The Megyn Kelly Show - Derek Chauvin Trial： Where Things Stand Now, with Alan Dershowitz, Arthur Aidala and Mark Eiglarsh ｜ Ep. 87

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00:00:30.660 Welcome to The Megyn Kelly Show.

00:00:32.540 Your home for open, honest, and provocative conversations.

00:00:41.940 Hey everyone, I'm Megyn Kelly.

00:00:43.620 Welcome to The Megyn Kelly Show.

00:00:45.400 Oh, we have a great show for you today.

00:00:46.880 We're talking about the Derek Chauvin trial,

00:00:48.960 and it is an in-depth look at where we are,

00:00:51.300 and it is an honest and fair look at where we are.

00:00:54.160 Gosh, I've been listening to tons of podcasts

00:00:57.000 and reading tons of reports about the trial

00:00:58.920 because I genuinely want to know what's going on

00:01:01.860 so I can handicap myself

00:01:03.140 because unlike most of these legal analysts,

00:01:05.180 I am fair, as you know.

00:01:06.740 I don't have any horse in this race at all.

00:01:09.320 And I listen to some and they're like,

00:01:10.860 there's no chance he's going to be convicted,

00:01:12.640 no chance whatsoever.

00:01:13.960 He died of a drug overdose, period.

00:01:15.700 The vast majority of the mainstream media

00:01:17.060 is telling you exactly the opposite,

00:01:18.420 that it would be a dereliction of duty,

00:01:19.780 that this is a racist jury

00:01:20.740 if they do anything other than convict of the top count,

00:01:23.000 blah, blah, blah.

00:01:23.300 So we're going to take a hard look at it today,

00:01:25.080 and you're going to get expert analysis,

00:01:26.580 truly expert analysis,

00:01:27.780 from Alan Dershowitz,

00:01:29.500 along with our legal dream team,

00:01:31.780 Arthur Idala and Mark Eiglash,

00:01:34.180 both are former prosecutors,

00:01:35.560 now defense attorneys.

00:01:37.000 And I think you'll hear very thoughtful,

00:01:40.060 insightful points of view.

00:01:41.200 We're going to play you a bunch of the testimony,

00:01:42.600 so if you haven't been keeping that close an eye on it,

00:01:44.580 you'll know everything you need to know

00:01:45.680 about this trial

00:01:46.260 after you listen to this show.

00:01:48.040 And so unlike the rest of your friends,

00:01:49.560 you can actually be informed

00:01:50.800 when talking about this case

00:01:52.780 and when the verdict comes out.

00:01:54.380 So in any event,

00:01:55.700 don't miss this.

00:01:56.700 It's a good show,

00:01:57.340 and I think it's easy to understand,

00:01:59.280 which is always my top goal.

00:02:01.420 On the Cali Five,

00:02:02.040 we used to call it

00:02:02.540 cool water over a hot brain.

00:02:04.280 That's how I want you to feel

00:02:05.120 when you listen to me discuss the news.

00:02:08.200 We'll put the effort in

00:02:09.240 so that we can make it effortless for you,

00:02:11.940 and I think that works.

00:02:13.900 That works for the viewer and the listener,

00:02:15.300 and it's why I have a good relationship

00:02:17.040 with the people who consume our news products.

00:02:20.280 So in any event,

00:02:21.420 enjoy it,

00:02:21.980 because I think it's educational

00:02:22.840 and entertaining at the same time

00:02:24.240 because legal cases can be.

00:02:25.820 They can be long and boring,

00:02:26.800 or they can be entertaining,

00:02:27.720 and this is in the latter category,

00:02:30.100 at least this discussion is.

00:02:31.440 So we're going to start with Alan Dershowitz

00:02:33.200 in one second,

00:02:33.960 but first this.

00:02:40.040 I've been enjoying listening to your podcast.

00:02:42.720 I've been hanging on every word you say

00:02:44.660 about the Chauvin trial,

00:02:45.740 and this is the perfect thing

00:02:47.700 to talk to you about

00:02:48.380 because as you pointed out in your podcast,

00:02:50.560 you have literally spent a career

00:02:52.880 boring over trial transcripts

00:02:55.120 to figure out whether anything is objectionable

00:02:57.120 and a basis for appeal.

00:02:59.000 And so far,

00:03:00.060 how do you think,

00:03:01.180 well,

00:03:01.500 how do you think the judge is doing

00:03:02.940 in his rulings

00:03:03.760 about what's allowed in

00:03:04.960 and what's not allowed in?

00:03:06.860 I think he's opened himself up

00:03:08.740 to appellate reversal

00:03:10.100 on a number of issues.

00:03:12.300 I think the most important one

00:03:13.660 is whether the trial

00:03:15.260 should have been conducted

00:03:16.220 in Minneapolis

00:03:18.300 at the time it was conducted

00:03:20.040 with Minneapolis jurors

00:03:21.500 rather than moving it

00:03:23.180 to a rural area

00:03:24.260 with jurors

00:03:24.940 who wouldn't be as concerned

00:03:25.960 about what the implications

00:03:27.260 of a not guilty verdict

00:03:28.760 might be

00:03:29.300 on their businesses,

00:03:30.340 on their family,

00:03:31.180 on their schools.

00:03:31.760 So here's one of the things

00:03:33.800 I've been noticing

00:03:34.440 and you tell me.

00:03:35.480 The prosecution's case so far

00:03:37.140 has been largely emotional.

00:03:39.100 Now they're getting into

00:03:39.740 the nitty gritty

00:03:40.400 with the legal,

00:03:41.680 with the force experts

00:03:43.260 saying this was excessive.

00:03:44.500 They had the police chief.

00:03:45.420 This was excessive.

00:03:46.980 But even there,

00:03:48.360 they're really trying to layer in

00:03:49.820 emotional witnesses.

00:03:51.740 And both when they put

00:03:53.400 each member of the crowd

00:03:54.740 on the stand

00:03:55.500 and elicited tears

00:03:57.700 and what has this done to you?

00:03:59.560 And when they put on

00:04:01.420 on Wednesday,

00:04:02.840 the store clerk

00:04:03.880 and then the woman 0.68

00:04:04.940 who took the video

00:04:06.000 that we've all been watching,

00:04:07.400 Darnella Frazier,

00:04:08.500 they've been asking

00:04:09.460 emotional questions of them.

00:04:11.440 And I, for the life of me,

00:04:13.480 don't understand

00:04:14.480 why the defense attorney

00:04:16.440 is not up and down

00:04:17.240 on his feet

00:04:17.740 screaming about this

00:04:18.840 because, I mean,

00:04:20.140 with all due respect,

00:04:21.880 why does it matter

00:04:23.140 how witnessing this event

00:04:24.940 has impacted

00:04:27.160 those witnesses

00:04:28.280 or changed their lives?

00:04:29.460 I don't mean to sound cold,

00:04:30.760 but as a legal matter,

00:04:32.040 why is that coming in?

00:04:34.340 You're absolutely right.

00:04:35.620 And I think the defense attorney

00:04:37.000 has to make

00:04:37.700 a calculated decision

00:04:39.060 in this case.

00:04:40.380 The prosecution

00:04:41.140 is overtrying the case.

00:04:42.720 They're putting on

00:04:43.420 too much evidence.

00:04:44.740 They're losing the impact

00:04:46.380 of the dramatic video.

00:04:49.360 When you show a video once,

00:04:50.840 it has an amazing impact

00:04:52.640 on a jury.

00:04:53.680 When you show it

00:04:54.360 the seventh and eighth time,

00:04:55.480 it becomes clinical

00:04:56.320 and the impact is lost.

00:04:58.120 And when you put

00:04:59.240 10 witnesses,

00:05:00.300 15, 20 witnesses

00:05:01.420 who repeat the same thing

00:05:02.960 and there were news reports

00:05:03.800 that at least one,

00:05:04.960 maybe two of the jurors

00:05:05.780 were dozing off,

00:05:07.080 it really shows you

00:05:08.160 you're losing

00:05:08.840 the impact of your case.

00:05:10.320 And so the defense

00:05:11.580 may be strategizing,

00:05:12.800 look, let them

00:05:13.420 over try their case.

00:05:14.600 I've had cases like that

00:05:15.820 over the years

00:05:16.920 where the prosecution

00:05:17.760 has gone on weeks

00:05:19.020 and months

00:05:19.520 and we've won

00:05:20.260 all the time

00:05:21.100 because you lose

00:05:22.640 your jury

00:05:23.260 after a relatively

00:05:24.460 short period of time.

00:05:26.300 But legally,

00:05:27.420 they should be

00:05:28.160 preserving the issue

00:05:29.360 of overly emotional testimony.

00:05:33.100 Look, there were only

00:05:33.880 three legal issues

00:05:35.300 in this case.

00:05:36.380 One of them is scientific.

00:05:38.460 Did the knee on the neck

00:05:40.180 cause the death

00:05:41.480 of George Floyd?

00:05:44.240 That's a scientific question.

00:05:46.580 What impacted

00:05:47.340 his drug use?

00:05:48.300 What impacted

00:05:48.880 his heart condition,

00:05:50.540 his high blood pressure,

00:05:51.740 have on the death?

00:05:53.320 And that's going

00:05:54.620 to be determined

00:05:55.700 by the instruction

00:05:57.200 that the judge gives

00:05:58.340 because the jury's

00:05:59.060 going to come

00:05:59.380 to two conclusions.

00:06:00.760 They're going to conclude

00:06:01.540 that but for the knee

00:06:02.400 on the neck

00:06:02.800 he'd still be alive today

00:06:03.940 but they will also

00:06:04.820 likely come to the conclusion

00:06:06.140 that but for his drug use,

00:06:08.520 but for his high blood pressure

00:06:09.880 and his heart condition,

00:06:11.280 he might still have survived

00:06:12.600 the knee on the neck.

00:06:13.500 So there were at least

00:06:14.380 two significant causes

00:06:16.160 of his death

00:06:17.720 and the judge

00:06:18.360 is going to have to tell them

00:06:19.360 how to resolve

00:06:20.280 that issue

00:06:21.160 beyond a reasonable doubt.

00:06:22.380 So that's issue number one.

00:06:24.040 Issue number two

00:06:24.680 is what was his level

00:06:25.580 of intentionality?

00:06:26.560 You only get to that issue

00:06:27.640 if you get by the causation

00:06:29.620 because causation

00:06:30.340 is a prerequisite

00:06:31.120 for any homicide prosecution.

00:06:33.380 Remember,

00:06:33.720 this is not a reckless

00:06:34.800 endangerment case.

00:06:35.940 There are states

00:06:36.560 that have statutes

00:06:37.740 saying if you put somebody

00:06:38.820 at great risk of death,

00:06:39.980 that's an independent crime.

00:06:41.300 You don't have to

00:06:41.560 support causation

00:06:42.260 but they haven't charged

00:06:43.600 them with that.

00:06:44.000 They've only charged

00:06:44.880 them with homicide

00:06:45.560 and so you've got

00:06:47.060 to get past causation

00:06:48.180 and then you get

00:06:48.700 the level of intent

00:06:49.540 and that gets

00:06:50.640 to the three charges

00:06:51.740 that have been made here.

00:06:53.100 Second degree murder,

00:06:54.040 third degree murder

00:06:54.760 and second degree manslaughter.

00:06:56.360 I don't think

00:06:57.040 they've made

00:06:57.540 the murder charges.

00:06:58.560 I think they have

00:06:59.340 made a strong case

00:07:00.580 on manslaughter

00:07:01.260 and that will depend

00:07:02.940 a little bit

00:07:03.420 on whether he takes

00:07:04.140 the witness stand

00:07:04.880 and if he testifies

00:07:06.020 that will go directly

00:07:07.060 to his intent.

00:07:08.840 And what's the third issue?

00:07:10.180 You said there are

00:07:10.540 three issues here,

00:07:11.200 scientific,

00:07:11.780 level of intentionality.

00:07:12.680 The third issue

00:07:13.120 is whether or not

00:07:14.300 felony murder

00:07:14.980 applies in a case like this.

00:07:16.440 So in most jurisdictions

00:07:18.360 for felony murder

00:07:19.560 to apply,

00:07:20.620 you need to have

00:07:21.260 an independent felony.

00:07:23.200 That is,

00:07:23.560 you go to rob a bank

00:07:24.520 and the process

00:07:25.660 there's a shootout,

00:07:26.460 somebody dies,

00:07:27.100 you didn't intend

00:07:27.720 to kill them, 0.83

00:07:28.300 you're guilty

00:07:28.840 because it was

00:07:29.380 an independent felony,

00:07:30.800 the bank robbery.

00:07:31.820 You rape somebody. 0.92

00:07:33.220 In the course of the rape, 0.95

00:07:34.160 you put your hand

00:07:34.800 over her mouth 0.99

00:07:35.440 in order to stop her

00:07:36.220 from screaming,

00:07:37.200 she dies.

00:07:38.420 The rape is an 0.96

00:07:39.180 independent felony,

00:07:40.160 that's felony murder.

00:07:41.200 But in most jurisdictions,

00:07:43.160 if the underlying felony

00:07:44.420 is assault,

00:07:45.300 it's so closely

00:07:46.620 connected to the death

00:07:48.020 that it doesn't provide

00:07:49.460 a basis for felony murder.

00:07:51.680 And when you add to that,

00:07:53.120 in this case,

00:07:53.820 all the prosecution witnesses

00:07:55.100 seem to concede

00:07:56.140 that initially putting

00:07:58.000 the knee on the neck

00:07:59.180 may not have been a crime.

00:08:01.420 It became a crime

00:08:02.940 over time

00:08:04.300 when it was clear

00:08:05.820 that he was disabled,

00:08:07.100 that he was not breathing,

00:08:08.260 that he was unconscious.

00:08:09.860 Every expert says

00:08:11.040 at that point

00:08:11.640 he should have lifted

00:08:12.280 the knee off the neck.

00:08:13.120 But when you have

00:08:14.180 a situation

00:08:14.900 that's a matter of degree

00:08:16.220 that it evolves

00:08:17.380 from proper police procedure

00:08:20.340 to unlawful police procedure,

00:08:22.740 that doesn't provide

00:08:24.120 a foundation

00:08:25.140 for a felony murder prosecution.

00:08:27.000 So I think

00:08:27.500 second-degree murder

00:08:28.760 is going to be thrown out

00:08:29.600 by the judge.

00:08:30.220 It certainly should be.

00:08:31.640 And then we get

00:08:32.260 the third-degree murder,

00:08:33.220 which is very difficult

00:08:34.180 because it says

00:08:35.040 you have to endanger

00:08:36.280 the life of others.

00:08:38.180 And others,

00:08:39.080 the plain meaning

00:08:39.840 is beyond

00:08:40.820 the victim himself,

00:08:42.020 like in the case

00:08:43.920 where they shot

00:08:44.640 into a darkened room

00:08:45.900 and killed the woman 0.81

00:08:47.340 but also endangered

00:08:48.420 the lives of the people

00:08:49.580 in the apartment next door.

