD training policies and manual in effect on May 25, 2020 explicitly allowed for—and, indeed, provided photograph illustrations of—knee on the neck use of force as appropriate non-deadly restraint of a suspect. (The city of Minneapolis did pass a law in July 2020, banning just about anything resembling a ‘choke hold,’ but that was obviously new policy adopted after the Floyd event.)
Zimmerman also testified a handcuffed suspect could not possibly present a threat to an officer. There are two possibilities here: either Zimmerman has been so long off the street he has forgotten reality—if he ever knew it–or he is blatantly lying to support the MPD/Minneapolis elite narrative.
Handcuffed criminals, every day, injure, maim, cripple and kill police officers and others. Every basic training course, everywhere, hammers home the message handcuffs are only temporary restraining devices, not to be trusted, and suspects have to be carefully herded and watched, because even handcuffed suspects can hurt them.
Zimmerman, based only on viewing body camera footage, called the force used against Floyd “totally unnecessary.” Nelson did not go after Zimmerman, I suspect because he didn’t want to give him the appearance of expertise; Zimmerman is not a use of force expert. Zimmerman was testifying based only on viewing a few minutes of video, and had no idea of the context, the totality of the circumstances, of the encounter. Branca helps illustrate the point:
These limitations were illustrated when Nelson asked Zimmerman if there was any provision under MPD policy in which a knee on neck would be allowed, other than as a purely opportunistic defense technique, and Zimmerman replied that there was not.
Well, having looked at the actual MPD policy and training manual, I can state with certainty that knee on neck is explicitly permitted (or was, at the time of the Floyd event), and even demonstrated photographically.
Branca has also provided some additional videos—there are many from many perspectives in this trial—illustrating issues from the first week of testimony.
Final Thoughts: the first week of testimony ended on script for a backwards trial. Many—perhaps most—of the prosecution’s witnesses actually made the Defense case. This is inevitable in racist, political prosecutions, because the primary “evidence” against the accused is screaming, in a variety of ways, “raaaaaacist!” at them and the jury, with the always implicit—and in this case, explicit—threat to burn the town down and murder jurors if the accused is acquitted. The courthouse has been turned into an armed, barricaded fortress, and hundreds, perhaps thousands of police officers from all over are providing security.
Every day, the Prosecution had many “oh shit” moments, such that I wish I could be in the courtroom to see their body language and reactions. Defense Attorney Eric Nelson did a solid job. If he can capitalize on the false and misleading testimony in future weeks, he’ll have an excellent case on appeal.
Keep in mind there is no evidence of racism in this case. The police did not stop and racially profile Floyd. They were called because he tried to pass a counterfeit $20, and refused to make it right. The officers who responded did so because the call went to them—it was their district or they were close. They had no idea what the race of the person involved was until they approached his parked car. Despite his bizarre behavior and resistance, they did not so much as strike him or pepper spray him.
I doubt an acquittal is possible, but we’ll see. Why not? Apart from the threat of the destruction of Minneapolis and other blue state cities, the City of Minneapolis gave Floyd’s family a $27 million settlement—the highest in American history in such a case—and announced it early during jury selection. There was no question they were going to make the Floyd family rich, the only questions were when and how much. There can be only one reason for the amount and timing: to completely poison the jury pool, once and for all. More in a week, or earlier if necessary.