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This update will cover Week 3, days 11 and 12—Monday and Tuesday.  I’ll begin with the Defense motion to dismiss, which was denied.  This is expected.  In every criminal trial, at the end of the prosecution’s case, the defense always moves to dismiss/acquit, alleging the state failed to prove the elements of the crimes.  They do this whether the allegation is true or not, because who knows?  The judge just might go for it.  They very rarely do.  And in this case, no judge would grant such a motion, taking the wrath of the entire Minnesota political establishment, to say nothing of the BLM/Antifa thugs they allow free reign, on himself.  The only oddity in this process was Defense Attorney Eric Nelson didn’t make his motion until after he had begun to present his case, which would normally be a problem, but the judge was so anxious to get this case over with, he forged ahead and let Nelson make the motion at the end of Tuesday with the jury out of the room.

There are two additional issues: Minnesota is under the thumb of its racist, tyrannical governor, so Derek Chauvin has been forced to wear a mask for the entire trial.  It is surely much easier for a jury to convict someone whose face they’ve never seen in person, essentially a non-person they’ve already been conditioned to hate long before being chosen for the jury.  Also, the Defense is hampered by being unable to call any of the officers that were present that day to testify.

All of the articles in the SMM George Floyd archive are available here, and once again, please take the daily links to see video footage of the testimony and read all of Andrew Branca’s insightful commentary.

Day 11: 

If the headline to today’s post didn’t give it away, two of today’s witnesses were among the most annoying seen in this trial, and indeed among the most annoying I’ve ever seen anywhere.  Those were Dr. Jonathan Rich, a Cardiologist out of Chicago, and Professor Seth Stoughton, a Law Professor and purported use-of-force policy & standards expert out of North Carolina, I believe.

Dr. Rich also had some views of cardiovascular physiology and function that struck me as rather odd. Granted, I’m no cardiologist. Still—very odd.

For example, George Floyd’s enlarged heart, technically cardiomegalopathy driven by hypertension of the sort that ultimately leads to congestive heart failure and death, was not the sign of compromised physiology, but actually a strength—literally.  You see, that was just Floyd’s heart getting stronger, just like if you go to the gym and lift weights.

In other words, cardiomegalopathy is not a glitch, it’s a feature!

I kid you not.

This kind of bizarre testimony is the result of the Prosecution having to shift its supposed cause(s) of Floyd’s death on the fly.  I’m sure they were hoping Nelson wouldn’t notice Chauvin’s knee actually wasn’t on Floyd’s neck, which means he couldn’t have compressed so much as one of his carotid arteries, or cut off his breathing.  The autopsy found no physical evidence of such compression or trauma.

Well, apparently having 90% occluded coronary arteries was also a feature, and not a glitch. Because when the coronary arteries got sufficiently occluded, the heart would begin to grow collateral blood vessels to make up for the constricted blood flow of the primary coronary arteries.

Indeed, it’s actually less risky to have a higher degree of coronary artery blockage that fostered collateral blood vessel formation than it is to have a lower degree of coronary artery blockage! Who knew?

And of course, Dr. Rich, who never examined Floyd, would have no way to know whether his fanciful growing “collateral blood vessels” actually existed.  Fascinating how centuries of medical knowledge can be turned on its head in an instant in the pursuit of social justice.

The bottom line from Dr. Rich’s testimony was that nothing else about Floyd could possibly have killed him, but for the conduct of the officers.  90% occlusion of coronary arteries? Nope. Fentanyl overdose. Nope. Pathological hypertension? Nope.

Other people die of those things? Yes.

But not Floyd? Nope.

No contradiction there, no sir.  We have to believe experts and science, which apparently changes every day, or more often.  It’s rather like the classic Woody Allen comedy, Sleeper.  The protagonist is awakened in the future by doctors who observe people in his time didn’t know what was actually good for human beings, like hot fudge and tobacco.

For those interested in the specifics of the charges against Chauvin, and the probable jury instructions, that information may be found here.

