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Testimony Continues in Derek Chauvin Trial. Aired 3-3:30p ET

Aired April 06, 2021 - 15:00   ET

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

[15:00:00]

ERIC NELSON, ATTORNEY FOR DEREK CHAUVIN: Now, I would like to talk to you about a couple of the Minneapolis policies, if we could.

So, there's essentially two Minneapolis police policies that deal with emergency medical response, correct?

NICOLE MACKENZIE, MINNEAPOLIS POLICE DEPARTMENT MEDICAL RESPONSE COORDINATOR: Correct.

NELSON: One being after a use of force, correct?

MACKENZIE: That is correct.

NELSON: And that being, as soon as reasonably practicable, determine if anyone was injured and render medical aid consistent with training and request EMS if necessary, correct?

MACKENZIE: Correct.

NELSON: That's policy 5-306 involving a use of force, correct?

MACKENZIE: Yes, sir.

NELSON: And so the policy is somewhat qualified, correct, meaning, it's as soon as reasonably practical, correct?

MACKENZIE: Correct.

NELSON: So, in the course of the medical training, one of the things that you train officers to do in the administration of first aid is to consider other circumstances, right?

MACKENZIE: Correct.

You have to make sure that your scene is safe before you're able to render aid.

NELSON: Right.

And there's -- the scene being safe -- not being safe could come from a number of factors, correct?

MACKENZIE: Absolutely.

NELSON: Environmental factors, such as where you're located, right?

MACKENZIE: Yes.

NELSON: Whether there is a lot of traffic, correct?

MACKENZIE: Yes.

NELSON: Or whether there is a lot of bystanders, correct?

MACKENZIE: Correct.

NELSON: Depending on their behavior, right?

MACKENZIE: Yes.

NELSON: OK.

So, scene safety is important. And, in fact, Minneapolis police -- or the EMTs won't come to a scene until it's declared Code 4 generally, correct?

MACKENZIE: Generally, yes.

NELSON: And so, oftentimes, it's not uncommon for EMTs to stage off- site until police call a scene Code 4, correct?

MACKENZIE: Correct.

NELSON: Code 4 being all clear, all safe, come on in?

MACKENZIE: Yes.

NELSON: And so, in that situation, if a scene is unsafe, EMTs don't come in at that point?

MACKENZIE: Correct.

NELSON: The other policy that we deal here -- too many things open here -- is policy -- Minneapolis police policy 7-350. That's in front of you right now?

MACKENZIE: It is.

NELSON: And, again, instant -- or relative to the emergency medical response, Minneapolis police officers are required to request EMS as soon as practical, correct?

MACKENZIE: Correct.

NELSON: And so there may be certain things that prevent an officer from calling in EMS, right?

MACKENZIE: Absolutely.

NELSON: So, both of the medical policies are somewhat qualified or contingent upon what's going on at the scene at the time, right?

MACKENZIE: Yes.

NELSON: Now, in terms of this Exhibit 111, which is the CPR presentation that you have presented -- turn to -- going to turn to -- it's 21856 down at the bottom there.

There is a reference to agonal breathing.

MACKENZIE: Yes.

NELSON: What is agonal breathing?

MACKENZIE: Agonal breathing is something you will see in somebody who is unresponsive and they're in some sort of respiratory distress.

We see this quite often with opiate overdoses, medical emergencies, drownings, what have you.

NELSON: And can you describe what exactly agonal breathing is?

MACKENZIE: Well, by name, it's kind of a bad term for it, because it's not effective breathing. It's more or less kind of an irregular gasp for air.

NELSON: OK.

MACKENZIE: It's really just kind of your brain's last-ditch effort to try to pull some air in.

NELSON: And a person observing someone going through agonal breathing, it's common or it would be possible that they would misinterpret that as actual breathing, effective breathing?

[15:05:04]

MACKENZIE: Yes. It can be easily confused with real breathing. So, that's what we teach. This is not effective.

NELSON: Right.

So, an officer is dealing with someone who is experiencing agonal breathing, it would potentially be possible for an officer to misinterpret agonal breathing for effective breathing?

MACKENZIE: It could.

NELSON: And in certain circumstances where there is a lot of noise or a lot of commotion, would it be more likely that that could happen?