00:08:51.720 That doesn't happen

00:08:52.880 with the knee on the neck.

00:08:53.940 Only the person

00:08:55.000 who's the victim

00:08:55.620 was endangered.

00:08:57.140 So the judge

00:08:57.800 may throw out

00:08:58.940 the murder prosecution.

00:08:59.880 I don't think he will.

00:09:01.220 I don't think he'll throw out

00:09:02.240 third-degree murder,

00:09:03.420 but he should.

00:09:04.540 And then we're at manslaughter,

00:09:05.760 and that's a very solid case.

00:09:07.920 Mm-hmm.

00:09:08.800 First of all,

00:09:09.180 this is exactly the conversation

00:09:10.240 I want to be having.

00:09:10.800 I love the way

00:09:12.140 your mind works.

00:09:12.780 I love the linear thinking.

00:09:13.780 So easy to follow.

00:09:15.080 I want to go through

00:09:15.800 these with you

00:09:16.240 because I totally,

00:09:17.500 you won't be surprised

00:09:18.120 to agree with everything

00:09:18.820 you said in terms

00:09:19.520 of what the legal issues are

00:09:21.100 and how we should be

00:09:21.660 thinking about these.

00:09:22.900 So let's start

00:09:23.560 with scientific.

00:09:24.440 Did the knee

00:09:25.420 cause the death?

00:09:27.520 And you rightly point out

00:09:29.060 that the jury's going to say

00:09:30.580 the knee was a factor.

00:09:33.300 They're likely to conclude

00:09:34.400 the knee was a factor.

00:09:36.740 And we'll see the defense.

00:09:37.740 It was a but-for factor.

00:09:40.680 But for the knee,

00:09:41.580 he'd still be alive today.

00:09:42.800 But but-for isn't enough.

00:09:45.060 Right.

00:09:45.220 It has to be proximate cause.

00:09:46.280 It has to be closer in time to that.

00:09:47.700 Like if you get diagnosed,

00:09:48.980 a man finds out his wife has cancer

00:09:51.580 and he drives through the streets

00:09:52.920 like a crazy man

00:09:53.740 to get to her at her workplace

00:09:55.600 to comfort her,

00:09:56.520 and he hits somebody,

00:09:57.960 you could say,

00:09:58.740 but for her cancer,

00:09:59.640 the person wouldn't have been hit.

00:10:01.060 But that's not enough

00:10:01.640 to impose legal.

00:10:02.340 You have to get it has to be closer

00:10:03.960 the cause and more intimately

00:10:05.960 tied to the event.

00:10:06.660 And that's what they have

00:10:07.560 to prove with him.

00:10:08.140 But I want to ask you

00:10:09.400 because I did look at this

00:10:11.260 and the Minneapolis star,

00:10:14.380 I think it is,

00:10:14.740 has been doing really good

00:10:15.420 reporting on this.

00:10:16.280 And they,

00:10:17.580 according to them,

00:10:20.780 the Minnesota law

00:10:22.340 does not require,

00:10:23.900 does not require the prosecution

00:10:25.340 to prove that Chauvin alone

00:10:27.780 caused George Floyd's death.

00:10:29.480 And that they said,

00:10:31.220 according to the states

00:10:32.460 and the defenses,

00:10:34.640 both sides proposed jury instructions.

00:10:38.160 They have,

00:10:38.880 they have conceded,

00:10:39.760 both sides concede

00:10:40.560 that to cause means

00:10:43.340 to be a substantial causal factor.

00:10:46.980 And the fact that other causes

00:10:49.420 contributed to the death

00:10:51.200 does not relieve the defendant

00:10:55.020 of criminal liability.

00:10:56.680 So if the defense

00:10:57.960 has actually already conceded

00:10:59.760 that in its proposed

00:11:01.020 jury instructions,

00:11:02.380 I mean,

00:11:02.580 that could be ballgame,

00:11:03.680 Alan, right?

00:11:04.260 If they're conceding.

00:11:05.280 It could be.

00:11:06.100 It could be.

00:11:06.660 If they're conceding all,

00:11:08.640 right,

00:11:08.920 that all that needs to be proven

00:11:10.120 is that the knee on the neck

00:11:11.440 was one cause

00:11:12.720 and you got him.

00:11:14.300 That's a terrible outcome

00:11:15.580 for the defense.

00:11:17.780 Absolutely.

00:11:18.360 It's a terrible concession.

00:11:19.420 It's wrong as a matter of law.

00:11:21.480 If you shoot somebody

00:11:22.640 in the leg

00:11:23.300 and it's a non-lethal wound

00:11:25.240 and they take him to a hospital

00:11:26.400 and the doctor engages

00:11:28.000 in malpractice

00:11:29.120 and kills him

00:11:30.220 on the operating table,

00:11:31.760 that would not be a homicide,

00:11:34.420 even though,

00:11:35.080 but for the shooting of the leg,

00:11:36.740 he would never have been

00:11:37.620 taken to the hospital.

00:11:39.460 It has to be more than

00:11:41.000 just one of many

00:11:43.020 contributing causes.

00:11:44.180 It has to be

00:11:44.800 a very dominant cause.

00:11:47.180 It has to be

00:11:47.760 the essential cause.

00:11:50.040 But courts use

00:11:51.180 all kinds of fuzzy language

00:11:52.860 around here

00:11:53.420 and they leave it to the jury.

00:11:54.860 They use substantial cause,

00:11:56.320 significant cause,

00:11:58.520 proximate cause.

00:11:59.400 Nobody knows

00:11:59.880 what proximate cause means.

00:12:01.200 Everybody who's taking torts

00:12:02.260 in law school

00:12:03.300 was, you know,

00:12:04.060 their mind was boggled

00:12:05.100 over proximate cause,

00:12:06.580 the cases that we studied.

00:12:08.920 And, you know,

00:12:09.660 I used to teach this

00:12:10.480 all the time

00:12:11.320 in my criminal law cases.

00:12:13.280 A man goes into

00:12:14.340 a woman's apartment

00:12:15.200 and threatens to rape her

00:12:17.460 and she jumps out the window 0.99

00:12:18.480 to commit suicide.

00:12:19.540 Did she rather die

00:12:20.300 than be raped?

00:12:20.820 Is that sufficiently

00:12:23.100 closely connected

00:12:24.260 or was her own decision

00:12:26.780 to jump out the window

00:12:28.100 the most significant

00:12:30.340 cause of her death?

00:12:31.680 These are questions

00:12:32.580 that juries have been deciding

00:12:34.520 for centuries

00:12:36.020 and usually they're told

00:12:37.860 to use their common sense.

00:12:39.220 And I think that's why

00:12:40.540 the state is trying

00:12:41.560 to make a strong moral case.

00:12:43.000 Look, morally,

00:12:44.100 morally,

00:12:44.840 there's no justification

00:12:45.820 for what Officer Chauvin did.

00:12:47.760 He was justly fired.

00:12:49.280 He is justly condemned.

00:12:51.040 What he did was wrong,

00:12:52.280 keeping the knee on the neck

00:12:53.240 for as long as he did.

00:12:54.660 He deserves a special place

00:12:55.960 in hell for that.

00:12:56.740 But does he deserve

00:12:57.500 to go to prison for homicide?

00:12:59.300 That's a very different question.

00:13:01.860 And my worry is that

00:13:03.140 the crowds outside

00:13:04.560 are merging those questions.

00:13:06.760 And remember,

00:13:07.260 this is not a sequestered jury.

00:13:08.820 They go home every night.

00:13:10.080 They're told not to watch television.

00:13:11.580 They're told not to talk

00:13:12.420 to their spouses about the case.

00:13:13.900 But we know that

00:13:15.120 these matters leak to the jury.

00:13:17.340 They know that there are people

00:13:19.120 out there saying,

00:13:20.340 if there's not a murder conviction

00:13:21.420 in this case,

00:13:22.140 there's going to be

00:13:22.680 a Rodney King response

00:13:23.860 or there's going to be

00:13:25.220 economic pressures and reactions.

00:13:27.000 So I worry that the jury

00:13:29.420 can really do justice

00:13:31.780 and distinguish the moral

00:13:34.920 from the legal case here.

00:13:36.520 The judge seems pretty good.

00:13:38.960 I think he's generally ruling

00:13:40.500 in favor of the prosecution.

00:13:41.800 That's often the case.

00:13:43.520 And as I tell my clients,

00:13:45.400 every time you get

00:13:46.160 a bad ruling at trial,

00:13:47.260 that's good for me

00:13:47.960 as an appellate lawyer.

00:13:49.200 And every time you get

00:13:49.960 a good ruling at trial,

00:13:50.920 that's bad for me

00:13:51.720 as an appellate lawyer.

00:13:52.660 So I think there are

00:13:54.060 appellate issues piling up.

00:13:55.700 And I do think

00:13:56.380 if I had to make a guess

00:13:57.880 that there will be

00:13:59.040 a conviction of some kind

00:14:00.660 in this case.

00:14:01.320 But, you know,

00:14:02.040 until the defendant

00:14:02.960 takes the witness stand

00:14:03.880 or decides whether

00:14:04.720 to take the witness stand,

00:14:06.060 none of us can make

00:14:06.900 a valid prediction.

00:14:07.880 You know, I have a friend

00:14:08.460 who used to charge

00:14:09.000 $100,000 to try a criminal case.

00:14:11.160 And he would tell the client,

00:14:12.220 look, $5,000

00:14:12.900 is for what I do

00:14:14.240 in the courtroom,

00:14:14.940 $95,000 is for my advice

00:14:17.900 on whether you should

00:14:18.840 take the witness stand

00:14:19.720 or not.

00:14:20.380 Because that is the most

00:14:21.680 crucial issue

00:14:22.640 in any criminal case.

00:14:24.460 I have to tell you,

00:14:25.340 when I go to prisons

00:14:26.060 and visit my clients,

00:14:27.680 they have their friends

00:14:29.340 all come over,

00:14:30.260 you know,

00:14:30.460 I'm a celebrity lawyer,

00:14:31.460 they talk to me.

00:14:32.400 They all have one thing

00:14:33.380 in common.

00:14:33.840 They blame bringing

00:14:34.700 in prison on their lawyers.

00:14:36.120 Half of them blame

00:14:36.940 their lawyers

00:14:37.420 for putting them

00:14:38.000 on the stand.

00:14:38.840 The other half blame 0.50

00:14:39.880 their lawyers

00:14:40.280 for not putting them

00:14:41.060 on the stand.

00:14:42.240 The decision

00:14:42.980 to put a client

00:14:43.780 on the stand

00:14:44.500 is the crucial issue.

00:14:46.340 I don't think

00:14:46.660 it's been made

00:14:47.140 in this case

00:14:47.680 and it shouldn't be made

00:14:49.200 until the close

00:14:49.940 of the prosecution's case.

00:14:51.420 I think in the end

00:14:52.880 they're going to have

00:14:53.440 to put them on the stand

00:14:54.340 because I think

00:14:55.200 the case for causation

00:14:56.340 has been strong enough

00:14:58.160 to overcome

00:14:59.880 a motion for dismissal.

00:15:01.620 Here's the way

00:15:01.960 it's going to work.

00:15:02.680 At the close

00:15:03.260 of the government's case,

00:15:04.540 the defense will make

00:15:05.360 a motion to dismiss,

00:15:06.340 to get rid of

00:15:07.000 murder two.

00:15:08.640 And maybe they'll succeed

00:15:09.860 but they won't succeed

00:15:10.820 on murder three

00:15:11.480 and they won't succeed

00:15:12.260 on manslaughter.

00:15:13.640 And it's at that point

00:15:14.940 that the decision

00:15:15.740 will be made

00:15:16.440 whether to put him

00:15:17.500 on the stand.

00:15:18.120 Now if you put him

00:15:18.580 on the stand,

00:15:19.220 it opens up

00:15:20.460 the prosecution

00:15:21.540 to ask him

00:15:22.520 all kinds of questions

00:15:23.540 about his background.

00:15:24.980 Questions which might

00:15:25.760 not otherwise come in

00:15:27.160 if he doesn't take the stand.

00:15:28.600 It was a very,

00:15:29.780 very hard decision.

00:15:31.680 Right.

00:15:32.180 Like the complaints

00:15:32.980 that have been leveled

00:15:33.920 against Derek Chauvin

00:15:35.020 in the past

00:15:35.600 over his 19 plus year career

00:15:37.400 and each one of those

00:15:38.600 will be blown up

00:15:39.360 into, you know,

00:15:40.140 a pattern.

00:15:40.500 They're trying to argue

00:15:41.060 it's a pattern.

00:15:41.660 They're going to try

00:15:42.340 to get it in either way

00:15:43.420 even if he doesn't testify

00:15:44.340 claiming it's a pattern

00:15:45.220 but it's a slam dunk

00:15:47.640 for the prosecution

00:15:48.260 if he takes a stand.

00:15:50.360 I think that's right

00:15:51.000 because it comes in then

00:15:51.940 on credibility,

00:15:53.260 on other issues

00:15:54.160 whereas if they're trying

00:15:55.080 to put it on as a pattern,

00:15:56.960 other crimes evidence

00:15:58.080 generally doesn't come in

00:15:59.360 and also complaints

00:16:00.660 don't generally come in.

00:16:01.920 They have to be validated

00:16:02.960 and there haven't been

00:16:03.820 And only two of them.

00:16:04.860 Only two of them

00:16:05.800 were reported.

00:16:06.300 Okay, so I want to get

00:16:07.200 to intentionality

00:16:08.300 and whether Chauvin

00:16:08.840 will take the stand

00:16:09.400 in one second

00:16:09.760 but let's just stay

00:16:10.440 on scientific.

00:16:11.940 Did the knee cause

00:16:12.560 the death?

00:16:13.020 Number one.

00:16:13.520 So since we do believe

00:16:14.720 according to the

00:16:15.760 Minneapolis Star Tribune

00:16:16.860 that the defense

00:16:17.700 has already conceded

00:16:18.940 and that the Minneapolis

00:16:20.300 or the Minnesota guidelines

00:16:21.580 for jury instructions

00:16:22.460 kind of forced them

00:16:23.560 to concede

00:16:24.140 that Chauvin's actions

00:16:25.760 only have to be

00:16:26.460 one of the causes

00:16:28.400 of Floyd's death.

00:16:29.160 So that puts the defense

00:16:30.080 behind the eight ball

00:16:30.780 starting off.

00:16:31.940 But that doesn't

00:16:32.520 but he's

00:16:33.140 Nelson, the defense lawyer

00:16:34.280 is not giving up on this.

00:16:35.400 He is definitely

00:16:36.360 going to argue

00:16:37.220 that Derek Chauvin's knee

00:16:38.660 did not cause the death.

00:16:40.480 He's not conceding that.