Day 12:  There were quite a few witnesses this day, most clearly helpful to the defense.

Barry Brodd:  The first defense witness was use of force “expert” Barry Brodd.  Brodd wasn’t useless, and did make a number of good points, but Nelson did not make full use of him, and left open a number avenues of attack Prosecutor Schleicher took full advantage of on cross.  Nelson made up considerable ground on re-direct, but damage was done.  Attorney Andrew Branca comments:

By then, however, Brodd was in a very, very deep hole that he ought not to have been in to begin with. And, frankly, I wonder if the fault for the poor cross-examination doesn’t fall to Nelson as well. Perhaps Nelson drilled Brodd hard on how to handle the very predictable attacks brought to bear by Schleicher –but given that Nelson had not pre-empted these attacks on direct, I’m thinking perhaps that preparation did not occur. It certainly looked as if had not occurred.

And more:

For me, the bottom line for Brodd’s testimony as the defense use-of-force expert witness in this trial was to deliver a perfect and coherent use-of-force justification that was largely, if not entirely, invulnerable to substantive damage upon cross-examination by the state.

I know that sounds unrealistic, but I can tell you I’ve seen it done. It was accomplished by the use-of-force expert in the George Zimmerman case, for example.

In the Zimmerman trial the Defense use of force expert very roughly handled the corrupt prosecutors.  While Brodd wasn’t incompetent, he didn’t do nearly as well, and he really needed to.

Because I don’t believe Brodd accomplished that necessary mission, in my view he felt short of requirements for this trial.  I’m not certain whether that’s more the fault of Nelson or more the fault of Brodd. I am certain, however, that it is Chauvin who faces paying the price.

Peter Chang, Parks Officer: Chang was on duty in the area, and responded to help.  His body camera recorded a great deal of video useful to the defense, and his testimony was equally useful:

Chang had remarkably favorable testimony for the defense, perhaps most importantly that he perceived the growing and angry crowd as a prospective threat to the officers on scene.  Indeed, he described the crowd as ‘very aggressive’ to the officers. Unfortunately, not as much was made of this on direct of use-of-force expert Brodd as I would have liked to have seen.

Remember, the prosecution did its best to describe the crowd as peaceful and passive bystanders, who had no effect on the situation.

Even better than Chang’s actual testimony in court, however, is what was captured by his body worn camera.

First, the manner in which the footage of his camera continually panned left and right over the scene, from where he was tasked with controlling Hill and Hall by Floyd’s SUV, to across the street where the officers struggled with Floyd and then endured the insults and threats of the hostile crowd, was physical conduct that strongly reinforced his stated perception of the crowd as aggressive.

The commentary of Hill, Hall, and McMillian was particularly helpful to the defense.

Morries Hall was Floyd’s drug dealer who did not testify because his lawyer made it known he’d take the Fifth.

Hill can be heard exclaiming aloud: ‘Man, [Floyd] STILL won’t get in the car. Just get in George!’ and ‘WHAT is he doing? Now he’s going to go to jail!’

Floyd was passed out in the Mercedes, and Hall and Hill could not wake him before the police arrived.

Morries Hall can be heard muttering about Floyd: ‘He over there fighting with the law and sh!t!’

McMillian is overheard telling Hill and Hall: ‘I saw everything, [Floyd] f’d up. He f’d up. I tried to get him to get into the car, told him he can’t win.’

Shawanda Hill:  She was in the Mercedes with Floyd and Hall—she too might be a drug dealer–and her testimony made clear why she was not called by the Prosecution:

The most important part of her testimony for the defense was describing how Floyd was initially pretty regular in demeanor when he first attempted to pass a bad bill in the Cup Foods store, but that shortly after returning to the Mercedes SUV he suddenly fell asleep. Indeed, he fell into such a deep sleep that she could not rouse him, or when roused he immediately fell asleep again. It was bad enough that she gave up the idea of getting a ride home from Floyd, and called her daughter to come pick her up.