MACKENZIE: Yes.

NELSON: Now, you were shown this slide in terms of, when do we stop CPR? And one of the reasons you stop performing CPR is because it's not safe, right?

MACKENZIE: Correct.

NELSON: And by it being not safe, are you referring to the process of actually giving CPR or the environment that you would be doing it in?

MACKENZIE: It would be the environment around you.

NELSON: OK.

And so it stands to reason that, if the environment around you, you would determine to be not safe, you may not start it right away?

MACKENZIE: That would be reasonable, yes.

NELSON: Now, you also testified that you teach on Narcan and the use of Narcan?

MACKENZIE: Correct.

NELSON: And I am going to show you -- you can see this training in front of you?

MACKENZIE: Yes.

NELSON: Is this training that you provide to Minneapolis police officers?

MACKENZIE: Yes.

NELSON: And this is the administration -- this is the program on like the broader course on how to administer Narcan, correct?

MACKENZIE: Correct.

NELSON: And do you recognize this as a record that you keep in the ordinary course of your business?

MACKENZIE: Yes, sir.

NELSON: This, Mr. Schleicher, I had labeled as Exhibit 1041. And I would move to admit Exhibit 1041.

STEVE SCHLEICHER, MINNESOTA PROSECUTOR: No objection.

PETER CAHILL, HENNEPIN COUNTY, MINNESOTA, JUDGE: Ten-forty-one is received.

NELSON: I don't know why it's doing this. Here we go.

And permission to publish 1041?

This is from the Minneapolis Police Department in service from July of 2018?

MACKENZIE: Correct. NELSON: And if Mr. Chauvin had attended this program or his in-

service through July or September of 2018 he would have received this training, correct?

MACKENZIE: Correct.

NELSON: Now, in recent years, fentanyl has become more of a concern for officers to be aware of, correct?

MACKENZIE: Absolutely.

NELSON: And, ultimately, you train officers in the use of Narcan to contraindicate -- or to contradict, I should say, the effects of Narcan, right?

MACKENZIE: The effects of opiates.

(CROSSTALK)

NELSON: Opiates.

MACKENZIE: Yes.

NELSON: Including fentanyl, right?

MACKENZIE: Correct.

NELSON: Now, in your experience as a police officer and as a medical trainer, have you experienced individuals who take combinations of drugs?

MACKENZIE: Yes.

NELSON: Have you heard the term speedball?

MACKENZIE: I have.

NELSON: And would you agree that that is a combination of both a stimulant like methamphetamine and a depressant like fentanyl?

MACKENZIE: Yes.

NELSON: Objection. (OFF-MIKE).

BROOKE BALDWIN, CNN HOST: All right, Elie, give us some context here about all this.

ELIE HONIG, CNN LEGAL ANALYST: Yes, so there's an evidentiary objection right now the judge is deciding.

I imagine it has something to do with whether this witness has the expert qualifications to talk about the properties of this -- these various drugs we're talking about, fentanyl, which is essentially an artificial and very potent, very dangerous type of opiate.

Now, you will hear the parties continue to talk about Narcan. BALDWIN: Yes.

HONIG: Narcan, technical name is naloxone.

What this is, is a relatively new medicine that police officers for the last five years or so now routinely carry with them on their belts. It can be used to reverse an overdose on the spot. It's really pretty remarkable how effective it is. It's a nasal spray most often.

[15:10:07]

BALDWIN: OK.

HONIG: So it's actually fairly easy to administer.

BALDWIN: OK. Forgive me.

HONIG: And so the question I'm wondering here--

BALDWIN: Let me. Hold the question. Let's listen. I'm coming back for you.

NELSON: -- in your experience?

MACKENZIE: Yes.

NELSON: Now, as fentanyl has become more prominent, do you see that in legal forms, such as patches or other pills that may be administered by a hospital?

SCHLEICHER: Objection. Leading.

CAHILL: Overruled.

NELSON: Do you see that on the streets?

MACKENZIE: Yes. You will see totally legitimate pharmaceutical purposes, and then also illicit drugs that were manufactured, all sort of lines.

NELSON: Can you explain for the jury whether, in your experience, you have seen illicit fentanyl use on the rise, becoming more prevalent?