00:16:41.920 He's putting on evidence

00:16:43.120 through the police officers

00:16:45.440 who are taking the stand

00:16:46.260 right now to say

00:16:46.980 this was out of line,

00:16:47.860 this wasn't with policy,

00:16:49.220 it was excessive force,

00:16:50.640 showing them video

00:16:51.740 of how the knee

00:16:53.360 actually may not

00:16:54.800 have been on the neck.

00:16:55.820 It may have been

00:16:56.720 on the shoulders.

00:16:57.520 And they have coming up

00:16:59.520 they have coming up

00:17:01.060 the medical examiner,

00:17:03.080 the only one

00:17:03.920 to actually do an autopsy

00:17:05.440 on George Floyd,

00:17:06.980 this guy Baker.

00:17:08.180 He is going to testify

00:17:09.700 that he concluded

00:17:11.660 this was not a death

00:17:13.140 caused by asphyxia

00:17:14.440 or the lack of oxygen

00:17:15.620 caused by knee

00:17:17.040 on anything,

00:17:18.040 that this was a heart attack.

00:17:19.760 That's what he concluded,

00:17:20.740 a heart attack

00:17:21.440 caused by

00:17:23.140 arteries that were

00:17:25.100 75 to 80 percent

00:17:26.800 occluded

00:17:28.120 and other,

00:17:30.500 you know,

00:17:30.780 health issues

00:17:31.760 that George Floyd had

00:17:32.560 and the drugs in him,

00:17:33.920 fentanyl,

00:17:34.440 methamphetamine

00:17:35.180 and maybe others.

00:17:37.020 And he basically says

00:17:38.560 it was all complicated

00:17:39.560 by like the knee

00:17:41.480 on the neck

00:17:41.860 was a complicating factor,

00:17:43.380 I guess he suggests.

00:17:44.240 I could get the exact language.

00:17:46.260 But Nelson's doing

00:17:47.520 a pretty decent job

00:17:48.420 of saying

00:17:49.360 the knee wasn't

00:17:50.620 on the neck

00:17:51.120 and you're going to hear

00:17:52.080 from a medical examiner

00:17:53.100 who says

00:17:53.660 it wasn't the cause.

00:17:55.640 Look,

00:17:55.780 I think he's doing

00:17:56.600 a very good job

00:17:57.280 on the issue of causation.

00:17:58.520 But if I'm the prosecutor,

00:17:59.440 I ask each of the witnesses

00:18:00.560 one question.

00:18:02.280 If Chauvin

00:18:03.520 had not put his knee

00:18:04.940 on the neck,

00:18:06.080 would George Floyd

00:18:07.500 still be alive today

00:18:08.860 with a heart condition,

00:18:10.080 with high blood pressure,

00:18:11.040 with an addiction problem?

00:18:12.780 But would he be

00:18:13.420 walking around today

00:18:14.380 or would he have

00:18:15.140 just dropped dead

00:18:16.140 in the middle of the street

00:18:17.060 if he had never met Chauvin?

00:18:19.200 And if the answer

00:18:19.860 to that question is

00:18:20.940 he'd still be alive today,

00:18:22.300 then it's going

00:18:23.600 to be very hard

00:18:24.480 not to acknowledge

00:18:25.700 that the knee

00:18:26.780 on the neck

00:18:27.180 was a significant

00:18:28.340 contributing factor.

00:18:29.980 Well, I agree with that.

00:18:30.000 I agree.

00:18:30.400 But the defense

00:18:31.480 has gotten on

00:18:32.500 a bunch of stuff

00:18:33.940 about just how

00:18:34.880 intoxicated

00:18:36.420 or high

00:18:37.900 George Floyd was,

00:18:39.840 the amount of drugs

00:18:41.140 in his system.

00:18:41.920 And the defense

00:18:42.660 has gotten a ruling

00:18:43.520 that George Floyd's

00:18:44.920 May of 19,

00:18:46.380 a year earlier,

00:18:47.240 arrest can come in,

00:18:48.100 in part.

00:18:48.500 that he did

00:18:49.440 in that arrest

00:18:49.920 call out for his mama.

00:18:51.260 He did claim

00:18:51.680 he couldn't breathe.

00:18:52.660 They're not going

00:18:53.340 to be allowed

00:18:53.720 to introduce that.

00:18:54.480 But they are going

00:18:55.140 to be allowed

00:18:55.540 to introduce

00:18:56.180 the fact that

00:18:57.200 when he got arrested,

00:18:58.520 he started

00:18:59.640 shoving a bunch

00:19:00.620 of drugs in his mouth

00:19:01.620 and started behaving crazy

00:19:03.380 and that this is a pattern

00:19:05.720 because what we've learned

00:19:07.000 so far in this trial

00:19:07.800 is that not only

00:19:08.600 did he have all these drugs

00:19:09.300 in his system,

00:19:10.040 enough to kill

00:19:10.760 any normal man,

00:19:12.600 they found drugs

00:19:14.480 in the back

00:19:14.960 of the cop car

00:19:15.820 and in the back

00:19:16.480 of the car Floyd

00:19:17.140 had been in

00:19:17.860 that were,

00:19:19.180 I guess they're called

00:19:19.860 speed balls.

00:19:20.820 It's a mix

00:19:21.320 of two very potent drugs.

00:19:23.300 With his DNA,

00:19:24.360 he had been,

00:19:25.040 like,

00:19:25.500 they'd either been

00:19:26.080 in his mouth

00:19:26.580 or he'd licked them,

00:19:27.660 but it's his mouth DNA

00:19:28.940 all over these drugs.

00:19:29.680 So they're going to say

00:19:30.720 this is what George Floyd did.

00:19:32.300 He had done something,

00:19:33.900 he had rectally inserted drugs

00:19:35.700 before this whole thing.

00:19:37.220 He had taken fentanyl,

00:19:38.700 he had taken methamphetamine

00:19:39.800 and when,

00:19:40.640 either before

00:19:41.120 or after the cop stopped him,

00:19:42.340 he started shoving

00:19:43.220 in those pills like candy

00:19:44.400 because it had worked

00:19:45.560 for him before

00:19:46.520 in trying to get redirected

00:19:47.840 to a hospital

00:19:48.660 instead of a prison.

00:19:50.460 I agree with that

00:19:51.560 and the prosecution

00:19:52.960 is taking a very

00:19:54.600 chancy road

00:19:55.660 when they say

00:19:56.400 this guy was

00:19:57.540 so addicted to drugs,

00:19:59.160 he used so many drugs

00:20:00.780 for such a long period

00:20:02.140 of time

00:20:02.600 that he built up

00:20:03.720 a tolerance

00:20:04.240 and that although

00:20:05.220 this amount of drug

00:20:06.460 would kill a normal person

00:20:08.080 who tried it

00:20:08.740 for the first time

00:20:09.480 or the second

00:20:09.900 or the third time,

00:20:10.960 it wasn't enough

00:20:11.940 to kill this guy

00:20:13.080 who had such

00:20:13.920 a serious drug problem.

00:20:15.620 That's obviously

00:20:16.520 a knife that cuts both ways

00:20:17.960 with the jury

00:20:19.020 which is why

00:20:20.120 I think

00:20:20.740 the prosecution

00:20:21.920 is trying to paint Floyd

00:20:23.800 as somebody

00:20:24.820 who was trying

00:20:25.760 desperately

00:20:26.320 to end his addiction problem

00:20:28.240 with his girlfriend

00:20:29.640 and acknowledging

00:20:31.160 that they had

00:20:31.820 a medical problem.

00:20:33.760 So again,

00:20:35.180 the jurors

00:20:35.880 are going to be

00:20:36.440 very, very influenced

00:20:38.220 by the totality

00:20:40.280 of the circumstances.

00:20:41.320 Do they like George Floyd?

00:20:43.380 Do they think of him

00:20:44.160 as a positive person?

00:20:45.920 And then if the defendant

00:20:47.100 takes the witness stand

00:20:48.280 and appears

00:20:49.320 like a soldier

00:20:50.500 doing his duty,

00:20:52.080 yes ma'am,

00:20:52.860 yes sir,

00:20:53.900 Sergeant Friday,

00:20:55.240 maybe I went

00:20:56.400 a little too far here,

00:20:57.380 I'm so sorry

00:20:58.140 for the death,

00:20:59.300 you may get

00:21:00.180 a dynamic

00:21:01.000 in the jury deliberations

00:21:02.680 that favors

00:21:03.360 the defendant.

00:21:05.060 So I think

00:21:05.780 both sides

00:21:06.460 are trying to create

00:21:07.440 an emotional background

00:21:09.000 so that the jury

00:21:10.560 can view the evidence

00:21:12.240 through the prism

00:21:13.320 of either

00:21:14.120 a positive view

00:21:14.980 of Chauvin

00:21:15.420 or a positive view

00:21:16.340 of George Floyd.

00:21:17.380 And so far,

00:21:18.660 I think the prosecution

00:21:19.360 is winning that case,

00:21:20.740 but we have to reserve judgment

00:21:22.160 until we hear from Chauvin

00:21:23.340 if he testifies.

00:21:24.300 If he doesn't testify,

00:21:25.860 I think he will be convicted

00:21:27.520 at the very least

00:21:28.860 of manslaughter.

00:21:29.740 If he does testify,

00:21:30.880 all bets are off.

00:21:32.340 We don't know.

00:21:33.280 So you're leaning

00:21:33.840 toward putting him on

00:21:34.780 if he's your client?

00:21:35.960 I am leaning

00:21:36.780 to putting him on

00:21:37.480 if I lose my motion.

00:21:38.840 If I win my motion

00:21:40.100 to get rid of the murder charges,

00:21:41.720 I don't put him on.

00:21:42.740 If I lose my motion

00:21:43.980 and the murder charges

00:21:45.540 are in front of the jury,

00:21:46.920 I make strong objections

00:21:47.880 to that,

00:21:48.920 but I put him on.

00:21:49.640 Look, I fought like heck

00:21:50.820 to keep O.J. Simpson

00:21:51.820 off the witness stand

00:21:53.180 because we had

00:21:54.080 a strong scientific case

00:21:56.140 and he would have been

00:21:57.300 a terrible,

00:21:58.300 terrible witness.

00:21:59.260 F. Lee Bailey

00:21:59.840 fought hard to put him

00:22:00.780 on the witness stand.

00:22:02.180 And I actually threatened

00:22:03.500 to quit the case

00:22:04.200 if they put him

00:22:04.700 on the witness stand

00:22:05.460 because I just thought

00:22:07.280 we would be engaged

00:22:08.920 in malpractice.

00:22:10.820 And I think I was proved right.

00:22:12.480 The jury acquitted him

00:22:13.420 and the civil jury

00:22:14.180 when he took the witness stand

00:22:15.300 convicted him.

00:22:16.460 So the decision

00:22:17.260 to put a defendant

00:22:18.160 on the stand

00:22:19.000 is such a difficult one.

00:22:20.840 You have to know

00:22:21.480 the defendant.

00:22:22.500 You have to have prepared him

00:22:23.800 for everything.

00:22:25.260 I hope they've prepared him.

00:22:26.420 I'm sure they have prepared him

00:22:27.580 to take the stand

00:22:28.400 unless they've already

00:22:29.580 made the decision not to,

00:22:30.820 which I doubt they have.

00:22:31.700 So and that the next question is,

00:22:34.300 OK, so because we do have

00:22:35.200 to talk about his intentionality

00:22:36.940 and if that second degree

00:22:38.100 murder charge stays,

00:22:39.420 then then this is 100 percent

00:22:41.560 going to be something

00:22:42.140 they they talk about.

00:22:43.560 And now they're they

00:22:44.260 call it unintentional murder,

00:22:46.720 but it does require

00:22:48.040 a level of intentionality.

00:22:49.380 And we'll get to that

00:22:50.160 in one second.

00:22:50.760 Now, I want to ask you this,

00:22:52.320 though, before we get there,

00:22:53.060 because you mentioned

00:22:53.700 and we talked about

00:22:54.480 for a second

00:22:55.000 the emotionality of the trial.

00:22:56.940 And this is clearly

00:22:57.580 the prosecution's best dynamic,

00:23:00.540 right?

00:23:00.700 Just how awful the tape looks

00:23:02.200 and how it makes us all feel

00:23:03.420 and the voices of the bystanders.

00:23:05.460 And one of the I mentioned

00:23:07.320 what I thought

00:23:07.940 some of the testimony

00:23:08.620 was objectionable.

00:23:09.740 And here's just one example

00:23:11.040 from Wednesday.

00:23:11.720 OK, so this is Darnella Frazier.

00:23:13.380 Again, she's the one who filmed.

00:23:15.140 It's her tape that we're looking at

00:23:17.720 all the time when we see the video

00:23:19.160 of the George Floyd death.

00:23:21.320 You tell me whether

00:23:21.920 this is appropriate.

00:23:23.200 When I look at George Floyd,

00:23:25.500 I look at I look at my dad.

00:23:28.520 I look at my brothers.

00:23:30.980 I look at my cousins.

00:23:32.740 My uncles.

00:23:34.020 Because they are all black. 1.00

00:23:35.680 I have a black father.

00:23:37.380 I have a black brother.

00:23:38.540 I have black friends.

00:23:41.820 And I look at that

00:23:43.500 and I look at how that

00:23:45.120 could have been one of them.

00:23:47.380 It's the night

00:23:48.320 I stayed up

00:23:49.880 apologizing

00:23:52.320 and

00:23:52.900 and

00:23:54.760 apologizing

00:23:57.120 to George Floyd

00:23:58.580 for not doing more

00:23:59.860 and not

00:24:01.660 physically interacting

00:24:04.660 and

00:24:05.240 not saving his life.

00:24:08.660 Going on about how

00:24:10.200 like the color

00:24:11.560 of her brother and her father,

00:24:13.220 there's been no evidence

00:24:14.280 this is a case about

00:24:15.580 racism.

00:24:16.380 What's that doing in there?

00:24:18.360 Well, there are

00:24:19.080 a number of black jurors

00:24:20.300 and obviously

00:24:21.460 this is an attempt

00:24:22.600 to appeal

00:24:23.460 to issues

00:24:24.840 regarding

00:24:25.340 race

00:24:26.220 and I think

00:24:26.920 it has no place

00:24:27.660 in the trial.

00:24:28.480 If I were the defense attorney,

00:24:29.700 I would have objected

00:24:30.640 to it.

00:24:31.640 But it's very hard

00:24:32.580 to object

00:24:33.120 to emotional testimony

00:24:34.640 when somebody is

00:24:35.700 crying

00:24:36.320 or has tears

00:24:37.760 in their eyes.

00:24:38.560 Jurors want to hear it.

00:24:39.720 They don't want to

00:24:40.500 hear the defense

00:24:41.500 object to it.