Why was he asleep?  Likely because the fatal drug dose he took, combined with his enlarged heart and clogged arteries, was depriving his brain of oxygen.  One would hope Nelson uses this probability well.

On cross-examination Hill surprisingly presented some difficulty for Prosecutor Frank.  At one point when he was having difficulty getting a straight answer from her, she kindly offered to explain if he liked.  He invited her to do so.

One of the basics of trial practice is never to ask a question to which you don’t know the answer, or let a witness ramble.  Bad idea, Frank:

Accepting his invitation, Hill immediately began a lengthy monologue about how Floyd had tried to pass a bad $20 bill, how he wouldn’t awake when police were knocking on his car window with a flashlight, how she was desperately trying to get him to rouse and comply with police, and—

At that point a horrified Prosecutor Frank abruptly interrupted her.

At which point she looked at him accusingly and said ‘YOU SAID EXPLAIN!’

Cross didn’t go any better for Frank after that.

Floyd fell asleep? Yes. But you woke him. Yes …. but then he fell asleep again.  But he did wake up? Yes … but he was not coherent at the time.

If one could have heard Frank’s thoughts, they would have gone something like: “oh shit; oh shit…”

Frank switched to asking if Floyd had expressed any chest pains, shortness of breath, other similar symptoms of a heart attack, which Hill said he had not.

So, other than being sleepy and nodding off, he seemed normal?  Yes, Hill agreed.

Well, OK – but does that mean normal for an opioid addict high on fentanyl?

Retired MPD Officer Scott Creighton:  He arrested Floyd on May 6, 2019 in another drug ingestion event, and even had body camera footage.  The relevant testimony doesn’t begin until about 4:30 in direct examination footage (by all means, take the link to this testimony and that of the remaining witnesses).

Creighton described Floyd as passed out in a vehicle.  Creighton had to draw on Floyd, because he refused to obey commands and wouldn’t show his hands, just as he behaved on the day he died.  The body cam video shows the officers ordering Floyd to spit out drugs, and they had to pull him out of the vehicle, just as on the day he died.  It would take a very dim, or politically motivated, juror not to see the pattern and make the connections.

Michelle Moseng: She is a paramedic who observed Floyd’s blood pressure at 216/160, again on May 6, 2019, which is dangerously/deadly high.  Her pertinent testimony doesn’t begin until about 2:30 in the video titled “Moseng Cross Examination.”

She testified Floyd was “upset and confused.”  Floyd told her he had been taking multiple opioids “every 20 minutes,” and also when the officers approached (to try to remove any evidence by overdosing himself!).  After taking his BP, they took him to the hospital.  Again, though her testimony was brief, the pattern of Floyd’s behavior over time was clear.

MPD Officer Nicole Mackenzie

Nicole MacKenzie: She’s the MPD medical training coordinator whose testimony for the prosecution was very helpful to the defense, so Defense Attorney Eric Nelson called her for his case in chief.  She testified “excited delirium” training was given to all officers only in the Academy, not thereafter, and she defined the term, using the common, broad ideas applied to that non-medical diagnosis.  Because the “symptoms” cover a very broad universe of behaviors, it was clear Floyd was exhibiting many of them, including great strength, violence, resistance, confusion and incoherence.  She said officers are trained to call EMS for such people, because they might go into “cardiac arrest.”  Nelson also established only Officer Lane, of all the officers present that day, would know this material.  Experienced officers like Chauvin, would not, indicating this curriculum is relatively recent to the MPD.

I won’t have the next article in this series up until Friday.  By then, the Defense may have rested.  If so, that will be followed by closing statements, judge’s instructions to the jury, and sequestration as they deliberate.  Absent unforeseen issues, they’ll likely begin their deliberations by mid-week.

Once again gentle readers, if the perspective I’m providing is useful, please spread the word about SMM, and I hope to see you Friday and every Day.