Derek Chauvin Trial 4/13/21: Defense launches case for ex-cop charged in George Floyd's death

On redirect questioning by defense attorney Eric Nelson, Brodd agreed that a crowd has the potential to pose a threat even if they appear calm. Brodd also said a reasonable officer would take into consideration that someone who has passed out might wake up and continue their struggle. That should cause an officer to be "aware and more concerned."

Prosecutor Steve Schleicher then asked whether Brodd had seen the autopsy photos showing scrapes on Floyd's shoulder and face.

"Someone trying to lift their body up with their face off the pavement would cause pain, wouldn't it?" Schleicher asked.

"It could cause pain," Brodd replied.

"The only struggle you saw Mr. Floyd doing after he was restrained was struggling to breathe, isn't that right?" Schleicher asked.

"I don't know if he was struggling or struggling to catch a breath, I can't tell," Brodd replied.

The jury was excused for the day following Brodd's testimony.

Schleicher began walking through short clips of the police body camera video, beginning from when Floyd was first restrained on the ground, and asking whether the bystanders posed a distraction to officers. At one point, Schleicher asked whether Brodd agreed Chauvin didn't stop kneeling on Floyd's neck even though Floyd had become compliant.

"More compliant," Brodd answered.

When Schleicher asked what Floyd was doing at that point that was not compliant, Brodd noted the position of Floyd's arms and said his hands should be in the small of his back, "resting comfortably."

"Did you say resting comfortably?" Schleicher asked with a raised voice. "Resting comfortably on the pavement at this point in time when he's attempting to breathe by shoving his shoulder into the pavement?"

Schleicher asked, "attempting to breathe while being restrained is being slightly non-compliant?"

"No," Brodd asked.

Later, after Floyd lapsed into unconsciousness, Brodd admitted he was no longer resisting and was not breathing, yet Chauvin did not change his position.

On redirect questioning by defense attorney Eric Nelson, Brodd said pointing to short clips amounts to "picking and choosing" and isn't reflective of the entire incident.

In response to a question by Schleicher, Brodd said Floyd was actively resisting for several minutes while he was on the ground by "struggling against the officers."

Schleicher brought up Brodd's previous testimony during which he suggested an officer might believe someone saying "I can't breathe" could be faking it if they were seen to be breathing. Schleicher asked whether it would be important for an officer to take into account the context if someone said "I can't breathe" while being restrained in a position known to be a risk for positional asphyxia.

"Wouldn't a reasonable police officer at least acknowledge and consider that what they're doing is causing a problem?" Schleicher asked.

Brodd said a reasonable officer should assess what Floyd was doing while he was making the statements.

"It would appear to me Mr. Floyd was still struggling," Brodd said.

"Struggling or writhing?" Schleicher asked.

"I don't know the difference," Brodd responded. He said a reasonable officer should consider that Floyd struggled with officers before the restraint and was continuing to struggle.

On cross examination by prosecutor Steve Schleicher, Brodd agreed that if a prone restraint is inflicting pain on a person, it would be considered a use of force. Looking at a picture of Chauvin restraining Floyd, Brodd said Chauvin's knee was on Floyd's "upper spine and neck area."

Schleicher asked whether he believed Chauvin's position was unlikely to produce pain. Brodd admitted that it could. Asked to look again at the picture, Brodd said, "In this picture, that could be a use of force."

Dangers of positional asphyxia due to being restrained in the prone position are a known risk, Brodd admitted. He agreed it's something he's taught to police officers over the course of his career, and has been aware of the dangers since the late 1980s.

He agreed placing a person on their side was a commonly known practice to reduce the risk.

Schleicher asked whether Brodd knew that Minneapolis police policy defines restraint as a use of force. Brodd agreed that Chauvin's restraint could be considered a use of force under department policy. 

In terms of range of criminal offenses, Brodd agreed a call for a fake $20 bill is on the "less serious" side. But he qualified his answer, "It's all about the contact and the resistance of the suspect."

Brodd agreed that any person can present a risk of danger, but a threat would require some kind of indication of an intent to do harm. He agreed that officers are allowed to respond with force to a threat, but not a risk.

Brodd also agreed that someone being on drugs doesn't justify use of force unless the suspect's behavior warrants it. And he agreed an outside distraction would not be a justification for a use of force against someone who is not directing those activities.

Brodd said it's a common misconception among officers that if someone is talking, they're breathing. Chauvin made a similar statement to Floyd as he was being restrained.

"If somebody says 'I can't breathe,' yet they appear to be taking full breaths and shouting, to me as a layperson, they can breathe," Brodd said.