00:24:42.600 That's why

00:24:42.980 these motions

00:24:43.640 should be made

00:24:44.360 as in limiting motions

00:24:45.560 outside the hearing

00:24:46.880 of the jury

00:24:47.480 and they should have

00:24:48.600 established ground rules

00:24:49.640 early on

00:24:50.480 as to what's permissible

00:24:51.760 and what's not permissible.

00:24:52.800 Also, I think the defense

00:24:53.880 should have asked

00:24:54.580 for the judge's instructions

00:24:56.480 before the trial began

00:24:58.900 so that they can

00:25:00.240 make sure

00:25:01.100 their testimony

00:25:01.840 fits into

00:25:02.680 what the judge

00:25:03.280 is going to instruct

00:25:04.020 on issues

00:25:04.980 of causation intent.

00:25:06.200 As you say,

00:25:06.720 we already know

00:25:07.420 what the judge

00:25:08.040 is going to instruct

00:25:08.760 on causation

00:25:10.340 because both sides

00:25:11.200 seem to concede.

00:25:12.340 And if I were

00:25:14.040 the defense,

00:25:14.820 I would have moved

00:25:15.460 to a more

00:25:16.520 pro-defense

00:25:18.040 instruction

00:25:19.160 on causation,

00:25:20.700 but I think

00:25:21.220 that's already

00:25:21.800 been decided.

00:25:23.080 So I agree with you.

00:25:24.740 I think there are

00:25:25.440 going to be issues

00:25:26.280 on appeal

00:25:26.840 if there is a conviction

00:25:27.980 and I think likely

00:25:28.840 there will be one

00:25:29.780 unless his dynamic

00:25:31.660 on the stand

00:25:32.240 changes that.

00:25:33.440 They ought to be

00:25:34.120 now listing

00:25:35.500 the issues

00:25:36.140 for appeal.

00:25:37.620 The first question

00:25:38.300 is going to be

00:25:38.740 if he's convicted,

00:25:39.500 does he get bail

00:25:40.140 pending appeal?

00:25:40.880 He's on bail now.

00:25:42.140 That's been much

00:25:42.980 criticized by some people,

00:25:44.340 but there is a

00:25:44.860 presumption of innocence.

00:25:46.200 But if he were

00:25:46.720 to be convicted,

00:25:47.680 that would end

00:25:48.300 the presumption

00:25:48.780 of innocence

00:25:49.200 and then the question

00:25:50.040 of bail pending

00:25:50.620 appeal would come up

00:25:51.420 and whether you get

00:25:52.800 an expedited appeal

00:25:53.880 and that's obviously

00:25:54.880 where my specialty

00:25:55.640 comes in.

00:25:56.660 And I think there are

00:25:57.360 good appellate issues

00:25:58.260 in this case.

00:25:59.320 But remember,

00:25:59.900 appellate courts

00:26:00.520 watch the news

00:26:05.520 and they live

00:26:06.060 in Minneapolis

00:26:06.680 and other parts

00:26:07.560 of Minnesota

00:26:07.980 and judges

00:26:09.380 are not eunuchs.

00:26:10.980 They are not

00:26:11.760 above the law

00:26:13.140 beyond feelings

00:26:14.120 and passions.

00:26:15.120 They reflect

00:26:16.940 the concerns

00:26:18.340 of the community

00:26:19.000 and I think

00:26:20.020 probably some

00:26:20.620 of the appellate

00:26:21.140 judges are watching

00:26:21.860 this case.

00:26:22.620 So you can't

00:26:23.720 count on an

00:26:24.380 appellate reversal.

00:26:25.280 I told O.J. Simpson

00:26:26.200 that I was his

00:26:27.440 appellate lawyer,

00:26:28.280 I was his

00:26:28.640 God forbid lawyer, 0.54

00:26:29.580 I was his belt

00:26:30.180 in suspenders,

00:26:30.780 but I could not

00:26:31.700 tell him that I

00:26:32.340 thought I would

00:26:32.720 win the appeal

00:26:33.260 if he was convicted.

00:26:34.540 That I thought

00:26:35.000 elected judges

00:26:35.820 in California

00:26:36.540 were very unlikely

00:26:37.960 to reverse

00:26:38.500 the conviction

00:26:39.000 in his case

00:26:40.100 that he had

00:26:40.480 to win it

00:26:40.860 at trial

00:26:41.340 and from his

00:26:43.000 point of view,

00:26:43.560 fortunately,

00:26:44.060 he won it

00:26:44.460 at trial.

00:26:44.900 I don't think

00:26:45.240 he would have

00:26:45.560 won the appeal.

00:26:46.840 All right,

00:26:47.040 so now let's

00:26:47.640 get to the

00:26:48.040 intentionality

00:26:48.680 because this

00:26:49.060 is where we

00:26:49.520 get into

00:26:49.800 the legal elements

00:26:50.560 that they're

00:26:50.940 just stuck with.

00:26:51.700 The law

00:26:52.740 is the law

00:26:53.320 and the reason

00:26:54.360 we're talking

00:26:54.860 about intentionality

00:26:56.700 is murder

00:26:57.800 in the second

00:26:58.420 degree is what

00:26:59.360 you're referring

00:26:59.940 to as felony

00:27:01.300 murder,

00:27:01.800 where if you're

00:27:02.560 in the course

00:27:02.880 of committing

00:27:03.340 a felony

00:27:03.800 and somebody

00:27:04.540 dies,

00:27:05.400 you're robbing

00:27:06.400 a 7-Eleven

00:27:07.560 and you get

00:27:09.080 startled and your

00:27:09.780 gun goes off

00:27:10.360 and you shoot

00:27:11.140 and kill somebody, 0.87

00:27:12.320 that's felony

00:27:12.860 murder,

00:27:13.320 even if you

00:27:13.740 didn't intend

00:27:14.180 to kill somebody

00:27:14.740 because you're

00:27:15.100 in the middle

00:27:15.420 of committing

00:27:15.820 a felony.

00:27:16.500 And that's

00:27:16.960 what they're

00:27:17.680 trying to get

00:27:18.100 at with

00:27:18.500 second degree

00:27:19.120 murder and

00:27:19.720 they're saying

00:27:20.220 that the felony,

00:27:21.380 as you pointed

00:27:21.740 out,

00:27:22.100 is assault.

00:27:23.540 Now the assault

00:27:24.940 is always more

00:27:26.000 complicated when

00:27:26.740 it's a police

00:27:27.300 officer exerting

00:27:28.300 force,

00:27:28.940 right?

00:27:29.140 Like that's

00:27:29.500 just its own

00:27:30.660 special tricky

00:27:32.880 wicket.

00:27:33.800 But the

00:27:35.020 definition of

00:27:36.060 assault under

00:27:36.720 Minnesota law,

00:27:37.700 I have it here

00:27:38.160 in front of me,

00:27:38.640 is an act

00:27:39.340 done with

00:27:40.580 intent to

00:27:42.040 cause fear

00:27:43.000 in another of

00:27:43.680 immediate bodily

00:27:44.280 harm or death

00:27:44.940 or the

00:27:46.440 intentional

00:27:47.040 infliction of

00:27:48.240 or attempt

00:27:49.500 to inflict

00:27:50.520 bodily harm

00:27:51.800 upon another.

00:27:53.460 So they're

00:27:53.820 basically going

00:27:54.360 to have to

00:27:54.700 argue that

00:27:55.160 Chauvin intended

00:27:56.260 to hurt

00:27:57.580 Floyd.

00:27:59.340 They're going

00:27:59.620 to have to

00:27:59.880 do more than

00:28:00.240 that because

00:28:00.860 those statutes

00:28:01.760 do not apply

00:28:02.760 to policemen.

00:28:03.800 Policemen

00:28:04.400 are entitled

00:28:05.440 to use

00:28:06.280 force.

00:28:07.160 They're entitled

00:28:07.920 to inflict

00:28:08.520 harm if

00:28:09.660 it's necessary

00:28:10.520 to effectuate

00:28:11.440 an arrest.

00:28:12.220 So the

00:28:12.900 assault statute

00:28:13.580 you've read,

00:28:14.180 which is common

00:28:14.800 all over the

00:28:15.340 country,

00:28:15.860 doesn't include

00:28:17.560 police officers.

00:28:19.060 Police officers

00:28:19.660 have different

00:28:20.480 rules applicable

00:28:21.640 to them.

00:28:22.720 And so the

00:28:23.140 question that's

00:28:23.840 going to be

00:28:24.160 asked,

00:28:24.700 and the judge

00:28:25.260 is going to

00:28:25.580 have to

00:28:25.840 answer this,

00:28:26.340 is when

00:28:27.420 did his

00:28:28.280 conduct become

00:28:29.680 criminal?

00:28:31.120 And there

00:28:31.700 seems to be

00:28:32.220 a concession

00:28:32.840 on the part

00:28:33.480 of the

00:28:34.380 prosecution's

00:28:35.140 experts that

00:28:36.080 it was not

00:28:36.880 criminal at

00:28:37.580 the very

00:28:38.020 beginning.

00:28:39.180 That he was

00:28:39.860 struggling and

00:28:40.880 the knee on

00:28:41.480 the neck or

00:28:41.940 the shoulder

00:28:42.380 was not

00:28:43.200 criminal.

00:28:43.820 It became

00:28:44.800 criminal

00:28:45.300 gradually over

00:28:46.400 time.

00:28:47.140 And you're

00:28:47.620 going to get

00:28:47.980 differences among

00:28:48.880 the experts.

00:28:49.660 Some will say

00:28:50.220 it began to

00:28:51.480 become criminal

00:28:52.120 when he

00:28:52.820 stopped resisting.

00:28:54.460 Others will

00:28:54.820 say, no,

00:28:55.360 he could have

00:28:55.720 started resisting

00:28:56.480 again.

00:28:57.120 It only became

00:28:58.000 criminal when he

00:28:58.620 was unconscious.

00:28:59.380 And yet others

00:29:00.660 have said

00:29:01.180 already, you

00:29:01.760 can pop out

00:29:02.400 of unconsciousness

00:29:03.260 and start

00:29:04.200 attacking the

00:29:05.200 police officer.

00:29:06.180 So you cannot

00:29:07.060 have a felony

00:29:07.920 murder conviction

00:29:08.760 when you have

00:29:09.960 a matter of

00:29:10.780 degree, an

00:29:11.880 assault that we

00:29:12.600 don't know when

00:29:13.180 it began, and

00:29:14.100 also assault is

00:29:15.000 too closely

00:29:15.600 connected to

00:29:16.860 the underlying

00:29:17.700 death to

00:29:18.640 warrant the

00:29:19.280 justification for

00:29:20.120 the felony

00:29:20.480 murder.

00:29:20.980 That's a

00:29:21.460 combined question

00:29:22.320 of law and

00:29:22.800 fact.

00:29:23.720 And almost

00:29:24.940 every jurisdiction

00:29:25.800 today requires

00:29:27.360 that the felony

00:29:28.200 be an

00:29:28.800 independent

00:29:29.760 felony, because

00:29:30.420 otherwise, if

00:29:31.680 that weren't

00:29:32.240 the case, every

00:29:32.960 second-degree

00:29:33.640 murder automatically

00:29:34.920 becomes first-degree

00:29:35.980 murder, because

00:29:37.000 every murder

00:29:39.000 involves an

00:29:39.900 assault.

00:29:40.780 Every killing

00:29:41.400 involves an

00:29:42.040 assault.

00:29:42.540 You point the

00:29:43.380 gun at somebody,

00:29:44.000 it's an assault.

00:29:44.720 You pull the

00:29:45.360 trigger, it's an

00:29:45.880 assault, then you

00:29:46.480 kill them. 0.54

00:29:47.080 So if you make

00:29:47.780 assault the

00:29:48.500 underlying felony,

00:29:49.740 you abolish the

00:29:50.860 distinction between

00:29:51.820 degrees of murder,

00:29:52.780 and the legislature

00:29:53.460 didn't intend

00:29:54.260 that.

00:29:54.640 So that's why you

00:29:55.220 need an independent

00:29:56.140 felony.

00:29:56.540 They don't have

00:29:57.520 it in this

00:29:57.860 case.

00:29:58.800 So it

00:29:59.360 actually could

00:30:00.440 be reasonably

00:30:01.240 dismissed by

00:30:02.060 the judge on

00:30:03.320 the defense's

00:30:04.100 motion at the

00:30:04.620 close of the

00:30:05.000 trial, or the

00:30:06.120 close of the

00:30:06.460 prosecution's case.

00:30:07.780 Yeah, it

00:30:08.540 should be, yeah.

00:30:09.400 But I don't

00:30:09.940 know whether it

00:30:10.400 will be.

00:30:11.180 Judges always

00:30:11.980 or often take

00:30:13.060 the easy way

00:30:13.620 out.

00:30:13.840 Let's leave it

00:30:14.280 to the jury,

00:30:14.880 let's see what

00:30:15.320 the jury does at

00:30:16.540 the close of the

00:30:17.080 government's case,

00:30:17.760 after there's been

00:30:18.420 a conviction, come

00:30:19.320 back, make the

00:30:20.240 argument, and then

00:30:21.300 we'll see.

00:30:21.860 But they don't

00:30:22.380 usually take issues

00:30:23.320 away from the jury.

00:30:24.100 They should in

00:30:24.580 this case.

00:30:25.580 Second-degree

00:30:26.160 murder should be 0.59

00:30:26.720 eliminated from the

00:30:28.380 jury deliberations.

00:30:30.100 So how do you

00:30:30.540 think it plays

00:30:31.320 that the fact

00:30:32.540 that Chauvin is,

00:30:34.080 well, he's now

00:30:34.500 fired, but he is a 0.74

00:30:36.160 police officer, and

00:30:37.280 juries in general, I

00:30:38.700 mean, it's been such a

00:30:39.680 crazy year when it

00:30:40.300 comes to the police,

00:30:41.000 who knows now, but

00:30:41.860 in general, I think

00:30:42.920 juries tend to feel

00:30:44.960 somewhat deferential

00:30:45.860 toward the police.

00:30:46.840 A couple of the

00:30:48.180 jurors in their

00:30:49.060 juror questionnaire

00:30:49.600 said they absolutely

00:30:51.400 don't want the

00:30:52.120 police defunded, and

00:30:53.200 they'd be terrified

00:30:54.200 if the police were

00:30:54.960 defunded, something

00:30:56.060 that actually did

00:30:56.660 happen in Minneapolis,

00:30:58.220 and then they had to

00:30:58.800 reverse it because it

00:30:59.620 was such a ridiculous

00:31:00.540 situation.

00:31:01.160 By the way, George

00:31:01.900 Floyd Square, which

00:31:02.680 is what they're now

00:31:03.180 calling the area

00:31:03.780 around the store

00:31:05.120 where he passed off

00:31:06.720 the $20 counterfeit

00:31:07.700 bill, and the crime

00:31:09.460 right there, because the

00:31:09.980 cops are not touching 0.69

00:31:10.640 it, has skyrocketed.