MACKENZIE: Yes, absolutely.

NELSON: And I'm going to just show you, generally, when you talk about someone, you show it to officers in this training. When someone is experiencing an opiate overdose, you may see this type of behavior; is that correct?

MACKENZIE: You could, yes.

NELSON: Someone may fall asleep. Someone may be very tired, kind of out of it, right?

SCHLEICHER: Objection. Leading. CAHILL: (INAUDIBLE) question.

NELSON: Would this be consistent with what you would see generally on an opiate overdose?

MACKENZIE: It could be.

NELSON: OK.

Have you ever been at a scene where an opiate overdose, someone can be more responsive?

MACKENZIE: Yes.

NELSON: Even though they have taken an opiate?

MACKENZIE: Correct.

NELSON: Now, in terms of fentanyl, can you explain this slide?

MACKENZIE: Certainly.

So, this is a diagram to show you just what could be considered a lethal dose of fentanyl. Just it's more of a visual indicator, because we already know how dangerous heroin is. And you can see a trace amount of that could be deadly with fentanyl, and even more so with carfentanil.

NELSON: And so even -- fentanyl even in very small doses can be fatal. Would that be accurate?

SCHLEICHER: Objection, Your Honor. Sidebar?

NELSON: I will rephrase the question.

SCHLEICHER: First as to the objection, Your Honor?

CAHILL: (OFF-MIKE).

BALDWIN: I feel like, Elie, I heard the prosecution say, like, persistent objections, so they want a sidebar.

HONIG: Yes.

BALDWIN: Is the defense stepping out of bounds?

HONIG: It's a close line here.

The question is, does this witness have the expert background and qualifications to testify about the potency of drugs like fentanyl, the effects of someone who has used fentanyl? That's what the judge is deciding right now. She's close to the line, right?

She is trained in emergency medical services. She works for the police department, but she doesn't have some of those perhaps higher degrees that you sometimes want to see out of an expert. The big questions I'm wondering about, first of all, did Chauvin

attend these trainings? Did he carry Narcan with him? Again, that's the medication that can in some instances instantaneously reverse an overdose.

And if he was carrying Narcan on him, and if he believed George Floyd was overdosing on that day, as the defense has argued, why on earth would he not have used it on George Floyd right there? So, the prosecution needs to clarify this, perhaps in their redirect.

BALDWIN: And, Commissioner Ramsey, I remember Chief Arradondo talking about the Narcan yesterday and these -- I think he described as like an inhaler.

Can you just shed a little light for us as well on how officers use this?

CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Yes.

I mean, if you got a person who's suffering from what appears to be an overdose from an opioid, you can -- it is a spray. It looks like a nasal spray, and it brings them out of it. It will not harm you if you are not going through that.

But let me just say something about what I think could be bothering the prosecution, as a layperson, that photograph. I mean, if what you're saying is it only takes a small amount of fentanyl in order to be fatal, and they show that picture of the heroin, and then they show a couple grains of fentanyl, and you say that could be a fatal dose, later on, when the toxicology testimony starts, that's an image that's going to stick in their mind.

And I'm a layperson, so I'm not looking at it from a medical perspective. I'm just looking at it from a visual. And I'm a visual person. And a whole lot of folks are, including some of the people on that jury.

BALDWIN: No, me too. I'm sitting there trying to -- I'm squinting at the fentanyl trying to see how--

RAMSEY: That's right.

BALDWIN: I mean, nothing in there. And that's what they're saying is even--

RAMSEY: Yes.

BALDWIN: -- more fatal than the heroin in that vial.

Elie, what do you make of that, that visual?

RAMSEY: Yes.

HONIG: That's exactly right, yes. I think this is why the prosecution wants to stop this. They're arguing, this is not a witness who's qualified to testify about that. [15:15:02]

Also, just seeing the physical amount of fentanyl that we saw, as the commissioner said, that can be wildly misleading, because fentanyl varies tremendously in its potency.

When you send fentanyl into a lab to be tested a forensics lab, some of it comes out on potent enough so that a very, very small amount can kill a person. Others is far less potent. So, that image -- I think Commissioner Ramsey is exactly right.