He described the prone restraint as a "control technique" rather than a use of force, intended to keep both the officer and the suspect safe. Brodd said he understood Minneapolis trains officers to place restrained people on their side as soon as possible. He said he believed officers were justified in keeping Floyd in the prone restraint because of the space restrictions between the squad car and the street, because Floyd was "still somewhat resisting" and because of the crowd growing more vocal.

Brodd said officers are trained to deal with the "bigger threat" in any given scenario, which he said in this case was the crowd of bystanders.

"I could see that officer Chauvin's focus started to move from Mr. Floyd to the crowd," Brodd said. "At one point he felt threatened enough, he drew his pepper spray. So now he's dealing with the bigger threat."

Brodd said he did not believe the force Chauvin used on Floyd was deadly. When asked to explain, he described a scenario where officers used a Taser on a domestic abuse suspect who was resisting arrest. The hypothetical suspect then fell, hit his head and died. Though the suspect died, Brodd said the use of the Taser on the suspect was justified by his resistance.

Brodd said he trains officers to keep people under the influence of drugs handcuffed because they have the potential to display erratic behavior. "They may go from compliant to extreme non-compliance in a heartbeat," Brodd said.

He said officers need to keep their "head on a swivel" to assess potential threats around them. Brodd said officers need to take into account any other threats in a given scenario. 

Asked about Floyd's struggle with officers trying to get him inside the squad car, Brodd said he felt the use of force officers use at that point was objectively reasonable because of Floyd's resistance. He said the resistance could have justified higher uses of force at that point, but the officers chose not to.

When asked about Floyd's restraint on the ground, Brodd replied, "I don't consider a prone control as a use of force." He said Floyd continued resisting while he was on the ground, and at one point appeared to kick officer Thomas Lane. He said bringing someone resisting arrest to the ground is justified in order to control them, whether or not they are handcuffed.

"Any resistor, hands cuffed or not, should go to the ground in a prone control position," Brodd said.

Brodd was formerly a police trainer in Santa Rosa, California, giving in-service training to licensed officers in defensive tactics, crowd control and other topics. He is now a private consultant on cases involving use of force, and has testified in 10 previous criminal or civil trials.

He analyzed Chauvin's actions for the defense, focusing his review on the videos, use-of-force policies and training. Brodd said he believes Chauvin was justified, acting with objective reasonableness and following Minneapolis police training.

Court has resumed session after a lunch break. Defense use-of-force expert Barry Brodd is being questioned by defense attorney Eric Nelson.

Minneapolis police medical support coordinator officer Nicole Mackenzie was called back to the stand to testify for the defense Tuesday. She had previously testified for the prosecution. 

Defense attorney Eric Nelson asked Mackenzie to describe the academy training she provides to police cadets about excited delirium. Judge Peter Cahill cautioned jurors that Chauvin, as a veteran officer, had not received the particular training, but Thomas Lane, as a new officer, had. Chauvin said Mackenzie's testimony was for the limited purpose of explaining why Lane mentioned the condition during Floyd's fatal arrest.

Mackenzie testified she uses an acronym "NOT A CRIME" to help officers treat the condition as a medical diagnosis, not criminal activity. She said the condition is often associated with illicit drug use and causes a subject to be confused, resistant and incoherent. Mackenzie said she teaches officers that excited delirium can be associated with mental health diagnoses and that it requires immediate medical attention because it can cause cardiac arrest.

Mackenzie agreed with Nelson that officers are trained to physically restrain individuals they believe might be suffering from the condition until EMS arrives. On cross-examination by the prosecution, Mackenzie said she trains officers to turn restrained individuals on their side.

The trial then paused for a lunch break.

Minneapolis Park Police officer Peter Chang testified he responded to the scene and looked up Floyd's background information in his car at the request of officer J. Alexander Kueng.

Chang said he saw Kueng and Lane pinning Floyd against the squad car and approached them to see if he could assist, and former officer Thomas Lane asked him to check out the car Floyd had been driving.

Defense attorney Eric Nelson played Chang's bodycam video in court. It shows Chang approaching Floyd's friends, Shawanda Hill and Morries Hall, standing near Floyd's car across the street and around the corner. Chang is heard telling them to step away from the car and "stay put." Hill and Hall said the car belonged to Floyd's friend and Floyd had been giving them a ride.

"Damn, he still won't get in the car, just sit down dude," Hill is heard saying, apparently referencing Floyd's struggle with officers who were trying to get him inside the squad car.

Chang is heard saying, "He's making it more difficult."

