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The Lead with Jake Tapper

Prosecution Gives Rebuttal to Defense's Closing Argument. Aired 4-4:30p ET

Aired April 19, 2021 - 16:00   ET

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

[16:00:04]

JUDGE PETER CAHILL, HENNEPIN COUNTY, MINNESOTA DISTRICT COURT: Members of the jury, there's an issue I need to discuss with the lawyers, so we're going to send you back to your room for probably about five minutes.

(INAUDIBLE)

CAHILL: All right. Immediately before the court was ready to resume, the state indicated they wanted to talk in chambers but for curative instruction there's no need to go into the chambers. What's your motion?

SCHLEICHER: Your Honor, the state --

CAHILL: You can be seated. But we need you near the microphone.

STEVE SCHLEICHER, PROSECUTING ATTORNEY: Thank you, Your Honor.

Your Honor, the state requests a curative instruction as to the issue of intent, I believe that the counsel made a misstatement of law when he indicated and argued that the defendant had to intend to apply unlawful force as in he had to intend that the force he was applying to be unlawful.

That's not a correct state of the law pursuant to Dorn (ph) at 88 Northwest 32nd 826. The state need not show that the defendant meant -- meant to or knew that she would violate the law. That is what Mr. Nelson argued before the jury, and so, we're requesting the court give a curative instruction to the jury as follows, that it is not necessary for the state to prove that the defendant intended to act unlawfully, only that the defendant intentionally applied force to another that this application of force was unlawful and that this application of force resulted in bodily harm. I believe that's a correct statement of the law.

CAHILL: Which is contrary to what the court instructed in the first set of instructions.

SCHLEICHER: Your Honor, I believe the court's instruction was that the intentional infliction of bodily harm requires that -- proof that the defendant intentionally applied unlawful force to another person without that person's consent and that this act resulted in bodily harm. You did not instruct that the defendant need to intend that his force was up lawful, merely that he intended to apply the force by was unlawful.

CAHILL: I will deny the request for curative instructions. I will re- read before the beginning of rebuttal statements of judges and attorneys which starts at the bottom of page 2 and goes on to page 3 which specifically states that if an attorney's argument contains any statement of the law that differs from the law I give you disregard the attorney's statement. I'll re-read that and turn over Mr. Blackwell who I assume will answer this exact question or this exact issue in his rebuttal.

SCHLEICHER: We do ask the court's guidance on another issue that Mr. Nelson argued, quote, Mr. Chauvin thought that he was following his training. There's no -- there's no testimony from Mr. Chauvin and he didn't argue that they could infer that. He argued that had they thought that. Placing that in context puts us in a difficult position in that we can't comment on his failure to testify but that statement is directly at odds with the evidence in the record.

CAHILL: Mr. Nelson, any response?

ERIC NELSON, DEFENSE ATTORNEY: Read the quote, Steve. Excuse me.

CAHILL: Mr. Chauvin thought he was following his training.

NELSON: What was the context that I said that in?

SCHLEICHER: Well, it was -- in your use of force discussion. You were talking about a reasonable officer following his training, you indicated that Mr. Chauvin thought he was following his training.

NELSON: I don't recall saying it, Your Honor. I mean --

CAHILL: Even if you did, it was drowned out by a reasonable officer. I think it's reasonable inference. Even the statement to Mr. McMillan essentially was in the indirect way of saying he was following his training. It's reasonable inference for current counsel to argue from the evidence and to respond to that specifically by saying there's no evidence would in fact be commenting on his right to remain silent, a bind the state always in.

[16:05:06]

So -- but as far as the other issues, can you talk about requoting what the elements are on assault in the third degree and also anything else that you think was a misstatement of law. I will read them -- the statements of judges and attorneys, if you wish.

And actually before I do that, do you want me to read that, re-read that, or should I --

SCHLEICHER: Yes, Your Honor.

