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"I Would Say No" Chauvin's Neck Restraint On Handcuffed, Controlled Person Would Not Be Authorized Use of Force; Floyd's Friend Hopes To Avoid Testifying, Cites 5th Amendment Concerns; Fauci Says Scene of Packed TX Stadium Is Concerning, Thinks Vaccination Pace Will Prevent Real Surge In Cases Nationwide; Prosecutor Interviews Police Use-of-Force Instructor; Defense Cross-Examine Police Use-of-Force Instructor. Aired 12p-12:30p ET

Aired April 06, 2021 - 12:00   ET

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

[12:00:00]

JOHN KING, CNN HOST: He is not trained to do that, he actually specifically said he is trained not to do that. He is actually trained once you once you get the suspect under control deescalate, back off.

LAURA COATES, CNN SENIOR LEGAL ANALYST: This is so important because think about the psychology of jurors. One of the reasons that you have the variety of questions that talk about the amount of weight you would give to officer testifying or the benefit of the doubt that we know that people extend to officers.

Nobody believes that a peace officer gets up in the morning puts on his or her uniform, and goes out with the badge with the intent to kill someone, unjustifiably. So that psychology is top of mind for prosecutors to help the jurors to feel comfortable about whatever verdict they render.

This is not a police officer that they're trying to attack. This is somebody who was only a cop in name, having the continuous testimony from different law enforcement perspective to say, this is not what we do. He is no longer one of our own at the time that he engaged this behavior. He was not one of us.

This distancing is very compelling for jurors to be able to get over that psychological hurdle of having the thought that all police are on the stand right now. It's no, it's this one person. But it's also very important here as well, to think about why it is why you have the continuum here continuum for sure, but also the continuum of the testimony.

Last week so emotional, John, such compelling testimony from a nine year old up to somebody more than a half a century older by fitters imploring now you've got the more reserved sort of contemplative, disinterested, seemingly unaffected, essentially by what's going on?

And what does that do? That has the credibility of these witnesses going through the roof. It's not somebody with an agenda. It's not somebody who has a vested interest in per se, working for the prosecution or the defense. These are neutral people who have testified and trained a universal application of information.

They have universally trained cadets and veterans year after year, on the same information, this distancing, this sort of disinterested, non agenda related party is very critical for a prosecution's ability to really persuade the jury that look, you're hearing from every angle. This is not what cops do. It went from reasonable use of force to criminal assault, that link is what they need.

KING: And Chief five decades of experience. Walk us through that very important point Laura's making about credibility. The judge has said that he wants to limit the number of Minneapolis police officers to come in and testify.

He has said he doesn't want it to be redundant, but he has allowed several of these training officers to come in, because we have heard Mr. Nelson, the defense attorney, try throughout the trial to raise the question of doubt.

Put yourself in Officer Chauvin's shoes. Mr. Floyd had resisted earlier, the crowd was gathering. There were people shouting faces to police officers give him a break benefit of the doubt tough situation is the case the defense is trying to make.

And you have officer after officer after officer and Sergeant Yang today and then Lieutenant Mercil today thing very calmly walking through actually no, the training is - the training walks you through this. You are repeatedly trained every couple of years just to get you through a situation like this, to know when to back off.

CHARLES RAMSEY, CNN LAW ENFORCEMENT ANALYST: Yes, listen, I think that the prosecution is bringing forth the right witnesses, that really, I think that the defenses notion that what he did was within policy, it's part of his training.

And for the average person, they don't really know what that training is. I mean, you know, it's important to be able to bring that out. And I think what's happened, at least where we are right now, in my opinion, is that that whole part of that defense has pretty much been taken away.

The only thing he's got left is going to be looking at the medical examiner's report, talking about the toxicology results, did he have a lethal dose of drugs that he not have tried to get into the cause of death, because as far as process and procedure goes, with his training and with policy, I mean, it's clearly, clearly not something that's appropriate not only in a Minneapolis Police Department, but any police property in the United States, the level of force that he used.

And so I think they're very smart with whom they're bringing forward to testify? You don't need 100 witnesses you just need the right ones.

KING: And Laura, one witness we did not hear from today and it was unclear if we will hear from during the trial is George Floyd's friend who was in the car with him as all this played out? That friend obviously has some legal liability. There's a question of drug use, there was a question as a counterfeit bill. So there was a pre trial hearing this morning before the jury came into the room. What was your takeaway on that? The judge said he is - he believes there might be a very narrow area of possible questioning of it defer to decision.