00:31:12.680 It's like five times

00:31:13.560 what it used to be.

00:31:14.240 Nobody wants to go

00:31:14.940 there, right?

00:31:15.560 It's like, this is

00:31:16.040 what happens when

00:31:16.440 you pull the police.

00:31:17.180 Anyway, it's a

00:31:17.720 dynamic that the

00:31:18.360 jurors may be aware

00:31:20.360 of, but how does it

00:31:22.180 affect them in this

00:31:22.840 case that it's a

00:31:24.080 police officer on

00:31:25.080 trial?

00:31:26.060 Very much so.

00:31:26.880 Very much so.

00:31:27.820 And it will depend

00:31:28.660 on how he does on

00:31:30.360 the witness stand.

00:31:31.360 Right now, he's

00:31:32.020 sitting there taking

00:31:32.700 notes.

00:31:33.200 He looks like

00:31:33.880 anybody's, you

00:31:35.340 know, brother,

00:31:36.080 cousin, uncle.

00:31:37.140 He doesn't seem like

00:31:38.360 a monster or villain.

00:31:39.700 Even in the videos,

00:31:41.260 you don't really see

00:31:42.780 him.

00:31:43.040 It's not like there's

00:31:43.780 another case.

00:31:44.400 You know, there's

00:31:44.820 another case much

00:31:45.960 like this that took

00:31:46.820 place a few years

00:31:47.460 ago where the cops

00:31:48.100 are laughing and

00:31:49.020 joking and all of

00:31:50.460 that.

00:31:51.140 He hasn't come

00:31:52.040 across, except

00:31:53.080 through the expert

00:31:53.840 testimony, in the

00:31:55.360 most negative

00:31:55.960 possible way.

00:31:57.000 And he can, even

00:31:58.000 if he has been, he

00:31:59.080 can offset that by

00:32:00.000 his testimony.

00:32:00.920 And he can show

00:32:01.940 regret.

00:32:02.560 He can show

00:32:03.380 remorse.

00:32:04.660 And he can say,

00:32:05.780 look, I may have

00:32:06.780 made a mistake in

00:32:08.140 retrospect.

00:32:08.860 I should have

00:32:09.220 taken the knee,

00:32:09.700 but I was scared.

00:32:10.960 The crowd was

00:32:11.820 frightening and

00:32:12.820 threatening.

00:32:13.200 It took my

00:32:14.020 attention away

00:32:14.760 from him.

00:32:15.640 He can make a

00:32:16.580 good presentation

00:32:17.400 on direct.

00:32:18.340 And the question

00:32:18.920 is, how will

00:32:19.780 he do on

00:32:20.200 cross-examination?

00:32:21.300 I don't know

00:32:22.080 how good the

00:32:23.280 prosecuting

00:32:23.760 attorneys are on

00:32:24.500 cross-examination.

00:32:25.800 Most prosecutors

00:32:26.540 don't have a lot of

00:32:27.320 experience with

00:32:27.940 cross-examination

00:32:28.680 because most

00:32:29.460 defendants don't

00:32:30.840 put on affirmative

00:32:31.600 cases.

00:32:32.780 And therefore,

00:32:33.580 prosecutors

00:32:34.200 generally aren't

00:32:35.540 as good at

00:32:36.000 cross-examination

00:32:36.740 as defense

00:32:37.280 attorneys are.

00:32:38.180 But we'll wait

00:32:38.720 and see how

00:32:39.300 good these

00:32:40.040 prosecutors are.

00:32:42.000 So one of the

00:32:42.980 things that

00:32:43.660 they've been

00:32:44.380 trying, I think

00:32:45.140 the prosecution

00:32:46.700 put on the

00:32:47.220 crowd, tug at

00:32:49.020 the heartstrings,

00:32:49.840 it was so

00:32:50.220 emotional, it

00:32:50.840 was awful to

00:32:51.380 watch, it was

00:32:52.320 clear to us

00:32:52.820 that he was

00:32:53.100 dying.

00:32:54.000 And bit by

00:32:54.520 bit, the

00:32:54.840 defense attorney

00:32:55.380 has been

00:32:55.940 etching away

00:32:57.100 the prosecution's

00:32:58.240 case there.

00:32:58.760 Like, for

00:32:58.980 example, the

00:33:00.040 witnesses were

00:33:00.500 like, he had

00:33:00.820 foam coming out

00:33:01.500 of his mouth,

00:33:02.300 and they're

00:33:02.640 going to be

00:33:02.840 able to get

00:33:03.160 in the fact

00:33:03.560 that he had

00:33:04.140 foam coming out

00:33:04.880 of his mouth.

00:33:05.260 Actually, they

00:33:05.620 did get in the

00:33:06.160 fact from his

00:33:06.900 girlfriend, that 0.97

00:33:07.840 when he went

00:33:08.160 to the hospital

00:33:08.660 a couple

00:33:08.920 months earlier

00:33:09.420 in March, he

00:33:10.580 had foam coming

00:33:11.180 out of his

00:33:11.520 mouth then.

00:33:12.200 Like, the guy

00:33:12.880 is a drug

00:33:13.640 addict, and

00:33:14.960 while that's

00:33:15.900 unfortunate, and

00:33:16.920 you're right, a

00:33:17.700 lot of people

00:33:18.020 suffer from this,

00:33:19.000 it's relevant

00:33:19.620 that he's taken

00:33:20.760 so many drugs

00:33:21.620 so many times

00:33:22.480 that he's been

00:33:23.040 hospitalized, he

00:33:24.020 had foam coming

00:33:24.600 out of his

00:33:24.940 mouth, so just 0.57

00:33:26.400 bit by bit he's

00:33:27.200 undermining their

00:33:27.900 testimony, and

00:33:28.800 the one who had

00:33:30.060 Twitter ablaze

00:33:31.160 over the past

00:33:32.100 week was the

00:33:32.720 firefighter, the

00:33:33.460 woman on the

00:33:34.500 stand, she's got 0.99

00:33:35.480 her firefighter

00:33:36.240 outfit on, her

00:33:36.860 little tie, her

00:33:37.780 hair is nicely

00:33:38.920 done, but on

00:33:41.460 the scene, she

00:33:45.080 behaved very

00:33:46.500 differently, and

00:33:47.480 she was swearing

00:33:48.720 at the cops, like

00:33:49.400 now she's like, I

00:33:50.420 don't understand, I

00:33:51.200 identified myself as

00:33:52.320 an EMS, and they

00:33:54.180 wouldn't let me come

00:33:55.240 up to them, it's

00:33:55.820 like, okay, the

00:33:56.320 cops have a

00:33:56.780 volatile situation,

00:33:58.100 there is a mob

00:33:58.780 starting to surround

00:33:59.500 them, screaming at

00:34:00.400 them, videotaping

00:34:01.420 them, Derek

00:34:02.240 Shoman doesn't 1.00

00:34:02.720 necessarily know what

00:34:03.400 he's dealing with,

00:34:04.020 and this woman's 0.73

00:34:04.580 kind of like, I'm a

00:34:05.360 firefighter, and

00:34:06.320 then she's like,

00:34:06.940 you bitch, I'm 1.00

00:34:07.920 like, pardon me, but

00:34:10.880 I'm thinking the

00:34:11.400 cops are not

00:34:12.000 necessarily going to

00:34:12.560 be like, come on

00:34:13.500 over, so she, the

00:34:15.960 defense attorney sort

00:34:16.720 of asked her, like,

00:34:17.660 you were angry, and

00:34:18.960 you were frustrated,

00:34:19.940 she's like, no, I

00:34:20.720 wouldn't sign on to

00:34:21.860 that, and he's like,

00:34:23.160 you called him a

00:34:24.620 bitch, and she 1.00

00:34:25.460 goes, I don't know

00:34:26.680 if you've seen

00:34:27.120 anybody be killed, but

00:34:28.140 it's upsetting, now

00:34:29.320 again, objection,

00:34:32.040 whether he was being

00:34:33.600 killed is a matter

00:34:35.140 for the jury, I just

00:34:35.900 feel like so much of

00:34:36.920 that stuff has been

00:34:37.520 let in that that

00:34:39.160 shouldn't have been.

00:34:40.820 I agree with you, but

00:34:42.000 remember the

00:34:42.520 prosecution is doing

00:34:43.320 one thing right, they

00:34:44.740 are fronting the

00:34:45.900 defense case, they're

00:34:47.060 putting the defense

00:34:47.900 case on through their

00:34:49.180 own direct testimony,

00:34:50.600 they're making sure

00:34:51.720 that all the evidence

00:34:52.820 that's going to hurt

00:34:53.580 their case comes in

00:34:55.160 through their

00:34:55.980 testimony, and

00:34:57.180 doesn't become

00:34:57.760 surprise testimony

00:34:59.260 from the defense, that

00:35:01.120 there are no

00:35:01.680 blockbusters, there are

00:35:02.960 no bombshells coming

00:35:04.700 in from the defense

00:35:05.880 side, because already

00:35:06.960 the prosecution has

00:35:07.820 put all of that on,

00:35:09.360 put on his drug

00:35:10.200 addiction, put on his

00:35:11.260 foaming mouth, put on

00:35:12.860 the crowds, so

00:35:13.940 everything the defense

00:35:15.140 is going to put on,

00:35:16.480 the prosecution has

00:35:17.460 already pretty much

00:35:18.580 put on, so it will

00:35:19.940 blunt the effect when

00:35:21.840 the defense puts it

00:35:22.700 on, oh yeah, we're

00:35:23.700 going to hear that

00:35:24.140 again, we've heard

00:35:24.900 that, we've heard

00:35:24.920 that before, that

00:35:26.060 was very, very good

00:35:27.540 lawyering on the part

00:35:28.500 of the prosecution.

00:35:30.560 Interesting.

00:35:31.960 Well, so if you had

00:35:33.020 to handicap it now,

00:35:34.820 you know, not, we're

00:35:36.200 not even through the

00:35:37.320 prosecution's case, but

00:35:38.340 what would you

00:35:39.380 predict?

00:35:39.800 If this were, if the

00:35:41.200 guy's name was John

00:35:42.000 Smith and the person

00:35:43.640 who's killed name was

00:35:44.440 John Jones and there

00:35:45.520 was no racial element

00:35:46.580 and there weren't

00:35:47.460 protests, I would say

00:35:49.360 a manslaughter

00:35:50.120 conviction at most.

00:35:52.600 This is not that, this

00:35:53.980 is one of the most

00:35:54.660 famous, notorious

00:35:56.340 cases of the 21st

00:35:57.660 century.

00:35:58.420 So I think if you

00:35:59.640 were betting widows

00:36:00.760 and orphans money,

00:36:01.660 money you couldn't

00:36:02.260 afford to lose, you'd

00:36:03.820 have to bet on a

00:36:04.460 conviction and you'd

00:36:05.760 handicap it by saying

00:36:07.400 probably, almost

00:36:09.760 certainly manslaughter

00:36:10.840 and very likely third

00:36:12.920 degree murder, but not

00:36:13.960 second degree murder.

00:36:15.040 So if I had to make a

00:36:16.300 bet now, that would be

00:36:17.240 my bet.

00:36:17.760 I will revise my bet

00:36:19.440 once the decision is

00:36:21.320 made, whether to put

00:36:22.340 Chauvin on the stand

00:36:23.280 and once he takes

00:36:24.020 the stand.

00:36:24.920 And we'll have you

00:36:25.400 back after the close

00:36:26.140 of the prosecution's

00:36:26.920 case at a minimum.

00:36:28.160 Alan, such a great

00:36:29.040 time talking to you.

00:36:29.840 Thank you.

00:36:30.580 Oh, I always enjoy

00:36:31.540 talking to you.

00:36:32.060 It's like being back

00:36:32.700 in law school, except

00:36:33.540 now you're the teacher

00:36:34.420 and I'm the student.

00:36:36.100 Stop it.

00:36:37.160 Never, never.

00:36:38.440 I love hearing you.

00:36:39.480 I love learning from

00:36:40.200 you.

00:36:40.420 More to come.

00:36:41.620 Thank you.

00:36:42.920 Our thanks to Alan

00:36:43.580 Dershowitz, professor

00:36:45.380 emeritus at Harvard

00:36:46.660 Law School.

00:36:47.500 And, you know, he's

00:36:48.220 he's tried every case

00:36:49.940 and he's been in

00:36:50.640 front of the court

00:36:51.060 of appeals of every

00:36:51.920 you know, the Supreme

00:36:52.560 Court, every you name

00:36:53.380 it.

00:36:53.500 He's done it.

00:36:54.620 He's brilliant, as you

00:36:55.600 know.

00:36:55.840 And now two other

00:36:56.740 brilliant guys who are

00:36:58.200 street fighters.

00:36:59.200 These are the guys who

00:36:59.800 have been in there

00:37:00.240 actually prosecuting

00:37:01.060 cases and being

00:37:02.300 defense attorneys on

00:37:03.160 cases.

00:37:04.160 And they've been

00:37:05.140 involved in some of

00:37:05.700 the most high profile

00:37:06.300 cases in the last 10

00:37:07.320 years.

00:37:07.580 So you're going to

00:37:08.520 hear from Arthur

00:37:09.560 Idala and Mark

00:37:10.920 Iglarsch, my dream

00:37:12.120 team panel from

00:37:13.420 well, from the Kelly

00:37:15.360 file and from all the

00:37:16.300 shows I did prior to

00:37:17.060 that.

00:37:17.260 We've all been together

00:37:18.420 and doing these shows

00:37:19.120 for a long time.

00:37:20.160 We'll get to them in

00:37:20.620 one second.

00:37:21.140 First this.

00:37:28.000 Hey guys, how's it

00:37:29.380 going?

00:37:30.020 Oh, everything's up to

00:37:31.000 date in River City.

00:37:32.600 So glad to hear it.

00:37:33.920 All right, let's get

00:37:34.400 into it then because I

00:37:36.120 want to go through some

00:37:36.960 of the sound that we've

00:37:37.660 heard this week at the

00:37:39.340 Chauvin trial and get

00:37:41.060 your reaction.

00:37:41.740 For the most part, we've

00:37:42.640 managed to pick both

00:37:43.520 prosecution questions and

00:37:44.760 defense cross

00:37:45.500 examinations so people

00:37:46.940 can get a feel of how

00:37:47.860 it's going.

00:37:48.220 And I want to start so

00:37:50.040 when when this all went

00:37:51.360 down, George Floyd had

00:37:52.940 gone into the store.

00:37:54.600 He had passed off a

00:37:55.780 twenty dollar counterfeit

00:37:56.780 bill.

00:37:57.780 There was testimony this

00:37:58.800 week that they didn't

00:38:00.480 those with him didn't

00:38:01.580 believe or the store

00:38:02.660 clerk didn't believe

00:38:03.360 George knew it was a

00:38:04.480 twenty dollar bill.

00:38:05.060 We don't know a

00:38:05.680 counterfeit.