That is a visceral, vivid image that's going to stick with the jury. And it's not necessarily tied to anything scientific or specific to this case.

BALDWIN: OK, this has all been so helpful. Let's listen back in.

RAMSEY: If I can just very, very quickly, the other part of that--

BALDWIN: Hang on one second, Commissioner. Hang on.

NELSON: -- that they may encounter well in their performance of their duties, correct?

MACKENZIE: Correct.

NELSON: All right.

Now, in terms of -- I need to take this down -- in terms of just again general training, you had already said that you also discussed with officers the concepts of excited delirium, correct?

MACKENZIE: Correct.

NELSON: And you provide them with training and materials about what that means, correct?

MACKENZIE: Yes.

NELSON: All right.

And, generally speaking, without reviewing to your training materials, can you describe what you train Minneapolis police officers about excited delirium?

MACKENZIE: Certainly.

This is a class that is taught at the academy. It's a one-hour block of pres -- one-block of instruction to recognize the signs and symptoms of excited delirium and your best responses for handling that.

So, excited delirium, it's a combination of psychomotor agitation, psychosis, hypothermia, a wide variety of things you might see in a person or rather bizarre behavior, and recognizing that this is a medical condition, not necessarily a criminal matter. NELSON: Would that include discussion of controlled substances in the

context of excited delirium?

MACKENZIE: Yes, because what we're usually teaching is that most of the people that are experiencing something like excited delirium, usually, there's illicit drugs on board that might be a contributing factor.

NELSON: And, as far as -- what do you train Minneapolis police officers relevant to the physical attributes of a person experiencing excited delirium?

MACKENZIE: The person might be experiencing hypothermia. It means elevated body temperature. That can be a display of somebody taking off their clothes in a place that's not appropriate to take off your clothes or like in the middle of winter or something like that.

And just based on their activity, their heart rate might be extremely elevated, and they might be insensitive to pain.

NELSON: How does it affect strength?

MACKENZIE: Because you don't really have that pain compliance that would normally otherwise kind of control somebody's behavior, so somebody experiencing this, they might have what we call superhuman strength.

They might be able to lift things they wouldn't normally otherwise be able to lift. They might be breaking things, where they then have blood-like substances that you need to be cautious of.

NELSON: Thank you.

Now, in terms of -- I'm going to just back up and talk a little bit more about the response to a medical emergency by EMS, again, based on your experience as a police officer and an EMT.

You talked about how sometimes EMS will stage off-site until a scene is clear and safe, correct?

MACKENZIE: Correct.

NELSON: And have you heard the term load and go?

MACKENZIE: Yes.

NELSON: Can you describe for the jury what that is? ?

MACKENZIE: Load and go, that would be -- I think it's more of like an informal term that is used with first responders.

That essentially means as soon, as they're going to be arriving, it's a priority to get that person into the ambulance as soon as possible and get en route to the hospital as soon as possible.

NELSON: Are there reasons why an EMT or a paramedic would choose to do that, rather than administering first aid at the scene?

MACKENZIE: Yes.

NELSON: What are those reasons?

SCHLEICHER: Objection, Your Honor.

This goes beyond the scope of her training.

CAHILL: If you know. If you don't know, just say so.

MACKENZIE: Sure. I feel comfortable answering it.

And by way of example, if maybe somebody had a knife in their chest, obviously, there is only so many things you can do for that person pre-hospital. Really, the only thing that's going to save that person is immediate surgery.

NELSON: So, there may be conditions of the individual that warrant that type of pickup and go?

[15:20:07]

MACKENZIE: Yes.

NELSON: And what about people in the area? Could that affect an EMT's decision to load and go?

MACKENZIE: Yes.

NELSON: How so?

MACKENZIE: If you had a very hostile or volatile crowd, I know it sounds unreasonable, but bystanders do occasionally attack EMS crews.

So, sometimes, just getting out of the situation is kind of the best way to defuse it.

NELSON: OK.

And have you ever had to perform emergency services in a -- just a -- not even a hostile crowd, just a load, excited crowd?

MACKENZIE: Yes.

NELSON: Is that, in your experience, more or less difficult?

MACKENZIE: It's incredibly difficult.

NELSON: Why?