Later, as a crowd begins to grow, Hill and Hall become more concerned about Floyd and ask what's happening. There was apparently not a clear line of sight to where Floyd was being restrained on the ground from the corner where Hill and Hall were standing with Chang. Hill is heard saying, "They did something to him --- people are taking pictures over there."

As the voices from the crowd grow louder, Hill asks, "They hurt him?"

"He might have hurt himself, all right, who knows," Chang replied.

"Can I just see what y'all did to him? He's on the ground and everything," Hill replied. 

"He's on the ground? Where?" Hall asked Hill. 

Later, Hall is heard yelling, "Why is he going to the hospital?"

Responding to questions from Nelson, Chang said the crowd was "very aggressive towards the officers."

"I was focused on [Floyd's] car, but it distracted me, and I was concerned for the officers' safety, too," Chang said.

Floyd's friend Shawanda Hill has testified for the defense. She said she ran into Floyd at Cup Foods on May 25, 2020, just before the fatal arrest.

She described his behavior in the store as "normal, talking, alert." Hill said she went to Floyd's car when he offered her a ride.

Hill testified Floyd suddenly fell asleep as she was talking with him in the car. Hill said she tried to rouse Floyd several times.

"He woke up, made a little gesture and nodded back off, he did that a couple times," Hill said.

Hill said Floyd told her in the store he was tired because he had been working, but the jury was ordered to disregard the opinion.

On cross-examination by prosecutor Matthew Frank, she described trying to wake Floyd up as police approached the car. When an officer drew his gun on Floyd, "he instantly grabbed the wheel, and was like, 'Please, please don't kill me…"

When Frank interrupted Hill's description of Floyd's reaction to the gun, she said, "You said explain what state he was in, sir."

Frank asked whether Floyd seemed startled by the gun. Hill replied, "Very."

Retired paramedic Michelle Moseng testified she responded to treat Floyd at the Minneapolis fourth precinct after his May 2019 arrest. She said Floyd told her he had been taking pills "every 20 minutes." She said Floyd told her he had been taking opioids, but she felt  it wasn't consistent with his behavior because he seemed agitated.

The jury was told to disregard her opinion about Floyd's behavior. Prosecutors had also objected earlier when Moseng said, "It was quite hard to assess him, he was upset and confused."

Moseng said Floyd told her he took drugs at the time he was being arrested, she told defense attorney Eric Nelson.

On cross-examination by prosecutor Erin Eldridge, Moseng said she took Floyd's blood pressure, which was elevated at 216 over 160. She recommended he be transported to the hospital, but he was resistant, Moseng agreed.

Initially he denied medical issues, but he told her of a history of hypertension and said he had not been taking his blood pressure medication for months, Moseng agreed. She said Floyd told her he took 7-9 Percocet pills and said he was addicted.

Eldridge walked through a series of other medical assessments that Moseng performed on Floyd, and Moseng agreed they were normal. Moseng agreed Floyd was able to walk and stand up. She agreed Floyd didn't stop breathing and his heart didn't stop, and was never given Narcan, which counters opioid overdoses. 

Eldridge asked whether Floyd was monitored at the hospital for two and a half hours and released. "I don't know," Moseng replied.

The defense has played body camera video of the 2019 traffic stop involving George Floyd. During the traffic stop, Floyd, who was a passenger in the car, was "non-responsive to my commands" and was taken from the vehicle and handcuffed, Creighton testified. He said he appeared "very nervous and anxious."

Creighton said he pulled his weapon when Floyd wouldn't show him his hands. In the video, Creighton raises his voice as he commands Floyd to show him his hands and uses an expletive. Floyd can be heard asking the officer not to shoot him. 

"I'm not going to shoot you if you put your hands on the dash, it's the last time I'm going to tell you, it's simple," Creighton says on the video. "He keeps moving his hands around, he won't listen to what I have to say."

Another officer on the driver's side of the car is heard saying, "Spit out what you got -- I'm going to tase you." It wasn't clear whether he was addressing the driver or Floyd.

Floyd is taken from the car and handcuffed. He can be heard saying, "I apologize."

Under cross-examination by prosecutor Erin Eldridge, Creighton admitted he and another officer gave Floyd different commands, including for him to put his hands on his head and the dash.

Eldridge asked whether Floyd was awake and talking throughout the interaction.

"Floyd didn't drop dead while you were interacting with him, correct?" Eldridge asked. Creighton replied he did not.

Retired Minneapolis police officer Scott Creighton is the defense's first witness. Before Creighton began his testimony, the judge cautioned jurors that Creighton would describe a 2019 traffic stop during which George Floyd allegedly ingesting opioids. He said the testimony should be viewed only for the purpose of what physical effects opioids had on George Floyd, not as a reflection on his character.

