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At This Hour

Prosecution Gives Closing Argument in Chauvin Murder Trial. Aired 11:30a-12p ET

Aired April 19, 2021 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

STEVE SCHLEICHER, PROSECUTING ATTORNEY: Superhuman strength.

[11:30:00]

Nonsense, there is no superhuman strength. There is no superhuman strength. There are super humans impervious to pain, nonsense. You heard him, you saw him, he was not impervious to pain. It's nonsense.

Paraganglioma, suggestion that this tumor, which is literally called an incidental tumor, relatively rare, maybe causes headaches, did that cause his death at that particular moment in time, at that time, at that place after the restraint, after the subdual, after the nine minutes and 29 seconds, that tumor that causes headaches, that killed him? No. That's just a story.

And Dr. Rich specifically testified that he looked in George Floyd's medical records and did he not find references to headaches.

And you heard about carbon monoxide, the car killed him. When Dr. Tobin came back and explained, right, this car which had a catalytic converter, that was outside, that was hybrid and there was no evidence it was even on, right, that that did not kill him, okay? He explained carbon monoxide saturation -- I'm sorry, oxygen saturation level. And based on this calculation that oxygen saturation level of 98 percent, at most it could have been a 2 percent carbon monoxide, same as anybody else, same as people walking around talking, breathing. This wasn't carbon monoxide. That is just a story. And it's simply wrong.

You don't have to be Dr. Tobin to recognize this. It's probably nice to be Dr. Tobin, but you don't have to be Dr. Tobin to recognize this. You can see this with your own eyes. You can see what happened, that he couldn't breathe. He said he couldn't breathe. The defendant was on top of him, on his back, on his neck with his knees pressing down. Of course, you saw how his body just sort of deflated into the ground past the point of consciousness.

There were multiple moments in time, ladies and gentlemen, multiple moments in time that things could have gone different and George Floyd would have lived, CPR. If he would have left him on the side recovery position in the first place, or just placed him in the side recovery position shortly after the restraint, he wouldn't have died.

Their own force witness testified that putting somebody in the side recovery position is pretty fast, pretty easy thing to do, not complicated. No.

Professor said you just rotate them 90 degrees, quick, could have done that, relieve the pressure, could have done CPR, chest compressions, was supposed to, had a policy. He had a policy he was supposed to follow, right? A duty to provide medical aid, you're not just supposed to phone that in. You are actually supposed to use your training, provide medical aid. Even Dr. Fowler is critical. No one started CPR. So that should have been done.

The defendant knew how to do it. He had the training. He knew better. He just didn't do better. George Floyd didn't have to die that day, shouldn't have dude that day. But for the fact that the defendant decided not to get up and not to let up, George Floyd died.

And these actions were a substantial factor in George Floyd's death. And these actions, make no mistake, these actions were not policing, these actions were an assault.

So as the judge instructed you, for second-degree murder, and it's actually very simple, if you find that the defendant committed this third-degree assault while committing the assault, he caused George Floyd's death, the defendant is guilty of murder. That's the way felony murder works in Minnesota. So there are two elements, right, that the defendant assaulted George Floyd.

What does that mean? Assault is the intentional infliction of bodily harm upon another or the attempt to do so. Intentional infliction of bodily harm, that requires proof that the defendant intentionally applied unlawful force to another person without that person's consent and that the act resulted in bodily harm.

[11:35:06]

Intentional, did it on purpose, he did the thing on purpose. Bodily harm, physical pain, illness or impairment of a person's physical condition. So, again, to be very, very clear, the state does not have to prove that the defendant had an intent to kill George Floyd.

This was an intentional act that you see before you. He did this on purpose, and that's clear. He didn't, again, tripped and fall and find himself there. And this was also unlawful force. Officers are only authorized by law to use reasonable force, and this is not reasonable force, as I'll explain. And George Floyd clearly did not consent to having the defendant's knee on top of him for nine minutes and 29 seconds. When you hear someone gasping for breath, calling for their mother, begging you to get off, what -- how could you think anything else that he did not consent to this.