00:38:06.260 We don't know that.

00:38:07.000 Anyway, it was

00:38:07.620 counterfeit apparently.

00:38:09.100 And he was there with

00:38:10.200 his girlfriend and with

00:38:11.400 another guy.

00:38:12.160 And this other guy has

00:38:14.320 refused to testify in

00:38:15.900 this Chauvin trial

00:38:16.840 pleading the Fifth

00:38:18.260 Amendment.

00:38:19.280 And it certainly appears

00:38:20.720 that this guy had some

00:38:22.700 sort of drug sales

00:38:24.580 relationship with George

00:38:26.360 Floyd and his girlfriend,

00:38:27.500 Courtney Ross, because she 0.96

00:38:28.620 testified.

00:38:29.780 Yeah, he's he's been

00:38:30.680 selling his drugs and he

00:38:31.860 was there with him.

00:38:32.520 And Floyd was on a lot of

00:38:33.600 drugs that day.

00:38:34.460 And now the guy won't

00:38:35.500 testify at all because he

00:38:36.940 says it would it would

00:38:38.300 incriminate him.

00:38:39.100 And his lawyer is like,

00:38:40.040 yeah, it would.

00:38:40.800 Trust me.

00:38:41.320 So that's the setup.

00:38:43.120 But the girlfriend,

00:38:44.100 Courtney Ross, does

00:38:45.740 testify and she's a 0.93

00:38:47.340 prosecution witness.

00:38:48.160 And it seems to me that

00:38:49.660 the prosecution's goal

00:38:50.860 was to soften Floyd.

00:38:53.180 You know, she talked

00:38:53.720 about how she met him.

00:38:56.140 He came up to her during

00:38:57.140 a rough time in her life

00:38:58.160 and said something like,

00:38:59.600 can we pray together?

00:39:01.360 And then you had the

00:39:02.560 store clerk say he was

00:39:03.880 sort of walking around

00:39:04.540 the store happy.

00:39:05.980 He did seem high to me,

00:39:07.160 but they're sort of

00:39:07.920 painting him as like this

00:39:08.660 happy-go-lucky,

00:39:10.140 God-fearing,

00:39:11.340 loving guy who just

00:39:12.940 fell victim to the

00:39:14.100 opiate crisis that so

00:39:15.100 many millions of

00:39:15.680 Americans have.

00:39:16.600 And here was the

00:39:17.480 prosecution's question

00:39:18.620 to Courtney Ross on the

00:39:20.240 drugs or her answer. 1.00

00:39:21.160 Listen.

00:39:21.700 Our story, it's

00:39:23.860 it's a classic story

00:39:26.760 of how many people get

00:39:29.640 addicted to opioids.

00:39:31.260 We both suffered from

00:39:33.400 chronic pain.

00:39:35.340 Mine was in my neck

00:39:36.900 and his was in his

00:39:37.880 back.

00:39:38.660 We both had prescriptions.

00:39:45.020 But after prescriptions

00:39:51.280 that were filled and

00:39:54.280 we got addicted and

00:40:02.200 tried really hard to

00:40:05.180 break that addiction.

00:40:07.440 Okay, so that's the

00:40:09.160 setup.

00:40:09.640 That's where the

00:40:10.040 prosecution went with

00:40:10.720 her.

00:40:10.840 And here are, we can

00:40:12.640 just play them back to

00:40:13.700 back, you guys, but

00:40:14.460 there's a soundbite of

00:40:15.900 her talking about a 0.85

00:40:17.620 one week before the

00:40:19.340 George Floyd, Derek

00:40:20.140 Chauvin incident.

00:40:21.600 She and George had had a

00:40:23.140 new set of pills that

00:40:24.600 were having a very

00:40:25.380 different effect on them

00:40:26.280 than the old set of

00:40:27.080 pills.

00:40:27.380 And she talks about how

00:40:28.900 she had to take Floyd to

00:40:30.600 the hospital and what he

00:40:31.920 looked like.

00:40:32.600 Listen.

00:40:32.860 Then in March of 2020,

00:40:36.620 you got some pills, right?

00:40:39.420 You remember describing

00:40:40.260 that?

00:40:40.620 Yes.

00:40:42.040 They look different to me

00:40:43.740 than a normal pill.

00:40:47.240 They seem like they were

00:40:49.460 thicker.

00:40:49.820 And you and Mr. Floyd both

00:40:53.760 had those pills?

00:40:54.960 Yes.

00:40:55.940 And did you consume some

00:40:57.520 of those pills?

00:40:58.300 I did.

00:40:59.720 Did they have the same

00:41:00.760 effect on you as they did

00:41:02.640 as your other types of

00:41:04.580 opioids you had taken in

00:41:05.700 the past?

00:41:06.040 No.

00:41:06.660 What was the effect this

00:41:08.200 time?

00:41:09.420 And what was different?

00:41:10.700 Usually, an opioid to me

00:41:16.160 is like a pain reliever.

00:41:18.600 It's something that is,

00:41:20.400 you know, kind of relaxing,

00:41:23.980 takes your pain away.

00:41:26.380 To pill that time, it

00:41:29.460 seemed like it was a

00:41:31.620 really strong stimulant.

00:41:32.980 I couldn't sleep all night.

00:41:36.280 I felt very jittery.

00:41:38.200 So you had a second

00:41:39.520 experience.

00:41:40.700 With those pills, right?

00:41:43.080 Or a similar feeling to

00:41:44.540 those pills?

00:41:45.300 I had a similar experience,

00:41:47.700 yes.

00:41:48.280 Right.

00:41:48.840 And that was approximately

00:41:50.420 a week before Mr. Floyd's

00:41:52.160 passing?

00:41:52.780 Yes.

00:41:55.860 And by similar experience,

00:41:59.920 you,

00:42:00.340 do you recall telling

00:42:04.620 the FBI that when you had

00:42:06.880 that, you felt like you

00:42:08.440 were going to die?

00:42:09.160 I don't remember saying

00:42:12.700 that, but I did see it in

00:42:14.420 the transcript.

00:42:15.900 There was an extended

00:42:16.860 hospital stay in March.

00:42:19.160 Can you describe for the jury

00:42:20.400 what led up to that

00:42:21.620 hospital stay?

00:42:23.000 Yes.

00:42:27.380 Floyd, I went to go pick

00:42:29.340 Floyd up from his house

00:42:30.920 that night.

00:42:33.280 I thought I was taking him

00:42:34.620 to work.

00:42:36.040 He wasn't feeling good.

00:42:37.340 His stomach really hurt.

00:42:40.160 He was doubled over in pain.

00:42:41.620 And when you took him

00:42:44.920 to the hospital,

00:42:45.720 did you notice foam

00:42:48.220 coming from his mouth?

00:42:51.500 I noticed like some kind

00:42:53.480 of like, you know,

00:42:55.420 foam building in the corners

00:42:56.540 of his mouth,

00:42:57.260 kind of dry.

00:42:58.480 A dry white substance?

00:43:00.160 Mm-hmm.

00:43:01.540 No.

00:43:02.880 Yes.

00:43:03.780 Sorry.

00:43:04.160 All right.

00:43:05.140 So Arthur Aydala,

00:43:06.360 where's the defense going

00:43:07.420 with that?

00:43:08.020 Well, I mean,

00:43:08.580 I don't even know why

00:43:09.800 the prosecution called her

00:43:11.980 except that they kind of

00:43:13.060 had to because she's 0.99

00:43:14.200 right at the scene,

00:43:15.040 right?

00:43:15.440 And they don't want

00:43:16.340 to not call her

00:43:17.180 and then have the defense

00:43:18.220 call her because I think

00:43:19.920 she's great for the defense, 1.00

00:43:21.260 quite frankly.

00:43:22.320 I mean,

00:43:22.580 that's his whole thing.

00:43:24.900 Mr. Nelson is to find

00:43:26.520 every other cause

00:43:27.500 on the planet Earth

00:43:28.480 for the cause of death

00:43:30.820 than the need of the neck.

00:43:34.080 So he's bringing out,

00:43:35.180 well, you know,

00:43:36.080 you used to take

00:43:36.600 a lot of pills

00:43:37.220 and now you're taking

00:43:37.780 these pills

00:43:38.340 and they're not even downers,

00:43:39.860 they're uppers,

00:43:40.760 which would now justify

00:43:42.340 Chauvin's arguments

00:43:43.980 that Floyd was,

00:43:45.300 you know,

00:43:45.500 this superhuman,

00:43:46.460 powerful being,

00:43:47.440 not someone who just

00:43:48.840 ate a whole bunch

00:43:49.520 of opioids

00:43:50.060 who becomes very mellow

00:43:51.240 and docile.

00:43:52.740 So I understand

00:43:53.660 that the prosecutor

00:43:54.360 probably had to call them,

00:43:56.300 but of all the witnesses,

00:43:57.640 in my opinion,

00:43:58.160 that have testified to date,

00:43:59.900 she's probably the one

00:44:00.980 that Mr. Nelson,

00:44:01.900 the defense attorney,

00:44:02.720 was the happiest about.

00:44:03.900 I disagree.

00:44:05.280 I disagree.

00:44:06.600 I disagree.

00:44:07.400 My first impression was,

00:44:08.780 oh my God,

00:44:09.320 they're humanizing him.

00:44:11.200 Like, here's,

00:44:12.380 like,

00:44:13.020 they're,

00:44:13.280 they're,

00:44:13.900 first of all,

00:44:14.200 they're focusing on how,

00:44:15.540 how this is not

00:44:16.700 such a shameful thing,

00:44:18.060 that they both had pain

00:44:19.940 and as a result,

00:44:20.920 they're prescribed opioids,

00:44:22.380 which is extremely common.

00:44:24.660 So now they're putting

00:44:25.460 a face to this crisis.

00:44:26.900 It,

00:44:28.040 it showed their relationship

00:44:29.620 and how they had a normal,

00:44:31.520 healthy,

00:44:32.520 arguably,

00:44:33.280 you know,

00:44:33.640 unhealthy,

00:44:34.220 because they were using drugs

00:44:35.280 relationship.

00:44:36.520 And I think it humanized Floyd.

00:44:39.020 Mark,

00:44:39.300 if he,

00:44:39.780 if,

00:44:40.180 Mark,

00:44:40.420 if the jury was living on Mars,

00:44:42.240 I would agree with you.

00:44:43.640 But George Floyd

00:44:44.800 has become

00:44:45.380 an international hero.

00:44:47.640 He does not need

00:44:48.420 to be humanized.

00:44:49.780 Every time those jurors

00:44:50.740 come to the courthouse,

00:44:51.780 they're going past

00:44:52.640 George Floyd circle,

00:44:54.300 George Floyd square.

00:44:55.440 They're seeing his pictures

00:44:56.880 everywhere.

00:44:58.400 Nobody who's testified so far

00:45:00.000 has painted him out.

00:45:01.420 They don't know,

00:45:02.500 at least by the evidence

00:45:03.620 of his criminal record,

00:45:04.940 of his jail record,

00:45:05.940 of putting a gun

00:45:06.740 to somebody's belly,

00:45:08.120 a pregnant woman's stomach. 0.84

00:45:09.760 He doesn't need to be humanized.

00:45:11.420 He's an international hero.

00:45:13.580 No,

00:45:14.160 you're missing it.

00:45:14.900 Most people

00:45:15.700 attach a stigma

00:45:16.920 to those

00:45:18.000 who are using drugs.

00:45:19.240 It's not,

00:45:20.160 look,

00:45:20.360 I'm very open-minded.

00:45:21.640 I understand

00:45:22.060 that it's a disease.

00:45:23.260 The American Medical Association

00:45:24.420 calls it that most jurors

00:45:26.020 look at that

00:45:26.720 as something very negative,

00:45:28.600 you know,

00:45:28.760 that that was the life

00:45:29.660 he chose.

00:45:30.780 And in the defense's

00:45:32.800 attempt to dehumanize him

00:45:34.820 to the extent

00:45:35.480 that they can

00:45:36.220 and reduce his value

00:45:37.580 to the jury,

00:45:38.340 they're going to point

00:45:39.180 to that drug use.

00:45:40.460 And I think that she helped

00:45:41.720 in that regard.

00:45:43.020 I at least found,

00:45:44.460 oh,

00:45:44.720 here's someone who loved him.

00:45:45.780 He had a normal relationship.

00:45:47.260 He chose this life

00:45:49.060 because of the pain

00:45:50.760 that he initially had

00:45:52.080 as a result of his back.

00:45:54.420 To me,

00:45:55.260 it just humanized him

00:45:56.240 a little bit more

00:45:56.760 and I do think

00:45:57.340 it's necessary.

00:45:58.200 How do you handle

00:45:58.820 the stimulant effect, Mark?

00:46:00.180 How do you handle

00:46:00.780 the fact that she's testifying

00:46:02.400 I couldn't sleep?

00:46:04.040 They were uppers.

00:46:04.900 They weren't downers

00:46:05.780 in summation

00:46:06.660 when Nelson

00:46:08.980 is going to now argue

00:46:10.160 that,

00:46:11.260 look,

00:46:11.800 Floyd,

00:46:12.260 not only is he

00:46:13.020 100 pounds heavier

00:46:14.480 than my client,

00:46:15.220 not only is he

00:46:15.760 six inches taller

00:46:16.560 than my client,

00:46:17.400 but he's just eating

00:46:18.200 a whole bunch of stuff

00:46:19.660 all day.

00:46:20.620 And Megan,

00:46:20.940 you talked about him

00:46:21.640 dancing in the store.

00:46:24.000 This guy was up.

00:46:25.200 He didn't have

00:46:26.220 the normal reaction

00:46:27.460 that you have

00:46:28.380 when you take

00:46:28.860 an excessive amount

00:46:29.920 of opioids

00:46:30.520 where you're all mellow

00:46:31.740 and you're all

00:46:32.380 sleeping on a couch.

00:46:34.260 He's all fired up.

00:46:35.460 I think it played

00:46:36.020 right into the defense's

00:46:37.200 hand more than

00:46:37.680 any other witness

00:46:38.580 by far

00:46:39.180 who has testified

00:46:39.860 in this case.

00:46:40.400 The defense is going

00:46:41.400 to say this time

00:46:42.100 he took too many.

00:46:42.960 Like the incident

00:46:44.520 one year prior

00:46:45.640 where he was arrested

00:46:46.560 and started shoving 0.70

00:46:47.920 drugs into his mouth,

00:46:49.240 they say,

00:46:49.920 to get redirected

00:46:50.840 to a hospital

00:46:51.360 instead of the county jail.

00:46:53.340 That's what he did

00:46:54.020 this time,

00:46:54.480 and he misjudged

00:46:55.280 how many he could take.