CAHILL: I don't want to force it on, you but that would be -- that would be any statement of law that differs from mine should be disregarded. SCHLEICHER: And we also ask that you re-read the instruction on

causation because I believe whether what Mr. Nelson argued is that the state is required to prove beyond a reasonable doubt that the other issues that he spoke about had no effect, right, had no causal connection, and that is not the law.

CAHILL: I'm not going to single out that instruction and re-instruct on that. I'm going to read them the general one, that if it differs and I'm sure Mr. Blackwell will point out in great detail how Mr. Nelson misstated that.

SCHLEICHER: Yes, Your Honor.

CAHILL: All right. Bring the jury back.

(INAUDIBLE)

NELSON: -- principal argument, in terms of contradicting the -- the defense argument, the statement comments about essentially the nonsense of the defense in this case, and it is --

CAHILL: I know what you're going to say. We'll hold that thought.

All right. Be seated.

Mr. Blackwell, you may begin the state's rebuttal.

Members of the jury, before Mr. Blackwell begins, I'm going to re-read one of the instructions, and that is specifically that attorneys are officers of the court, and it is their duty to make objections they think proper and to argue their client's cause.

However, the arguments or other remarks of an attorney are not evidence. If the attorneys or I have made or should make any statement as to what the evidence is that differs from your recollection of the evidence, you should disregard that statement and rely solely on your own memory. If an attorney's argument contains any statement of the law that differs from the law I give you, disregard the attorney's statement.

Mr. Blackwell?

JERRY BLACKWELL, SPECIAL ASSISTANT ATTORNEY GENERAL: Thank you, Your Honor.

Good afternoon, ladies and gentlemen.

The last person lawyer I think talking to you will be close will be me, and I won't be too long. I want to start talking to you about when I called the 46th witness. You actually have heard from 45 witnesses on the stand, but there's a 46th witness, and this witness was testifying to you before you got here to the courtroom.

They testified over everybody else's testimony on the stand as the only witness will be talking to you back in deliberation, and that witness, ladies and gentlemen, is common sense. Common sense. We'll continue talking with you all the while because while you've

heard hours and hours and hours of discussions here in the closing, ultimately, it really isn't that complicated, and what it is you have to decide with respect to the excessive use of force and the issue of causation.

In fact, it's so simple that a child could understand it. In fact, a child did understand it when the 9-year-old girl said get off of him. That's how simple it was. Get off of him. Common sense.

Why is it necessary to continue applying deadly restraint to a man who is defenseless, who is handcuffed, who is not resisting, who is not breathing, who doesn't have a pulse and to go on do and that for another three plus minutes before the ambulance shows up and they continue doing it. How is that a reasonable exercise in the use of force?

You can believe your eyes, ladies and gentlemen.

[16:10:01]

It was what you thought it was. It was what you saw. It was homicide.

Now, Mr. Nelson spent quite a bit of time saying to you, perform an honest assessment. Look at all the evidence, consider all of it. Reasonable officer -- reasonable officers is not magic words that you simply apply to Officer Chauvin and he becomes a reasonable officer because you apply those words.

Reasonable is what reasonable does. And here, what you saw wasn't reasonable and you didn't get the whole truth. Notice how when you had the discussion about reasonable officer, Mr. Chauvin, the whole narrative cut off before we get to the point that Mr. Floyd was not moving, that he was not conscious, that he didn't have a pulse, and that Mr. Chauvin was still on top of him when the EMTs showed up and still didn't get off of him.

How is that what a reasonable officer does? And then, if you look at totality of the circumstances which you heard so much about, why doesn't that tell you exactly where he's coming from, if we're talking about a reasonable officer?

Now, you heard any number of other things that in looking at the totality of circumstances and trying to do an honest assessment, you didn't get the whole story either. You got bits and pieces and parts, and I call them a story, ladies and gentlemen, because it's either completely not true, or the facts have been altered in order to make a point to you which also makes it a story.

What you're going to reach when you all deliberate is the a verdict. Verdict is a Latin word that means the true. You're not going to reach a story, when all is said and done. You're going get at the truth while we engaged in telling stories, when we've heard evidence and facts from the stand. Why is that?