Now, the state does not have to prove -- well, we don't have to prove about intent. We don't have to show that the defendant intended to cause George Flowed harm, don't have to show. You don't need to find that the defendant was trying to cause harm or had the purpose to cause harm to conclude that this was an assault. You do not. State doesn't have to show that the defendant intended to violate the law. You don't have to show that. You don't have to show that the defendant intended to kill him. The only thing about the defendant's intent that we have to prove is that he applied force to George Floyd on purpose, that this wasn't an accident. And it's pretty simple. You know, if you're doing something that hurts somebody and you know it, then you keep doing it, you're doing it on purpose.

Somebody is telling you they can't breathe and you keep doing it, you're doing it on purpose. What else is going to happen when you push somebody down on the pavement? Everybody knows this. Everybody knows what happens when you push somebody against the pavement, right? You learn this pretty early on. We learn this pretty early on.

Assault in the third degree requires that the defendant inflicted substantial bodily harm on George Floyd, substantial bodily harm, meaning a temporary but substantial loss or impairment of the function of bodily member or organ, organs, the lungs, the heart, temporary loss of consciousness qualifies, a substantial bodily harm, certainly a permanent loss of consciousness. It would constitute substantial bodily harm. You look at this point in the restraint and you see that absence of expression, the absence of muscle tension, he's unconscious. He lost consciousness. That is substantial bodily harm. Who did that? That's his name.

So when you consider the charge of second-degree murder, try to break it down into parts, find an order, the defendant caused George Floyd's death. He did. The state proved that beyond a reasonable doubt. And at the time of causing the death, the defendant committed or was attempting an assault in the third-degree. And that's been proved beyond a reasonable doubt with those being proved in the venue. Second-degree felony murder, the defendant is guilty.

So, going back and talking about murder in the third-degree, you can see that there is some elements in common. There are some differences. We've already discussed the first element of the death of George Floyd, the substantial causal factor, the second element and then the fifth element about the venue element, I'll call it, May 25, 2020 in Hennepin County.

[11:40:05]

So, for third-degree murder, the difference for third-degree murder is that the defendant had to cause George Floyd's death by committing an act that was eminently dangerous and performed without regard for human life. And, again, the state is not required for this charge either to show that the defendant intended to kill George Floyd, that he committed an act that was eminently dangerous and performed without regard for human life.

And must prove -- the state must prove that the act was highly likely to cause death, that the defendant acted with a reckless disregard for human life, that this was -- he was consciously indifferent, consciously indifferent to loss of life that his actions could cause.

The defendant's act was eminently dangerous to others. It was likely to cause death to Mr. Floyd. And as if common sense in and of itself would not suffice, the dangers of prone restraint, of positional asphyxia has been known in the law enforcement community for about 30 years. This is known, if common sense wasn't enough. Defendant's own use of force witness admits that.

And, again, when we talk about danger, what is the danger, the potential danger of positional asphyxia is death. The medical experts that know a thing or two, right? Dr. Tobin, Dr. Smock, Dr. Rich, they agree, the defendant's actions created a high risk of death. And the defendant consciously disregarded the loss of life that his actions could cause and did cause. He knew the risks of positional asphyxia due to this position. Everybody in law enforcement knows that. And he had other warnings, not just from his training, he had other warnings from people.

Right, it was plain and apparent to everyone that was there what was happening. He is going unresponsive. He's passed out. He's not talking. What are you doing? We know that the defendant chose not to listen to bystanders, not to these bystanders, but how about to fellow officers on the scene?

Roll him on his side? Staying put where we got him, that is what the defendant said. He's staying put where we got him. Roll him on his side means roll him into the side of a recovery position. He could have listened to the bystanders. He could have listened to fellow officers. He could have listened to his own training. He knew better. He just didn't do better. He knew that kneeling on somebody's neck, in addition to the positional asphyxiation, just the pressure, is dangerous. Anyone can tell you that. A nine-year-old can tell you that, did tell you that.

Conscious indifference, indifference? Do you want to know what indifference is and sounds like?

Indifference, leisurely picking rocks out of the tire, commenting about the smell of a man's feet who you're pressing down, grinding on as his voice slows, fades, as he tells you, you're going to kill me.