The prosecution rested its case against fired Minneapolis officer Derek Chauvin Tuesday after 11 days of testimony. Defense attorney Eric Nelson is now beginning his case.

Prosecutors are objecting to additional bodycamera footage being introduced from a park police officer who responded to the scene, calling it "not relevant" and "full of hearsay."

Officer Peter Chang of the Minneapolis Park Police Department interviewed nearby witnesses but was not involved in George Floyd's fatal arrest.

Defense attorney Eric Nelson argued the interaction between the officer and passengers in the car George Floyd was driving is relevant to the case. It also shows "another officer's reaction to what was going on" in relation to the growing crowd of bystanders.

Judge Peter Cahill allowed a redacted version of the video to be introduced. The jury was expected to be called in to continue with testimony at 9:30 a.m. local time (10:30 a.m. ET.)

Court has resumed session Tuesday morning with a motions hearing. The jury has not yet been called into the courtroom.

George Floyd's brother Philonise Floyd took the stand Monday, one of the prosecution's last witnesses to testify. He cried when he described his brother's "one of a kind" relationship with their late mother.

Philonise Floyd identified several photos of his brother, one showing him with his daughter Gianna, now 7, and one showing him on his college basketball team, a sport he enjoyed his whole life. He said he recognized a photo of his late mother with George Floyd as a child, at first nodding and smiling and then tearing up. "I miss them both," he said.

He said George Floyd loved their mother "so dearly" and described their relationship as "one of a kind." He said Floyd taught his siblings how to love and respect their mother.

"Every mother loves all of her kids, but it was so unique how they were with each other, he would lay on her in the fetal position like he was still in the womb," Philonise Floyd said.

Their mother died in 2018, leaving George Floyd devastated, he testified. Philonise Floyd said George Floyd didn't want to leave as he stood by his mother's casket, saying over and over, "Mama." Floyd said the same words as he was being pinned to the ground by Minneapolis police officers during his fatal May 2020 arrest.  

Before the jury was called into the courtroom Monday, a judge denied a defense request for the jury to be further questioned and sequestered in light of the fatal police shooting Sunday of a driver in nearby Brooklyn Center, which led to protests and unrest. He told the jury to expect to be sequestered for deliberations beginning April 19, following closing statements.  

Defense attorney Eric Nelson argued the shooting "brings to the forefront of the jury's mindset that a verdict in this case is going to have consequences."

Prosecutors argued the jurors were already asked whether they were so concerned about the outcome that they would not be able to render an impartial verdict. All agreed they would be able to set aside their concerns and deliberate impartially.

Cahill said the Brooklyn Center shooting is a "totally different case." He said a sequestration order now might cause further unease over safety concerns from the jurors.

A series of Minneapolis police officials took the stand last week to testify that Chauvin violated department policy and didn't follow training. The most high-profile voice was Minneapolis Police Chief Medaria Arradondo, who condemned Chauvin's actions in his testimony April 5.

Arradondo said there was an "initial reasonableness in trying to just get [Floyd] under control" in the first few seconds of the May 25 encounter. But when Floyd had stopped resisting, and "clearly when Mr. Floyd was no longer responsive and even motionless, to continue to apply that level of force to a person prone out, hands cuffed behind their back — that in no way, shape or form is anything that is by policy," Arradondo said. "It's not part of our training and it's certainly not part of our ethics or values."     

Chauvin is charged with second-degree murder, third-degree murder and second-degree manslaughter.

In order to convict Chauvin of second-degree murder, prosecutors will need to prove beyond a reasonable doubt that Chauvin caused Floyd's death while committing or attempting to commit a related felony, in this case third-degree assault. To convict the former officer of third-degree murder, prosecutors must convince the jury that Chauvin caused Floyd's death during an act that was "eminently dangerous to others and evincing a depraved mind, without regard for human life." 

The third-degree charge was initially dropped by Judge Cahill, but was re-instated earlier this month after an appeals court handed a win to prosecutors.

To convict Chauvin of second-degree manslaughter, prosecutors will need to prove beyond a reasonable doubt that Chauvin caused Floyd's death by "culpable negligence," meaning he created unreasonable risk and consciously took a chance of causing death or serious harm.

Prosecutors do not need to prove that Chauvin intended to cause Floyd's death. Since police officers are authorized to use force, prosecutors must prove that the force Chauvin used against Floyd was unlawful.

In Minnesota, second-degree murder carries a maximum sentence of 40 years in prison. Third-degree murder is punishable by up to 25 years. Second-degree manslaughter carries a maximum prison term of 10 years.