But you just heard a number of them. I'll give you a few examples of the stories. You were just talked to about how safe the prone position is and you've heard this in the trial. The prone position is safe.

Here are the Canadian studies. After everything you've head, you already know now that not a single one of those studies ever examined anybody who had a knee on the neck. You know that.

You also know that about the so-called prone studies. None of them actually measured what was the oxygen reserve, that is, how is the oxygen actually being affected by putting somebody in the prone position and any amount of weight on it. Never even measured it.

You know, that too, although that wasn't brought up when you were being told about the studies to show that the prone position is safe.

You heard about excited delirium. There was not a single witness who sat in that chair and gave you testimony under oat and told you that they thought that Mr. Floyd suffered excited delirium, not one.

One of the criteria for excited delirium is the person is impervious to pain. They don't feel pain. They are not people saying my neck hurts. My knee hurts. Everything hurts.

They are not grimacing because their wrist hurts for excited delirium. That's a fact. If that's a fact, why are we talking about it? Why isn't that said if you're going to be hearing about excited delirium.

Then we turn to Dr. Baker, for example, where there's a discussion of homicide and were you told that homicide was a medical term. That's not what Dr. Baker said. Dr. Baker said homicide means killed at the hands of another. It means at hands of another is what homicide means.

At the hands of another, and he was pretty clear in discussing the cause of death. He said it was cardiopulmonary arrest complicating law enforcement subdural, restraint and neck compression, and he did explain what complicating means. He said it means in the environment of, so it reads as though cardiopulmonary arrest in the environment of law enforcement subdual, restraint and neck compression.

What you were just told, and that was attributed to Dr. Baker as to somehow he meant that this was an unexpected result. It was an unexpected result of the law enforcement subdual, restraint and neck -- subdual, restraint and neck compression.

Dr. Baker didn't come in and talk to any of us about the use of force by police officers. He's not in the mind of any police officer. It is not what he said. It was simply words that were put into his mouth, but you check your notes on what his testimony actually was and you'll see that that wasn't it.

You've heard now for the umpteenth time in this trial what is the evidence on autopsy for asphyxia? If you're looking at the body tissues. You've heard it from witness after witness on the stand. I even pulled out big giant thick textbooks that even Dr. Fowler, the defense own experts, says these are reliable authorities on it.

[16:15:03] Every one of them says that in half or better of the cases where somebody has clearly died from insufficient oxygen, you don't see any evidence in the body tissues. Ladies and gentlemen, that's a fact.

Now, if this is supposed to be about performing an honest assessment looking at the totality of the evidence, how is that not mentioned to you in summarizing the evidence? How is that not mentioned to you?

And I can't even stop there, because you also were told about the law that applies to this. You were first told by Judge Cahill and no question that was accurate. But then you were told by Mr. Nelson. No question that was not accurate.

I'll tell you what I mean. When he was talking about causation, and he talks about fentanyl, heart failure, hypertension. And he said that we have to show beyond a reasonable doubt that none of these other factors played a role.

That's not the law, and you don't have to believe me. You'd be able to read it yourself. You can read the instructions there and see if Mr. Blackwell is telling the truth, that what we need to show is that the defendant's actions were are a substantial causal factor in his death. It doesn't have to be the only cause of the factor. It doesn't have to be the biggest substantial factor. It just has to be one of them, a substantial factor in the cause of death.

And the instruction will say that the fact that other causes contribute to the death does not relieve the defendant of criminal liability. There can be other factors. In fact, Dr. Baker had a section. I think it was called other factors, and he was clear.

Those other factors are not direct causes of the death. The direct cause was cardiopulmonary arrest that was in the environment of the police subdual, restraint and neck compression, point blank. When I got back and got to question him again after Mr. Nelson was finished, all I did was ask him about what he had written in the certificate on the case -- cause of death, cardio pulmonary arrest. Manner of death, homicide at the hands of another.