COATES: So to remind the audience, I'm enticed to invoke the Fifth Amendment. They are saying that I am exposed to legal liability here. If I answer your questions, honestly, it invites prosecution or probably the intervention of law enforcement. Maybe arrest may be a trial.

So the judges going to allow people to invoke this Fifth Amendment to try to guard against that, recognizing that the witness may have some of that exposure.

[12:05:00]

COATES: The question is will every question that's asked of this particular witness lead to that sort of exposure? What the judge is hoping to do from the defense counsel is to say, give me a list of all the questions you intend to ask. Each particular question they have a right to invoke the Fifth Amendment, but it's not that you can do blanket.

Essentially saying, hey, listen, there are some aspects that he might invoke, therefore, forget about it. Let's have the person have blanket immunity - blanket - the idea not immunity, the blanket use of the invocation of the Fifth Amendment.

So the judge has not ruled yet what happens here. But remember, if you're the prosecutor, do you want after the case you have built? Do you want someone taking the stand, muddying the water in the way of asking questions and saying, I plead the fifth, every juror is going to look at this and say, are they hiding something? What are they trying to hide?

And then they will transfer those suspicious thoughts onto the prosecution's case. They don't want to mare if you're the defense, you want that sort of scenario, you want them wondering, what does this person not want me to know if the idea of substantial causal factor of death is at play here?

Why don't you want me to hear from somebody who is inside that car, you've raised the use of drugs, et cetera. So this is going to be a battle that is going to be for another day. But the judge is right to inquire at this juncture, which aspects of the testimony do you think are going to be so markedly different?

What we've heard from the Cup Foods employee who merely observed and said that he observed George Floyd as potentially being under the influence? Why would his statement from the car perspective be so different to inculcate one and not give liability to the other that will be wrestled with I think I said on Thursday, at least.

KING: Yes, he did say on Thursday, and it's very important insights. You just made it in the sense that we're watching the testimony in the courtroom. Sometimes the rulings judges make in talking with the cases sometimes they can have as big an impact on the case down the road as well.

Laura Coates and Chief Ramsey you're going to stay with us. We're going to take a quick break. Again, we're waiting any moment now the trial of Former Officer Derek Chauvin charged in the killing of George Floyd to resume a quick break. We'll be right back.

(COMMERCIAL BREAK)

[12:10:00]

KING: We were in a short break right now. I want to remind you in the trial of Former Minneapolis Police Officer Derek Chauvin charged of course, in the killing of George Floyd. We'll take you back to that trial as soon as it resumes in just a few moments.

Other big headlines though, including the fight against COVID. This afternoon, President Biden leaving the White House to tour a vaccination site in Virginia, where we are told he will announce he's moving up now the target date for all adults here in the United States to be eligible to get a COVID vaccine.

The new deadline is have not actually to progress the administration has been boosting the supply and to some of the steps that states are taking already so far. If you look at this map here in 33 states now adults 16 and older already eligible to go online registered try to get in line to get a COVID vaccine.

12 more states and the District of Columbia will be added to that list by April 19 so momentum happening in the states, the president tried to accelerate it even more. Here's where we stand as of this day, about just shy of 19 percent of the American people fully vaccinated from COVID.

And you see 32 percent and some change there have at least - have their one dose of the vaccine. So the acceleration of the vaccine rollout is quite dramatic. If you look by age, older Americans 75 percent of those between 65 and 74, 75 percent of those over the age of 75 have been vaccinated.

So good progress here the challenge with younger Americans from the 50s on down 50 to 64 44 percent. You see the numbers going down. That's the challenge in the weeks and months ahead. The vaccine trend line this is where the administration is claiming significant progress and the numbers back them up.

The seven day average right now more than 3 million vaccines a day shots in arms across the United States the numbers are going up. You see over the weekend, they got to 4 million, at least on one day the state by state trend map in terms of new cases that shows you the race that's going on.

Vaccine rollout competing with in 15 states right now more new COVID infections at the moment than the data a week ago, 15 states trending in the wrong direction. 24 so roughly half the states holding steady. The administration wants to push that down. Public health wants to

push that down. Only 10 states in green at the moment meaning fewer new COVID infections now compared to the data a week ago. If you look at the case timeline again, well down from the horrors of the winter surge.

But still more than 79,000 new infections reported yesterday more than 79,000 new infections. That is a high case line and too high of a baseline. The administration says yes, this progress with vaccines. But that is a high number in case some of the experts saying there could be potentially a fourth wave 60,000 was the baseline before we went way up here.

79,000 new infections reported just yesterday. One of the issues, the variants, they're more nasty. They're nastier it's not a medical term, but it's a fact and you see now the UK variant 15,000 plus cases in the United States and it is everywhere. We've watched over the last month it's gone from state to state to state. It is everywhere now.