[11:45:07]

I can't breathe. My stomach hurts, ah-ha. My neck hurts, ah-ha. Everything hurts. It takes a lot of oxygen to complain about it. Indifference, did the defendant ever listen, ever

consider medical attention? Knowing the defendant that decision, the failure to give CPR, not even Dr. Fowler, this isn't protection, this isn't courage and it certainly, certainly is not and was not compassion. It was the opposite of that.

So, back to the instructions and the elements of third-degree murder, when you're deliberating, ask yourselves, did the defendant cause the death of George Floyd by an intentional act that was eminently dangerous to others? Absolutely. The state proved that.

Did the defendant act with the mental state consisting of reckless disregard for human life? A conscious indifference to the loss of life that the dangerous, the eminently dangerous act could cause? Yes, he did. And you will find based on that that the state has proved the defendant is guilty of third-degree murder as charged.

So, back to the charges, let's talk about manslaughter in the second- degree. And, again, you can see that there is some elements in common, the first, the third is in common with the other charges. So what's different about manslaughter in the second-degree? Is that the defendant caused the death of George Floyd by culpable negligence, culpable negligence, where created an unreasonable risk and consciously took a chance of causing death or great bodily harm.

And, again, you do not need to prove, the state does not need to prove that he intended to -- that he intended to kill George Floyd. Culpable negligence, intentional conduct, that the defendant may not have even intended to be harmful but that an ordinary and prudent, reasonably prudent person would recognize is involving a strong probability of injuries to others.

You can look for yourself and you can see exactly what was happening. The bystanders who were at the scene looked for themselves and it was plain to them. They took video. You saw it. It was plain to you, strong probability of injury. And with the defendant, his specialized knowledge about the dangers of positional asphyxia and the common sense that if you put your knee on somebody's neck, there is a strong probability of injury, he knew that too, create bodily harm, bodily injury that creates a high probability of death, permanent or protracted loss or impairment to the function of a bodily member or organ, the heart, the lungs, the loss of consciousness.

Would an ordinary and reasonably prudent person know that this is dangerous? Everybody who watched knew it was dangerous. A nine-year- old saw that it was dangerous. The defendant knew exactly what he was doing because he was right on top. He was right on top of him.

But his negligence goes beyond his intentional assault of Mr. Floyd. His negligence includes his failure to act in your custody means in your care, in your custody means in your care. There is a duty to provide medical assistance. That duty includes not only calling the ambulance for somebody else to do, it means that you have to use your knowledge, your training as a first responder. You're required to perform CPR. It's a requirement. He failed to do it. He had the training.

[11:50:00]

He knew how to do it. You have seen the training records, it's Exhibit 119. You can take a look at all of the in-services, all of the hours. He knew what to do. He just didn't do it. He knew better. He didn't do better.

He wouldn't even let Genevieve Hansen, the off-duty firefighter, do it. If he wasn't going to do it himself, let somebody else do it, but he didn't. He had the knowledge, he had the tools, he just ignored it.

So when you consider this charge that the defendant caused George Floyd's death by culpable negligence, where he took an unreasonable risk and consciously took a chance of causing death or great bodily harm, you will find that element has been proved beyond a reasonable doubt, that he is guilty of second-degree manslaughter, guilty of all three charges.

So, after all of this, you have another question you have to address, after seeing all of this, finding the assault, finding the murder was committed, the manslaughter was committed, you have another thing to consider and that is, was this just okay? Was this fine? Is this okay because the defendant was a police officer? Was this an authorized use of force? Was it justified? Was it justified? It was not.

Let's look at the instruction of the kind and degree force a police officer may lawfully use in executing his duties it's limited by what a reasonable police officer in the same situation would believe to be necessary and force beyond that is just not reasonable. When you look at the facts that a reasonable police officer in the same situation would have known at the precise moment that the officer acted with force, right, you're looking at all of the totality of the facts and circumstances to see whether these actions, the defendant's actions were objectively reasonable.

Was this objectively reasonable? No. And you saw the instruction that the law does not provide an excuse for police abuse. It does not.

Let's start with the basic of premises because that's very important. That restraining George Floyd in this manner on the ground, prone, handcuffed, knee on the neck, knee on the back, body weight on top of him, start with the premise that that, in fact, was a use of force. The defense called a witness who actually testified that that was not a use of force because that is not likely to produce pain. No. No, not true. Likely to produce pain actually produced pain.