He was crystal clear on it. He did not equivocate. But what you have gotten here is a number of what I would call stories that once you analyze them and --

NELSON: (INAUDIBLE) Your Honor.

CAHILL: Overruled this time.

BLACKWELL: Once you analyze them and against the facts in evidence that you've heard you'll see what I mean. Take, for example the notion that Mr. Floyd dying of cardiopulmonary arrest, dying from no oxygen was just coincidental. He just happened to die at the same time in the same place of factors completely unrelated to what Mr. Chauvin was doing with his subdural restraint and neck compression.

That's a story, ladies and gentlemen, and it defies common sense. I'll show you what I mean. Oh, sorry.

(INAUDIBLE)

BLACKWELL: So we -- if we just treat each day that Mr. Floyd lived, he was born October 14th, 1973 and just made a dot on a page, and we looked at over his lifetime, you will see here, if we look over 10 years, 20, is 30, 40 years up to May 25th of 2020, that means that Mr. Floyd would have lived up to that day 17,026 days.

Now only one of these dots corresponds to May 25th, only one of them all the rest of these days, all the rest of these dots represent days that Mr. Floyd was living. He was breathing. He had a being. He was living. He was breathing and had a being with every single disorder that Mr. Nelson has chronicled, each and every day, you know, with his struggles with opioid addiction, with his high blood pressure, et cetera, every single day except the one day.

May 25th, that tiny little spec of a dot and not even that whole day because as we know there was a ten-minute segment, 9 minute and 29 seconds, that he didn't survive.

So, in one day's time, there are 144 of those ten-minute segments.

[16:20:05]

And only one of them was the reason that Mr. Floyd failed to survive, and what happened in that space -- well, you know what happened, ladies and gentlemen. That's where there was deadly force applied by Mr. Chauvin.

We know it was deadly force because we heard from Officer Zimmerman on the stand who told us it was deadly force. He said it's deadly force because it's force capable of killing a person which makes it deadly force.

Now, deadly force, ladies and gentlemen, once you see what Mr. Floyd was subjected to with this deadly force in the prone position, there are certain consequences or the risks that come with the prone position and the use of this kind of deadly force and that primary risk is it affects your breathing. You heard that from witness after witness after witness. It affects your breathing. It makes it harder to breathe.

You put the subject into the prone recovery position as soon as possible because you don't want to affect their breathing of low oxygen.

Do you have evidence of low oxygen here? There's evidence of low oxygen, ladies and gentlemen, that is medically unassailable, medically. Take, for example, the fact that Mr. Floyd had an anoxic seizure, that is he's already unconscious, not breathing, and the body is simply having a twitching reflex. That anoxic seizure represents low oxygen to the brain and that's what causes the anoxic seizure. But not only that, he suffered from, remember, PEA. And you remember when we talked about the PEA, the pulseless electrical activity, PEA. The common cause of PEA is low oxygen. You can't fake it. You can't make that up.

There's evidence of low oxygen and it would have been what proceeded -- what would have proceeded from the use of this very kind of deadly force, and this deadly force took place, as we know, within the 9 minutes and 29 seconds.

Now, you heard the statement that the state is seeking to ignore significant medical issues and nothing could be further from the truth. What you heard from doctor after doctor, whether it's Dr. Langenfeld, the ER physician, Dr. Rich, the cardiologist, Dr. Tobin, that you've heard so much , Dr. Smock. So many of the doctors that you heard that here is -- and Dr. Baker -- Dr. Thomas, here's where they all converge is that they recognize first and foremost that there was a use of force by Mr. Chauvin that set off a number of things medically for Mr. Floyd that culminated in his death.

Remember, he died of cardiopulmonary arrest. That means the heart has stopped and he's no longer breathing.

Now, Dr. Baker will tell you that -- that this stress to which Mr. Floyd was subjected in the subdual and the restraint by Mr. Chauvin and others was enough in, of and by itself to explain Mr. Floyd's demise. When asked the question, what about his oxygen levels? Did he have insufficient oxygen?