One of the challenges is yes Americans are feeling better, more confident more Americans are getting shots in arms. The administration worries though about scenes like this. These are fans at Baylor University celebrating understandably, their championship in the NCAA Basketball Championship last night.

But look at all those people gathered very closely together. This Texas Rangers, Arlington, Texas yesterday, the Rangers are the only team in baseball to say we will fill the entire stadium with fans right now. Dr. Anthony Fauci looks at that scene. You do see some of the fans wearing masks. But Dr. Anthony Fauci looks at that more than 38,000 people packed into a stadium and he says to sue for that.

(BEGIN VIDEO CLIP)

DR. ANTHONY FAUCI, DIRECTOR, NATIONAL INSTITUTE OF ALLERGY AND INFECTIOUS DISEASES: Do you see the pictures of the Texas Rangers stadium essentially crowded. We don't want to declare victory prematurely. We're looking at kind of a race between the vaccine which is highly efficacious, and a real - I don't want to say surge because surge means you get a really high increase.

We're seeing it start to creep up now whether it explodes into a real surge or not, remains to be seen. I think that the vaccine is going to prevent that from happening.

(END VIDEO CLIP)

[12:15:00]

KING: Let's get some insights on all of this right now from our CNN Senior Medical Correspondent Elizabeth Cohen. She joins us. Elizabeth walk through this race that Dr. Fauci talks about, especially with this news from the president today that he's trying to bump up the timeline, if you will, that more adults can go online, sign up, get their vaccine. ELIZABETH COEHN, CNN SENIOR MEDICAL CORRESPONDENT: Right, John, as you mentioned, these variants that have been coming up more and more in the United States, especially B-117, UK variant, they are nasty.

I agree, as you said, not a medical word, but I think it works perfectly. So there is a race now, can we vaccinate enough people so that these variants don't take a hold, don't get more people sick and don't kill more people.

Now opening up the entire country to 16 and above could really, really make a difference. Let's take a look at what's needed at this point. There are 263 million Americans who are age 16 plus 263 million, but 156 million, so 156 out of 263 have not been vaccinated yet. They haven't even gotten the single shot. That's more than half.

So there are still even though it's been, you know, going so well and so quickly recently, there are still so many Americans who can get vaccines who have not gotten vaccines. And so what this means is that if you look at the numbers--

KING: Elizabeth, I'm sorry to interrupt. We need to take you back to Minneapolis into the courtroom, my apologies Elizabeth Cohen back to the trial of Former Officer Derek Chauvin.

STEVE SCHLEICHER, PROSECUTING ATTORNEY: --exhibit 119, page 56 and we're starting to discuss what your training is regarding handcuffing. Could you please explain to the jury how you train Minneapolis Police Officers in handcuffing techniques and the use of force?

LT. JOHNNY MERCIL, MINNEAPOLIS POLICE USE-OF-FORCE INSTRUCTOR: Yes sir. Well, we seek - we teach several different positional handcuffing techniques, as well as how to approach people when they're going to be handcuffed. And then once you make contact with the person how to properly place the cuffs and procedures after?

SCHLEICHER: How do you properly place the cuffs?

MERCIL: Well, one cuff at a time. And then once they're on and everything's under control and code for as we call it, things have calmed down to the point where you have control the subject. You want to make sure that you check the fit of the cuffs and double lock them for their safety. They tend to behind your back if you sit down they tend to tighten up on a person so we want to be mindful of the effect of the handcuffs.

SCHLEICHER: And the double locking prevents the further tightening of the handcuff?

MERCIL: Yes, sir. The double lock, it's just a little button that you use your cuff key to push and it prevents the either coming undone or going in.

SCHLEICHER: And there are several different positions that an officer can be in when they're handcuffing the suspect. Is that right?

MERCIL: That the - I'm sorry-- SCHLEICHER: The officer can be in many different positions relative to the subject when they're handcuffing?

MERCIL: Absolutely, very dynamic. Yes, sir.

SCHLEICHER: Standing?

MERCIL: Yes, sir.

SCHLEICHER: Prone?

MERCIL: Yes, sir.

SCHLEICHER: Right. And I'd like you to please describe for the jury what techniques are used to prone handcuff subject?

MERCIL: With the prone handcuffing we want to make sure that we isolate an arm and a lot of times we teach the officers to use a knee to control their shoulder. Generally, you put one knee on each side of the arm so want to be on the upper shoulder one, right middle, the back, excuse me.