MACKENZIE: Because if you're trying to be heads-down on a patient that you need to render aid to, it's very difficult to focus on the patient while there are other things around you, if you don't feel safe around you, if you don't have enough resources. It's very difficult to focus on the one thing in front of you. NELSON: Can be distracting?

MACKENZIE: Absolutely.

NELSON: And so it -- does it make it more difficult to assess a patient?

MACKENZIE: It does.

NELSON: Does it make it more likely that you may miss signs that a patient is experiencing something?

MACKENZIE: Yes.

NELSON: OK.

And, so the distraction can actually harm the potential care of the patient?

MACKENZIE: Yes.

NELSON: I have no further questions.

CAHILL: Thank you very much.

SCHLEICHER: Are officers trained that sometimes they have to provide emergency medical services in less-than-ideal conditions?

MACKENZIE: Yes.

SCHLEICHER: This -- the rendering of the emergency aid in practice does not happen in a classroom setting, does it?

MACKENZIE: Correct.

SCHLEICHER: Right. And so you're in the environment as you find it; is that right?

MACKENZIE: Yes.

SCHLEICHER: And in terms of a crowd, and a crowd being hostile, how would you define hostility?

MACKENZIE: That would be a growing contingent of people around, if they're yelling, being even verbally abusive to those that are trying to provide scene security.

SCHLEICHER: OK. What else?

MACKENZIE: If there's people trying to interfere with a crime scene or interfere with a patient.

(CROSSTALK)

SCHLEICHER: Perhaps use a weapon?

MACKENZIE: Yes.

SCHLEICHER: Throw rocks or bottles?

MACKENZIE: Yes.

SCHLEICHER: Something like that could prevent someone from providing emergency aid; is that right?

MACKENZIE: Absolutely.

SCHLEICHER: Can the activities, though, of a crowd, do the activities of a group of onlookers excuse a police officer from the duty to render emergency medical aid to a subject who needs it?

MACKENZIE: Only if they were physically getting themselves involved, I would say.

SCHLEICHER: If they were physically prevented -- if the officer was physically prevented from doing it?

MACKENZIE: Yes, if the officer was being physically assaulted.

SCHLEICHER: I wanted to talk a little bit about some of the things you said were indicative of excited delirium. You said superhuman strength; is that right?

MACKENZIE: Yes.

SCHLEICHER: And I think what you said was that it was because of the inability to feel pain; is that right?

MACKENZIE: That's a part of it, yes.

SCHLEICHER: And the inability to feel pain is something that you associate with or you train officers to associate with excited delirium?

MACKENZIE: That could be a case of excited delirium, yes.

SCHLEICHER: And so if someone was actually manifesting a response to pain, indicating that something was hurting them, then that would tend to indicate that they are not suffering from excited delirium; is that right?

NELSON: (OFF-MIKE).

CAHILL: Sustained.

Rephrase.

SCHLEICHER: What would a subject's response to pain stimulus suggest, then, as it relates to excited delirium?

MACKENZIE: That it may or may not be excited delirium. It's a little bit hard to predict, because no two people ever really present the exact same way. SCHLEICHER: So, then how do you tell what it is?

MACKENZIE: Well, that's not for us to diagnose. It's just a matter of taking in the information you have at that time to decide if this could potentially be a case of that, or you just need to plan accordingly.

SCHLEICHER: And you indicated that, whatever excited delirium is, you look at it as a medical issue?

MACKENZIE: Correct.

SCHLEICHER: That needs treatment?

MACKENZIE: Yes.

SCHLEICHER: And in terms of the drug use as well, is it fair to say that, if someone is showing indicia of drug intoxication, it can make them vulnerable?

MACKENZIE: Yes.

[15:25:00]

SCHLEICHER: Not just violent?

MACKENZIE: Correct.

SCHLEICHER: Thank you. Nothing further.

CAHILL: (OFF-MIKE).

NELSON: (OFF-MIKE).

CAHILL: Members of the jury, let's take 10 minutes. We have to deal with one issue. The witness will remain, however.

So, 10 minutes, and we will be back in touch.

BALDWIN: All right. OK. So, we have a bit of a break.

Gentlemen, let me bring you both back in.