That's not something that I can calculate as a forensic pathologist, said Dr. Baker. That's not something I can calculate as a forensic pathologist, said Dr. Fowler, and Dr. Thomas said the same thing.

But the doctor, they said they would defer to the pulmonologist in every case which is who and what we have in Dr. Tobin who did the calculations, who can tell you how much oxygen was in Mr. Floyd's body, and not only that, he could tell you that when he's put into the prone position that his objection jen would have decreased by 24 percent.

He can tell you when weight was put on Mr. Floyd's back, the oxygen diminished to 43 percent. He can tell you that with the weight on his back, that the hypopharynx would have narrowed to 15 percent or lower making it difficult for anyone to breathe. He was able to tell you medically scientifically not only Mr. Floyd could not have survived in diminution of oxygen reserve and supply, but no human being could have survived. Based on the science. Based on the science.

Now, if it's dismissed as theoretical which is a word that I think I heard, theoretical, well, it's the same theoretical that Dr. Fowler said that he would defer to someone else to create because he can't do it, and that's exactly what Dr. Tobin did.

[16:25:03]

And so here, ladies and gentlemen, we're only required to show you that Mr. Chauvin's conduct was a substantial cause, a substantial factor in Mr. Floyd's death. Did he simply die automatically from and exclusively from the low oxygen? Ultimately, the low oxygen translates into not breathing and the heart stopping because we have cardiopulmonary arrest.

Did it first impact the heart and the heart stopped first? Ultimately, they both stopped because we have cardiopulmonary arrest, all stemming back to the subdual, restraint and next compression from Mr. Chauvin. They all agree that that was the precipitating point and that from there the stresses, the strains on Mr. Floyd's body, the low oxygen culminated in his ultimate demise and his passing away.

So I want to address kind of several other points in the heading of what I think are stories that you've heard versus I think the truths here. You know, when the case started I think you were all asked and talked about there being two side to every story. Two side over story, which is one of the most dangerous things I think about the process of truth because to suggest that everything is simply reduced to a story. And if it is a story, that means there can be two multiple sides to a story and there could never be a truth or a reality, except that what we're about here is getting to the truth and not simply stories.

Now it is most certainly right, for example, for police officer to take seriously this overarching mission of the police department embracing the sanctity of life and protection of the public as the highest values, but it is equally wrong, it is equally wrong to take this badge which is a symbol of a commitment to a higher calling to serve of the people, to abuse this badge as a license to abuse the public, to mistreat the public, to not follow proper procedures, to not render aid when you should have ministered aid.

That's wrong. That's not a story. That's simply wrong and the only two sides into would be the "W" and the "G" for that being wrong.

Now, you have heard statements to the effect that Mr. Chauvin being concerned about the bystanders and about others. Well, if you are looking at the totality of the evidence, you have to bear in mind that at all relevant times here, there were five grown men police officers right there, and four right there on the scene and then you had Officer Chang who was there, too. There was a radio to call for backup if they felt it was needed. You didn't here any evidence for any backup at all.

Now, there was a concern here that Mr. Chauvin was concerned, and I won't say much more about body language than has already been discussed, and a you'll decide for yourself whether that was the face of someone who was afraid at the time because he had all of the power at this point. He had the bullets, guns. He had the mace that he threatened the bystanders with.

He had backup. He had the badge, and he had all of it, and -- and what was there to be afraid of here particularly at this scene?

There were three high school juniors there and a second grader who was going to the store to get candy. There was a high school senior who was taking her cousin to the store, a first responder on the scene. And there was Donald Williams who wanted to intervene to try to save Mr. Floyd's life.

Mr. Charleston Miller (ph), a 61-year-old man that if I gave him a name, I would call him the mayor of the neighborhood. He just likes to see what's going on and to look out for things but he was simply there to try to also -- to intervene to try to save Mr. Floyd's life.

So this wasn't the face of fear or concern or worry. You've seen what the face of fear and worry looked like that day at that time.

[16:30:00]