And then isolate that arm present the risk for cuffing, and then handcuff. And a lot of times when you're doing the prone cuffing, you do that with a partner preferably, and makes it a lot easier to control the person.

SCHLEICHER: And if someone is handcuffed and you're using your knee on their back or shoulder to gain control. Do you leave it there for an extended period of time?

MERCIL: It depends on the circumstance. You can leave it there for a longer period of time depending on the resistance you get.

SCHLEICHER: And what would signal to you as a trainer when you're supposed to release your knee?

MERCIL: When their behavior de escalates their resistance.

SCHLEICHER: Relative to the handcuffing?

MERCIL: That's correct, sir. Yes, compliance.

SCHLEICHER: So once you've accomplished the handcuffing, once the subjects actually have been handcuffed, is that the appropriate time to release your led?

MERCIL: Not necessarily.

SCHLEICHER: Why?

MERCIL: When people are handcuffed in the prone position, they can thrive - thrash around, ride around and they can - they do present a little bit of a threat they can kick, bite some other things so control doesn't end with handcuffing always.

SCHLEICHER: If the subject is resisting, correct?

MERCIL: That's correct.

SCHLEICHER: The mere possibility that a potential - that a subject could resist like that kicking is that justification to leave your leg in place.

MERCIL: No sir. I would - I would see any behavior that would lead you to leave your knee there.

[12:20:00]

SCHLEICHER: So once the subject is handcuffed and compliant or not resisting, is the officer to remove their knee?

MERCIL: That would be an appropriate time.

SCHLEICHER: And how long then is the person the subject to be left in the prone handcuffed position once they're compliant?

MERCIL: It depends on the circumstances that you're involved in with this person in the surrounding environment.

SCHLEICHER: So assume the circumstances that I just stated, the subject is prone, handcuffed, and no longer resisting.

MERCIL: --reasonably necessary at the time they do it then you should get them in a different position.

SCHLEICHER: What position is that?

MERCIL: It depends on circumstances, but you can put them in the recovery position on their side, you can sit them up, you can stand them up.

SCHLEICHER: And why would you want to put them into a different position?

MERCIL: There is the possibility and risk that that some people have difficulty breathing when the handcuffs are behind their back and they're on the stomach.

SCHLEICHER: And what is that known as?

MERCIL: I'm sorry, rephrase.

SCHLEICHER: Are you familiar with the phrase positional asphyxia?

MERCIL: Oh, yes, sir.

SCHLEICHER: Is that the danger you would be trying to avoid by putting someone in the side recovery position?

MERCIL: That is one of the dangers you're trying to avoid, yes.

UNIDENTIFIED MALE: The thing you can - stricken rephrase. SCHLEICHER: You testified that you're familiar with the term positional asphyxia?

MERCIL: Yes, I am.

SCHLEICHER: Why would you roll someone into the side recovery position after they've been handcuffed and are compliant?

MERCIL: Several reasons are there but one would be to prevent a potential situation where they might be subject to positional asphyxiation.

SCHLEICHER: And how soon is a subject to be placed into the side recovery position after they've become compliant and no longer resistant?

MERCIL: When it's - when the scene is called for and you're able to do it?

SCHLEICHER: In terms of subjects' safety, how soon should the person is put into the side recovery position?

MERCIL: I would say sooner, the better.

SCHLEICHER: Now, you've testified that there are circumstances in which the subject can offer further resistance, even though they're handcuffed. Is that right?

MERCIL: Yes, sir.

SCHLEICHER: I'd like to direct your attention to page 58 of exhibit 219. This slide discusses the maximal restraint technique. Is that right?

MERCIL: That's correct.

SCHLEICHER: Is there another - is there a particular device that's used to accomplish the maximal restraint technique?

MERCIL: Yes, sir. It's the rip restraint or the rip hobble.

SCHLEICHER: Can you please describe the maximum restraint technique to the jury?

MERCIL: Yes sir, if you have a subject that is handcuffed behind their back, generally, and that's the way we like to handcuff people, and they continue to cause a threat to you or other people or themselves. We have taught our officers to use the maximal restraint technique, which is taking this rep restraint, which is a nylon strap with a clamp on it.

And you would wrap that around their legs, and then connect it to the front of the body, if possible, like the belt loop or a second restraint around their waist. And what that does is it bends their legs so that their legs are no longer a threat to kick out at you kind of put their legs in about a 90 degree angle. So they're not able to extend the legs to kick you if they're a threat.

SCHLEICHER: Are you aware that the use of maximal restraint technique is guided - governed by MPD policy?

MERCIL: Yes, sir. It is.