00:46:56.340 And his superhero strength

00:46:58.420 soon thereafter

00:46:59.200 turned into

00:47:00.020 a deadly combination

00:47:01.640 that caused 0.77

00:47:02.760 the same foam

00:47:03.660 around his mouth

00:47:04.980 that he had suffered

00:47:06.420 two months earlier,

00:47:07.500 in March

00:47:08.740 when his girlfriend

00:47:10.720 had the same issues

00:47:12.000 and had the same

00:47:12.720 bad reaction

00:47:13.400 to these drugs,

00:47:14.300 that these two

00:47:14.700 were upping

00:47:15.140 their drug taking

00:47:15.980 and taking big risks

00:47:17.480 with what they put

00:47:18.120 in their mouths. 0.51

00:47:19.340 And it's all part

00:47:20.040 of his attempt

00:47:20.820 to say drugs,

00:47:22.340 you may have

00:47:23.760 nothing but empathy

00:47:24.620 for people who develop

00:47:25.480 an opioid addiction,

00:47:27.160 but drugs are what

00:47:28.480 killed him.

00:47:29.760 People who take

00:47:30.640 a ton of opioids

00:47:31.320 also have to acknowledge

00:47:32.280 that drugs can kill you.

00:47:34.480 And he's going to say

00:47:35.160 that's what happened here.

00:47:36.700 Right.

00:47:36.780 I agree with the argument.

00:47:38.180 There's no question.

00:47:38.980 That's what you do.

00:47:39.760 In fact, I've said

00:47:40.400 if they're going to win

00:47:41.240 this at all,

00:47:42.200 you've got to pound

00:47:42.780 the science

00:47:43.520 and pound the

00:47:45.160 initial declaration

00:47:48.300 by the medical examiner.

00:47:50.260 The other thing is

00:47:51.100 his girlfriend testified

00:47:53.660 that she didn't know

00:47:54.240 about the heroin use.

00:47:55.640 You know?

00:47:56.060 Right.

00:47:56.160 And he had started doing that

00:47:57.020 and she,

00:47:57.340 well, I didn't know about that.

00:47:58.420 He was upping the ante.

00:47:59.780 And, you know,

00:48:00.160 between these speed balls

00:48:01.540 that were found,

00:48:02.880 which is a lethal combination

00:48:04.340 of two different drugs,

00:48:05.600 fentanyl in a system,

00:48:07.200 methamphetamines in a system,

00:48:09.100 his DNA all over these drugs

00:48:10.480 found in the back

00:48:11.020 of the police car

00:48:11.720 and found in the back

00:48:12.540 of the car that he had been in.

00:48:13.680 I mean, it was just

00:48:14.200 like a drug fest.

00:48:15.560 And that's not to say

00:48:16.700 George Floyd deserved

00:48:17.680 anything that happened

00:48:18.560 to him that day,

00:48:19.240 but those people

00:48:20.620 who were yelling

00:48:21.200 at Derek Chauvin

00:48:21.920 on the sidewalk

00:48:22.560 had no idea

00:48:23.480 the condition

00:48:24.400 in which George Floyd

00:48:25.540 came to the police.

00:48:27.280 They didn't know

00:48:27.600 about the scuffle

00:48:28.140 that had happened prior,

00:48:29.300 moments prior to Chauvin's arrival.

00:48:30.600 And so there's just

00:48:31.920 a bigger picture here.

00:48:32.920 And the defense,

00:48:33.460 I think,

00:48:33.720 is doing a good job

00:48:34.560 of painting it.

00:48:35.980 But let's talk about

00:48:37.400 the medical examiner

00:48:38.840 since you bring him up, Mark.

00:48:40.320 The guy's name is Baker.

00:48:42.060 And what the experts

00:48:43.240 are saying is

00:48:43.940 it is extraordinary.

00:48:46.380 You guys have both

00:48:47.000 been prosecutors

00:48:47.660 to have the prosecution

00:48:49.420 distanced itself

00:48:51.120 from the medical examiner

00:48:52.960 on the case.

00:48:53.840 The only guy

00:48:54.300 to ever autopsy

00:48:55.120 George Floyd.

00:48:55.900 Usually that's

00:48:56.500 the prosecution's witness.

00:48:57.900 And the guy

00:48:58.980 did conclude homicide.

00:49:01.040 So that's good

00:49:01.620 for the prosecution.

00:49:02.980 But everything else

00:49:04.580 that he said

00:49:05.620 in his report

00:49:06.160 is bad.

00:49:07.180 And here's what happened.

00:49:08.060 I actually just boned up

00:49:08.860 on this.

00:49:09.700 Not only did he conclude

00:49:11.160 like in the original report,

00:49:13.320 the original autopsy report,

00:49:14.580 I'm quoting now,

00:49:15.820 cause of death

00:49:16.320 was cardiopulmonary arrest,

00:49:17.900 heart attack,

00:49:18.980 complicating,

00:49:21.020 the heart attack

00:49:21.900 complicated

00:49:22.940 law enforcement

00:49:24.800 subdual restraint

00:49:25.960 and neck compression.

00:49:26.840 So in other words,

00:49:28.400 his heart attack

00:49:29.580 complicated

00:49:31.020 what Chauvin

00:49:32.000 was doing to him.

00:49:33.000 It's just a weird way

00:49:34.100 of phrasing it

00:49:34.780 that to me

00:49:35.200 seems like he was trying

00:49:36.000 to like maybe

00:49:37.060 take some of the blame

00:49:38.240 off of Chauvin.

00:49:39.080 I don't know.

00:49:40.100 But then

00:49:40.580 there was such an outrage

00:49:42.220 about what he concluded,

00:49:43.920 right?

00:49:44.080 Cause you're,

00:49:44.460 you know,

00:49:44.720 you're not allowed

00:49:45.180 to be scientific anymore.

00:49:46.140 You just have to be

00:49:46.660 politically correct

00:49:47.340 and say what the mob

00:49:47.960 wants you to.

00:49:48.880 That people were outraged

00:49:50.440 and they had a big

00:49:52.780 like hearing

00:49:53.580 privately in Minneapolis

00:49:54.820 and were,

00:49:56.500 they demanded

00:49:56.880 more information

00:49:57.760 from this doctor,

00:49:59.380 Baker.

00:49:59.880 And he said

00:50:01.440 during this thing

00:50:02.400 that it appeared

00:50:04.500 to him

00:50:05.120 that the pressure

00:50:06.180 to the neck

00:50:06.680 was coming

00:50:07.120 from the back

00:50:08.520 or posterior

00:50:09.480 lateral portions

00:50:11.280 of the back,

00:50:11.880 not the neck.

00:50:12.440 And that none

00:50:13.500 of these strictures

00:50:14.780 would impact breathing

00:50:16.160 or cause loss

00:50:17.420 of consciousness.

00:50:18.780 He said

00:50:19.900 it's important

00:50:20.720 that Floyd

00:50:21.380 had narrowing

00:50:22.440 of the coronary

00:50:23.140 arteries 75 to 80%

00:50:25.260 narrowed.

00:50:26.140 This would put him

00:50:26.620 at risk

00:50:27.000 for a sudden

00:50:27.540 cardiac event

00:50:29.260 and went on

00:50:30.380 to say that

00:50:31.680 he believed

00:50:32.840 Floyd's heart

00:50:33.400 was starting to fail

00:50:34.060 because of the stress,

00:50:34.960 the drugs,

00:50:35.520 his enlarged heart

00:50:36.260 and heart disease.

00:50:37.420 And that once

00:50:38.280 the heart starts to fail,

00:50:39.420 one of the symptoms

00:50:40.040 is the perception

00:50:40.780 that you cannot breathe.

00:50:41.980 All of that is terrible

00:50:43.120 for the prosecution, Mark.

00:50:45.240 It is.

00:50:46.500 There's one question

00:50:47.660 we don't know, Megan.

00:50:48.780 And I agree with you.

00:50:49.880 We could take a pause

00:50:50.800 and Arthur can move on

00:50:52.340 and talk.

00:50:53.440 But there's one.

00:50:54.460 So yes,

00:50:55.020 I agree with you, period.

00:50:57.020 Now, what I will add is

00:50:58.520 there's one question

00:50:59.980 and that's what I love

00:51:00.960 about trying cases

00:51:01.840 here in Florida.

00:51:02.620 It's liberal discovery.

00:51:03.720 You get to take

00:51:04.720 the deposition of witnesses.

00:51:06.060 So it's not trial by ambush.

00:51:07.320 There's no surprise.

00:51:08.440 And the one question

00:51:09.220 I would ask him,

00:51:10.340 are you saying

00:51:11.600 that in no way

00:51:13.660 the knee to the neck

00:51:15.480 contributed

00:51:16.800 or caused

00:51:18.100 in any way

00:51:19.340 to his death?

00:51:20.660 Is that what you're saying?

00:51:22.560 If he says,

00:51:23.620 yeah, that's what I'm saying.

00:51:24.940 I go, holy crap,

00:51:26.520 if I'm the prosecutor.

00:51:28.700 Right, because he could say that.

00:51:30.700 He might say that.

00:51:32.200 The word is substantial, though.

00:51:34.300 Mark, it's got to be

00:51:35.440 a substantial cause.

00:51:37.080 It just can't be,

00:51:38.460 you know,

00:51:38.800 it's a little bit,

00:51:40.020 but that's the law.

00:51:41.380 Now, causation means

00:51:43.020 substantial causal factor

00:51:45.260 in causing his death.

00:51:46.460 So it's got to be

00:51:47.660 a little more significant.

00:51:48.860 Megan,

00:51:49.440 in terms of being

00:51:50.140 politically correct,

00:51:51.640 what really upset me,

00:51:52.740 because I know

00:51:53.680 what you boned up on

00:51:54.700 and I boned up

00:51:55.360 on the similar thing,

00:51:56.740 what really,

00:51:57.400 really upset me

00:51:58.080 as a person

00:51:59.000 who's heavily involved

00:52:00.100 in the criminal justice system

00:52:01.480 is that after this doctor,

00:52:03.580 Dr. Andrew Baker,

00:52:04.920 gave his report,

00:52:06.300 which we have no reason

00:52:07.520 to believe.

00:52:08.020 He didn't write

00:52:08.600 what he found

00:52:09.880 and what science,

00:52:11.140 the science that he knows,

00:52:13.020 believed to be true.

00:52:14.880 The protests against him,

00:52:17.880 his family,

00:52:19.080 his office,

00:52:19.940 they had to construct,

00:52:21.520 I think it's a cinder block wall

00:52:23.420 with like barbed wire fence

00:52:24.960 around his office.

00:52:26.860 Horrible.

00:52:27.140 The guy who's doing his job

00:52:28.900 came with a conclusion

00:52:30.380 that he believes

00:52:31.260 meets scientific certainty

00:52:33.420 and because people

00:52:34.900 don't like his scientific results,

00:52:38.060 they're threatening his life.

00:52:39.740 That's just,

00:52:40.360 that's horrible.

00:52:41.220 It's not an American way 1.00

00:52:42.920 of doing things.

00:52:44.200 It's insane.

00:52:45.320 But have you ever seen this before

00:52:47.480 where the,

00:52:48.180 where the prosecution

00:52:49.280 is stiff arming

00:52:51.080 the medical examiner

00:52:52.220 and basically just trying

00:52:53.120 to bypass him

00:52:53.900 with a bunch of others?

00:52:54.980 No,

00:52:55.520 I have never seen it before.

00:52:56.740 I have no problem.

00:52:57.600 I've never seen it either.

00:53:01.120 But here's my question.

00:53:02.540 I don't know anything

00:53:03.140 about the guy

00:53:03.820 and it does seem unusual

00:53:05.500 based upon that video.

00:53:07.280 Um,

00:53:07.680 it's causing me to question

00:53:08.800 what I,

00:53:09.240 what I believed

00:53:10.280 based upon the video.

00:53:11.180 The question I have is,

00:53:12.980 is he legit?

00:53:14.600 Did he have an agenda?

00:53:16.060 Was he,

00:53:16.620 as you said,

00:53:17.300 Megan,

00:53:17.680 hold on,

00:53:18.140 Megan even suggested it.

00:53:19.520 Maybe he was trying

00:53:20.460 to benefit Chauvin.

00:53:23.000 Megan threw that out there. 1.00

00:53:24.020 He might have been.

00:53:24.740 Right.

00:53:25.140 He might have been.

00:53:26.500 The defense has 15,

00:53:28.160 the defense has 15 more doctors,

00:53:30.620 Mark,

00:53:31.200 15 doctors on their witness list

00:53:33.040 that they're going to call

00:53:34.040 in their case in chief,

00:53:35.060 the defense.

00:53:35.880 So there's at least 15 people.

00:53:38.240 Now they might not call them all,

00:53:39.760 but there's at least 15

00:53:40.860 other medical professionals

00:53:42.140 who are going to take the stand

00:53:43.600 and agree with the medical examiner

00:53:46.100 saying that.

00:53:47.500 And I think they're really

00:53:48.560 going to focus.

00:53:49.220 And Mark,

00:53:49.540 you just said this five minutes ago.

00:53:51.200 If you're the defense attorney,

00:53:52.520 you're going to hammer

00:53:53.180 on the medicine.

00:53:54.540 There's going to be 15 doctors

00:53:55.920 who are going to say,

00:53:56.820 well,

00:53:57.240 he was about to have

00:53:58.100 a heart attack.

00:53:58.800 He had 80 degree closure

00:54:00.180 of his arteries,

00:54:01.540 you know,

00:54:02.040 and then the prosecutor

00:54:02.900 is going to say,

00:54:03.680 but the knee to the back

00:54:05.720 and that whole situation

00:54:07.160 was a substantial cause

00:54:09.060 that caused the heart attack

00:54:10.420 that caused his death.

00:54:11.420 Let me ask you this

00:54:12.040 because I don't like

00:54:13.760 the way he worded it.

00:54:15.220 The reason I said

00:54:15.840 maybe he was trying

00:54:16.460 to do Chauvin a solid

00:54:17.580 was because he says

00:54:18.600 cardiopulmonary arrest,

00:54:19.760 heart attack,

00:54:20.700 complicating law enforcement,

00:54:22.620 subdual restraint

00:54:23.340 and neck compression.

00:54:24.440 I mean,

00:54:24.620 what the hell does that mean?

00:54:25.520 It's like his heart attack

00:54:27.740 screwed up the arrest.

00:54:29.300 I mean,

00:54:29.420 I think what he,

00:54:31.080 if you were honest,

00:54:31.700 he would have written

00:54:32.280 cardiopulmonary arrest,

00:54:33.680 that it was caught

00:54:35.260 in part caused by,

00:54:36.700 right?

00:54:36.880 I think what he's trying

00:54:37.600 to say is law enforcement

00:54:38.440 subdual restraint

00:54:39.220 and neck compression

00:54:39.880 helped cause

00:54:41.480 the cardiopulmonary arrest

00:54:43.320 because that let's face it,

00:54:44.900 Baker does wind up

00:54:46.120 concluding in the same

00:54:46.980 concluding the same report.