And, Elie, I do want to begin with you.

Just from your legal perspective, just setting the scene of what we just saw, and if this seemed a little bit of a win for the defense in this back-and-forth.

HONIG: Well, the defense has been consistent in their theme. And their theme really boils down to, it all depends.

And we saw them using this line of defense yesterday when they were interviewing the chief, when they were cross-examining the chief. And we're seeing it again with this witness. Basically, the witness is coming on and saying, we have certain

standards, certain policies, certain practices, and, in some cases, they're saying, and Derek Chauvin's actions went way beyond the line.

And the cross-exam consistently has been, but it always depends on all the factors. These are dynamic situations. These are evolving situations. You can't go back and second-guess.

That is how the defense has consistently gone about trying to plant some reasonable doubt in the jury's mind.

BALDWIN: Commissioner Ramsey, can we back up for a second?

I -- this phrase excited delirium, can you explain that for us and why this is relevant here?

RAMSEY: Well, only in lay terms, can I.

But you see a person who could be under the influence. I have seen it with a person under the influence of phencyclidine, PCP, which commonly gets kind of a reaction--

(CROSSTALK)

BALDWIN: Actually, forgive me, Commissioner. Really -- hang on. Hold that thought. Forgive. A lot of back-and-forth.

I'm being told by my producer the judge is talking,.

CAHILL: What did you want to deal with?

UNIDENTIFIED MALE: If we could have a private conversation.

BALDWIN: OK. Headphones on. Now we're back.

Forgive me, Commissioner. Forgive me.

RAMSEY: All right. Yes.

No, they become very sweaty, very aggressive in many cases. You can see that they're highly agitated, and it can very difficult to control.

But the one area that they tend to ignore, in a way, George Floyd submitted to being handcuffed without a struggle. He was already handcuffed. And so that minimized the threat to any of the officers there, because he was already restrained.

It doesn't mean that he couldn't kick or whatever, but he's already restrained. And the most difficult thing there is, is putting handcuffs on an individual. You have got that one done already. I mean, that's already been taken care of.

And so whether you suffer from excited delirium or not, you were able to maintain control. Again, you had four officers, one suspect. And so all those things combined, they should've been able to control him without much of a problem.

BALDWIN: And then all those questions about the crowd and would the officers have been distracted?

RAMSEY: Yes.

BALDWIN: OK. Hang on, hang on. Here's the judge again.

CAHILL: The defense would like to call you back during their case. And so Mr. Nelson will serve a subpoena on you at some point, so that you kind of -- mostly for his contact information.

MACKENZIE: Sure.

CAHILL: Because, in the interim, I'm going to order that your subpoena that were previously served still is in force and that you should, unless you hear otherwise, come next Tuesday at 9:00 a.m.

But, most likely, Mr. Nelson will be in contact to tell you when exactly, so you won't just waste your time coming down here.

MACKENZIE: Yes, sir.

CAHILL: Does that work?

(CROSSTALK)

MACKENZIE: Yes.

CAHILL: So, Mr. Nelson, how is that going to be served?

NELSON: (OFF-MIKE).

MACKENZIE: Normally, yes.

NELSON: I can just serve the police through the normal -- or through federation or something?

MACKENZIE: Yes, absolutely.

CAHILL: All right.

We will make sure that gets done. But, for today, you're excused.

Thank you.

MACKENZIE: Oh, thank you.

CAHILL: All right. We will be in recess until 2:35, at least. (INAUDIBLE).

BALDWIN: OK.

I want to come back to the point about the crowd.

But just, Elie, just admin happening in the courtroom. Are they bringing her back?

HONIG: Yes. So, this happens sometimes. A witness will testify for the prosecution. The defense -- the defense is limited to what they can cross-examine on. It has to be within the scope of the direct examination.

So you can't go to something totally outside of the direct examination. Sometimes, the defense lawyer -- and that's what's happening here -- says, well, I have other questions I want to ask this witness. So they will subpoena her. That's what just happened. So she will be back as part of the defense case for Eric Nelson.

BALDWIN: Got it.

Let's sneak a quick commercial break in, and then I want to come back about. I have got more questions for both of you.

Quick break. Back in just a moment.

(COMMERCIAL BREAK)