SCHLEICHER: And that's 5-316?

MERCIL: That's correct.

SCHLEICHER: All right. Is there more than one device that's authorized to perform the maximum restraint technique?

MERCIL: I believe right now it's just the rip or the rip hobble is one we use.

SCHLEICHER: And so if an officer reasonably believes that subject is thrashing, would you recommend that they use this maximal restraint technique to ensure their safety?

MERCIL: Yes, sir.

SCHLEICHER: And if they do so in accordance with MPD policy 5-316 and your training, what does the officer need to do after the subject has been placed in the MRT and is prone?

MERCIL: Place them in the recovery position?

SCHLEICHER: How soon?

MERCIL: As soon as possible.

SCHLEICHER: Why?

[12:25:00]

MERCIL: Because when you further restrict their ability to move it can further restrict their ability to breathe.

SCHLEICHER: In terms of the appropriateness of force, would you agree with the proposition that force must be reasonable when it's applied?

MERCIL: Yes, sir.

SCHLEICHER: And would you also agree that circumstances can change? Subject behavior can change?

MERCIL: Yes, sir.

SCHLEICHER: Right. The environment can change?

MERCIL: Yes, sir.

SCHLEICHER: And are you familiar with Minneapolis NPD critical thinking model?

MERCIL: The critical decision making model?

SCHLEICHER: Yes.

MERCIL: Yes sir.

SCHLEICHER: And that's, you know, kind of a graphic that haven't asked the question yet.

UNIDENTIFIED MALE: I'll not be leading with that. Let's try to rephrase this.

SCHLEICHER: Is the critical thinking model of graphical representation of a different concept.

MERCIL: I don't know if I understand the question, sir.

SCHLEICHER: Are you familiar with the concept of reassessment?

MERCIL: Of reassessment, absolutely.

SCHLEICHER: And you describe reassessment to the jury.

MERCIL: Yes, sir. Through the critical decision making model, we've put basically a template together for officers to look at it to understand their thinking processes, and revaluations when you're looking at circumstances that you're involved in. And you're constantly looking for factors to change so you can change your behavior.

SCHLEICHER: And is reassessment something that you've been teaching even before the advent of this model?

MERCIL: Oh, yes, it's paramount that use of force.

SCHLEICHER: And so there can be a time - a point in time when a particular type of force is reasonable. But as time passes, circumstances can change.

MERCIL: Yes, sir.

SCHLEICHER: And then that force would no longer be reasonable.

MERCIL: That's correct.

SCHLEICHER: And if that's the case, what is the officer to do?

MERCIL: They're to change their force.

SCHLEICHER: Thank you, your honor. I have nothing further.

UNIDENTIFIED MALE: Mr. Nelson.

ERIC NELSON, DEFENSE ATTORNEY: May I have just a moment your honor? Good morning, sir.

MERCIL: Good morning. NELSON: I had to check the time. Thank you for being with us today. I have a few follow up questions regarding the training the Minneapolis Police Department provides. You testified that one of your specialties or I believe that you talked about how you develop the ground defense program?

MERCIL: I was one of the people that found it, yes.

NELSON: OK. Can you just describe generally what the ground defense program is?

MERCIL: It's using techniques other than strikes to control individuals. I mean, that's the broad term.

NELSON: And essentially, that was a program that was introduced some 10, 15 years ago to the MPD?

MERCIL: I believe its 10 years now.

NELSON: OK. And that's using different like jujitsu moves or different body control methods versus punching or striking an individual, right?

MERCIL: That's correct.

NELSON: And that was a program again, that you helped develop and found, and you continue to train throughout the Minneapolis Police Department during your time as in the training division, right?

MERCIL: That's correct, sir.

NELSON: And it's fair to say that when you train a police officer, you're training them in particular moves that will help improve their ability to gain compliance of a subject, right?

MERCIL: That's the goal. Yes, sir.

NELSON: But certainly, there is no strict application of every single rule, agreed or every single technique?

MERCIL: That is correct.

NELSON: Officers--

UNIDENTIFIED MALE: Objection--

UNIDENTIFIED MALE: Objection sustained. Compound question, rephrase.

NELSON: Sure.

UNIDENTIFIED MALE: Answers are stricken.

NELSON: There is no strict application of every technique that an officer is trained is there?

MERCIL: No.

NELSON: Officers that are trained to be fluent, correct?

MERCIL: Yes, sir.

NELSON: And sometimes officers have to do things that are unattractive to other people.

MERCIL: Correct.

NELSON: In terms of the use of force.

MERCIL: Yes, sir.

[12:30:00]