You know, the problem with terms like superhuman, superhuman strength, you forget those people don't exist. Humans feel pain. Human beings feel pain, human beings need to breathe. Don't accept any notion to the contrary. You need to reject that testimony. You need to reject it.

And let's discuss the standard what would a reasonable police officer do. What would a reasonable police officer do? You don't look at this from George Floyd's perspective, okay? It's not what a reasonable victim will do. You don't look at it from the bystanders' perspective, what a reasonable bystander will do. But under the law, you don't look at it from the defendant's perspective either. You look at it from the perspective of a reasonable officer and the evidence in this case has shown over and over that the defendant is not that officer because he did not act as a reasonable officer would.

Remember Charles McMillian? Well, the defendant explained his actions, he explained the basis of his actions to Charles McMillian. You'll recall that. Here is what he said.

That was his justification for using this level of force. He's a big guy, he's a sizable guy, he might be on something, we have to control him. Control is the restraint. So that's the force. His two justifications were that George Floyd was big and that he might be on something.

[11:55:04] Well, you know the standards, you've heard the standards many times, you know the difference between a risk and a threat. Officers are authorized to use force to respond to a threat. They're not authorized to use force to respond to a risk.

Anybody poses a potential risk, big, small, in between, everybody is a risk. Not everybody is a threat. Being large, the act of being large, it's not a crime, it's not a risk -- I'm sorry, it's not a threat. It's merely a risk. Being on something, being on something, it's not a threat. It may be a risk but it's not a threat. And force is not authorized against someone merely because they're on something.

And when questioned, their force expert witness conceded that the combination of the two being large and being on something is not a justification for the use of force. It just isn't. That's not what they get to do, right? So, the defendant's entire basis, his explanation to Charles McMillian, at the time, at the scene, right afterwards, after he got up off of Mr. Floyd, tossed him on the gurney and walked away like it was nothing. That was his explanation. It's not good enough. That's not procedure. That's not the use of force policy. It's not following the rules.

We talked a lot about things that might have happened, could have happened, potentials, hypotheticals, we talked about a lot of stuff that didn't happen. We need to focus on what did happen, what did happen. George Floyd was not a threat. He never was. He wasn't resisting. He just wasn't able to comply. They should have recognized that. They should have recognized that. They do it all the time.

They had him handcuffed, they had plenty of resources, they had four officers, they had a fifth one off in the distance. He was handcuffed behind his back. He wasn't going anywhere. He wasn't doing anything. He didn't need to be put in the prone position, that's a temporary position to facilitate handcuff. But the defendant was on top of him, stayed on top of him, grinding his knees into him, pressing down on him, continuing to twist his arm, twist his wrist so it would buck up against the handcuff, a pain compliance technique without the opportunity to comply is simply the infliction of pain, not a reasonable use of force.

And that's not authorized by the Minneapolis Police Department. Kneeling on top of someone on their neck and back, effectively, they were using a maximal restraint technique, effectively. Remember hobble, the rip hobble? You heard about that. They considered using it or thought about using it, decided not to. They didn't need to because he wasn't doing anything that would warrant it. But if you're going to restrain someone like that completely and holding down, the policy authorizes the use of hobble, the rip hobble. They didn't do that.

The policy about applying the rip hobble is, again, you have to put the person immediately in the side of a recovery position. You know, why didn't they do that? The conduct didn't warrant it. They knew it. They didn't want to have to get a sergeant down there to have to do a force review. It's Memorial Day. You heard that comment. They talked about that. So they just held him in this dangerous position against policy. A reasonable officer wouldn't do that. A reasonable officer follows the rules. A reasonable officer follows the training. The force that carries a risk of death is deadly force. And you recall the MPD defense tactics and control guide, like deadly force is just not authorized in this

situation, no force when someone is passed out on the ground unresponsive. No.

You really can't even claim that Mr. Floyd was engaged in passive resistance at this point. Remember Charles McMillian who kept saying, get up and get it in the car? Get up and get in the car. And George Floyd said, I will. I can't. He doesn't even have the opportunity. He's saying he will get up and get in the car.

[12:00:01]

He isn't given the opportunity to do that. That's not resistance. That's compliance, at least an attempt to comply. Force must be reasonable.