00:54:48.280 This was a homicide,

00:54:49.320 which means a death

00:54:50.440 that occurred

00:54:50.820 at the hands

00:54:51.220 of another person.

00:54:51.960 So he's kind of

00:54:52.820 all over the board.

00:54:54.520 Well,

00:54:55.220 okay.

00:54:55.900 So he's look,

00:54:57.120 any reasonable person

00:54:58.540 would say

00:54:59.200 that the arrest

00:55:01.400 occurring in the manner

00:55:02.600 in which it did

00:55:03.480 would create great stress

00:55:05.320 and,

00:55:06.260 and,

00:55:06.920 and,

00:55:07.740 and I guess

00:55:08.820 stress to his heart.

00:55:10.080 There's no way

00:55:10.760 that was a,

00:55:11.380 that's right.

00:55:12.660 So if he died of a heart

00:55:13.740 and if that action

00:55:15.000 was not lawful,

00:55:16.120 which most,

00:55:17.820 including the chief

00:55:18.660 is saying,

00:55:19.460 because it was

00:55:19.940 excessive force,

00:55:21.160 then that is

00:55:22.500 a substantial cause

00:55:23.680 that that physical action

00:55:25.560 placed great strain

00:55:27.460 upon,

00:55:28.480 yes,

00:55:28.700 an already damaged heart

00:55:30.740 from years of X,

00:55:32.300 Y,

00:55:32.500 and Z,

00:55:33.400 but that that action

00:55:34.700 right there

00:55:35.440 sped up the process,

00:55:37.000 did something

00:55:38.200 that caused 0.77

00:55:38.920 the heart to go.

00:55:40.960 I,

00:55:41.220 he has to say that

00:55:42.100 because what they're going

00:55:42.980 to say,

00:55:43.180 I just had Dershowitz on

00:55:44.280 and,

00:55:44.840 and we were talking

00:55:45.460 about how the jury

00:55:46.340 instructions and even

00:55:47.340 the defense,

00:55:48.680 the,

00:55:48.920 even the defense

00:55:49.680 has admitted

00:55:50.620 in its proposed

00:55:51.900 jury instructions

00:55:52.840 that,

00:55:53.900 um,

00:55:54.480 to cause somebody's

00:55:55.260 death,

00:55:55.440 is to be,

00:55:56.360 is you have to be

00:55:57.280 a substantial causal

00:55:58.640 factor,

00:55:59.120 your behavior,

00:55:59.580 and the fact

00:56:00.400 that other causes

00:56:01.620 also contributed

00:56:03.260 to the death

00:56:03.940 does not relieve

00:56:05.260 the defendant

00:56:06.000 of criminal liability,

00:56:08.140 right?

00:56:08.300 If you caused it

00:56:09.180 and somebody else

00:56:09.740 helped cause it,

00:56:10.860 you're not off the hook,

00:56:12.100 but I,

00:56:12.440 but apparently the defense

00:56:13.580 went on to propose

00:56:15.200 and its proposed

00:56:15.860 jury instructions,

00:56:17.180 um,

00:56:17.820 like a limiting

00:56:18.680 instruction after that

00:56:19.660 saying,

00:56:20.480 however,

00:56:21.260 Chauvin would not

00:56:22.040 be criminally liable

00:56:23.100 if a superseding

00:56:24.860 cause caused

00:56:26.220 the death.

00:56:27.060 And you guys

00:56:27.420 remember this

00:56:28.040 in law school,

00:56:29.460 right?

00:56:29.660 It's like,

00:56:30.200 I shoved somebody

00:56:32.020 out the window

00:56:33.280 and if he was

00:56:34.600 only going to fall

00:56:35.320 two floors

00:56:36.240 and probably

00:56:36.900 wouldn't have died,

00:56:37.580 but on the way

00:56:38.500 down,

00:56:38.840 somebody shoots

00:56:39.460 him as he's

00:56:39.920 falling,

00:56:40.700 I'm going to say

00:56:41.860 a superseding

00:56:42.960 cause caused

00:56:43.980 the death.

00:56:44.460 It wasn't me

00:56:45.060 shoving him 0.97

00:56:45.400 out the window.

00:56:45.960 So that's

00:56:47.280 what the defense

00:56:47.840 is going to

00:56:48.240 say,

00:56:48.580 like somehow

00:56:49.220 the drugs

00:56:50.280 he's going

00:56:52.080 to say

00:56:52.280 but the

00:56:54.060 prosecution

00:56:54.520 has responded

00:56:55.580 and it's

00:56:55.960 proposed

00:56:56.280 jury instruction

00:56:56.820 saying an

00:56:57.840 action that

00:56:58.500 occurs prior

00:56:59.680 to Derek

00:57:00.320 Chauvin's

00:57:00.840 conduct

00:57:01.360 cannot be

00:57:02.240 a superseding

00:57:03.740 event.

00:57:05.060 It's kind

00:57:05.660 of interesting.

00:57:06.740 It doesn't

00:57:07.140 make total

00:57:08.040 amount of

00:57:09.160 sense to me.

00:57:09.700 I mean,

00:57:09.900 from a

00:57:10.420 commonsensical

00:57:11.100 point of

00:57:11.540 view,

00:57:12.020 hypothetically,

00:57:12.600 if the

00:57:13.220 medical

00:57:13.900 examiner

00:57:14.440 said all

00:57:15.440 the drugs

00:57:15.960 are what

00:57:16.220 killed him,

00:57:17.040 well,

00:57:17.200 that's a

00:57:17.520 superseding

00:57:18.060 event or

00:57:19.020 preceding

00:57:19.640 event that

00:57:20.760 was the

00:57:21.620 cause of

00:57:21.980 his death.

00:57:23.140 So I,

00:57:23.660 but with

00:57:24.000 those,

00:57:24.460 I know

00:57:24.800 those were

00:57:25.120 the proposed

00:57:25.800 instructions,

00:57:26.660 Megan,

00:57:26.860 but is that

00:57:27.340 what the

00:57:27.640 jury is going

00:57:28.260 to hear,

00:57:28.720 number one?

00:57:29.340 And I can

00:57:29.960 see the

00:57:30.320 jury coming

00:57:30.900 back and

00:57:31.680 asking during

00:57:32.400 deliberations,

00:57:33.140 asking the

00:57:33.660 judge,

00:57:34.360 please define

00:57:35.300 what substantial

00:57:36.720 causal factor

00:57:38.360 is.

00:57:39.180 Yeah.

00:57:39.620 Well,

00:57:39.840 and the other

00:57:40.200 thing,

00:57:40.460 Arthur,

00:57:40.680 is if you're

00:57:41.280 the defense

00:57:41.700 lawyer,

00:57:41.980 you'll say,

00:57:43.000 right,

00:57:43.620 the taking

00:57:44.320 of the

00:57:44.560 drugs preceded

00:57:45.660 Chauvin's

00:57:46.040 arrival on

00:57:46.500 scene,

00:57:46.780 no doubt.

00:57:47.700 The effect

00:57:48.900 of the

00:57:49.600 drugs taking

00:57:50.400 hold on

00:57:51.520 George Floyd

00:57:52.100 was a

00:57:53.100 superseding

00:57:53.600 event.

00:57:54.220 So they're

00:57:54.660 going to go

00:57:54.900 to town

00:57:55.280 over that.

00:57:55.940 Like,

00:57:56.160 as you

00:57:56.660 point out,

00:57:57.100 what's

00:57:57.360 substantial,

00:57:58.400 what's

00:57:58.680 superseding,

00:57:59.900 and the

00:58:00.140 causation,

00:58:00.920 I mean,

00:58:01.200 the defense

00:58:01.720 is not in

00:58:02.620 any way

00:58:03.160 conceding

00:58:03.740 that Derek

00:58:04.720 Chauvin had

00:58:05.260 any role

00:58:05.980 in causing

00:58:06.820 George Floyd's

00:58:07.420 death.

00:58:08.200 Okay,

00:58:08.620 so here I

00:58:09.700 am listening

00:58:10.460 and hearing

00:58:10.980 everything you

00:58:11.800 guys are

00:58:12.140 saying,

00:58:12.460 and this

00:58:12.640 is wonderful,

00:58:13.280 I haven't

00:58:13.480 had these

00:58:13.780 types of

00:58:14.100 discussions

00:58:14.460 since law

00:58:15.020 school.

00:58:15.600 I mean,

00:58:15.820 really smart

00:58:17.100 people talk

00:58:18.140 about the

00:58:19.380 nuances,

00:58:20.180 correct.

00:58:20.760 Thank you.

00:58:21.140 But now let's

00:58:22.400 focus on what's

00:58:23.220 in that jury

00:58:23.740 box.

00:58:24.480 Are you

00:58:24.940 kidding me?

00:58:25.940 So who

00:58:26.320 does all

00:58:26.620 this benefit,

00:58:27.820 right?

00:58:28.040 what the

00:58:29.560 subtleties in

00:58:31.040 the law,

00:58:32.020 they don't,

00:58:32.520 this is

00:58:32.840 mumbo-jumbo

00:58:33.580 to them,

00:58:34.020 and all

00:58:34.680 the defense

00:58:35.460 lawyer has

00:58:35.900 to do is

00:58:36.300 say,

00:58:36.860 folks,

00:58:37.280 it's not

00:58:37.900 our burden.

00:58:39.060 If there's

00:58:39.520 a reason

00:58:40.280 to doubt

00:58:41.300 whether this

00:58:42.080 was a

00:58:42.400 substantial

00:58:42.860 cause or

00:58:43.440 not,

00:58:44.100 that's it.

00:58:44.820 coming up,

00:58:46.420 we're going

00:58:46.620 to get into

00:58:47.080 what the

00:58:47.540 police chief

00:58:48.340 said,

00:58:49.100 testifying

00:58:49.780 against

00:58:50.480 his own

00:58:51.600 cop,

00:58:52.260 Derek Chauvin,

00:58:52.900 who he

00:58:53.240 fired the

00:58:53.680 day after

00:58:53.980 this incident

00:58:54.500 along with

00:58:54.980 the other

00:58:55.260 three cops,

00:58:56.100 two of whom

00:58:56.920 had only

00:58:57.200 been on the

00:58:57.560 job for

00:58:58.000 a week.

00:58:58.800 They all

00:58:59.240 got fired

00:58:59.700 by this

00:59:00.400 police chief

00:59:00.920 and he's

00:59:01.480 doing something

00:59:01.920 we never

00:59:02.220 see.

00:59:02.520 He's breaking

00:59:02.900 the blue

00:59:03.240 wall,

00:59:03.620 a lot of

00:59:04.020 firsts in

00:59:04.380 this case,

00:59:05.400 and we'll

00:59:05.760 play you

00:59:06.180 the points

00:59:07.000 that the

00:59:07.400 prosecution

00:59:07.700 made with

00:59:08.100 him and

00:59:08.580 then the

00:59:09.060 points the

00:59:09.480 defense made

00:59:10.760 with him

00:59:11.220 and ask

00:59:11.820 Mark and

00:59:12.580 Arthur

00:59:12.940 to react.

00:59:14.820 Before we

00:59:14.980 get to

00:59:15.420 all of

00:59:15.840 that,

00:59:16.200 I want

00:59:16.320 to bring

00:59:16.500 you a 0.57

00:59:16.680 feature we

00:59:17.100 have here

00:59:17.440 on the

00:59:17.600 Megyn Kelly

00:59:18.000 show called

00:59:19.100 From the

00:59:19.860 Archives.

00:59:20.760 This is where

00:59:21.100 we direct

00:59:21.540 you to an

00:59:21.940 episode from

00:59:22.440 our library

00:59:22.980 that you

00:59:23.400 may have

00:59:23.740 missed but

00:59:24.080 we think

00:59:24.460 you'll

00:59:24.700 love.

00:59:25.440 For this

00:59:26.180 one today,

00:59:26.640 we're going

00:59:26.980 way back

00:59:27.600 to our

00:59:28.460 premiere

00:59:29.060 episode.

00:59:30.180 Have you

00:59:30.340 heard episode

00:59:30.820 number one?

00:59:31.720 It's actually

00:59:32.440 our top

00:59:33.200 rated

00:59:33.920 archived

00:59:35.180 episode.

00:59:35.680 In other

00:59:35.900 words,

00:59:36.080 that's the

00:59:36.360 one people

00:59:36.700 go back

00:59:37.020 to and

00:59:37.240 listen the

00:59:37.860 most.

00:59:38.600 And it

00:59:38.780 is a

00:59:39.000 great one.

00:59:39.460 It came

00:59:39.760 out a

00:59:40.140 little over

00:59:40.440 six months

00:59:40.800 ago now and

00:59:41.800 it was with

00:59:42.180 Glenn Greenwald.

00:59:43.720 Now this is

00:59:44.080 before Glenn

00:59:45.380 left the

00:59:45.840 Intercept and

00:59:46.520 went off on

00:59:46.920 his own

00:59:47.340 independent

00:59:47.780 path and

00:59:48.340 started his

00:59:48.900 Substack.

00:59:49.880 Here's a

00:59:50.200 clip.

00:59:50.540 I think

00:59:50.840 one of the

00:59:51.300 things that

00:59:51.660 a lot of

00:59:51.980 people on

00:59:52.260 the right

00:59:52.520 don't fully

00:59:53.000 understand is

00:59:54.300 that

00:59:54.600 establishment

00:59:55.380 liberals,

00:59:57.280 you know,

00:59:57.500 like kind of

00:59:57.840 the dominoing

00:59:58.740 of the

00:59:58.900 Democratic

00:59:59.160 Party,

00:59:59.580 they don't

01:00:00.100 actually care

01:00:00.820 about politics.

01:00:01.680 They're not

01:00:02.020 socialists.

01:00:03.140 They serve

01:00:03.660 the interests

01:00:04.120 of Silicon

01:00:04.600 Valley and

01:00:05.220 Wall Street

01:00:05.700 and K

01:00:06.500 Street and

01:00:08.120 they're rich

01:00:08.500 donors.

01:00:08.900 They're not

01:00:10.180 at all

01:00:10.640 socialists.

01:00:11.180 Most of

01:00:11.400 them themselves

01:00:11.940 are extremely

01:00:12.560 rich and

01:00:13.020 wealthy

01:00:13.240 families.

01:00:14.940 They use

01:00:16.060 some rhetoric

01:00:16.600 that's populist

01:00:17.380 in nature,

01:00:17.880 but populism

01:00:18.800 exists far

01:00:19.400 more on

01:00:19.680 the right

01:00:19.960 than it

01:00:20.200 does on

01:00:20.780 the

01:00:21.140 establishment

01:00:21.500 of the

01:00:21.800 Democratic

01:00:22.000 Party.

01:00:22.620 They don't

01:00:23.220 really care

01:00:23.580 about politics.

01:00:24.800 They're also

01:00:25.120 not against

01:00:25.920 war or

01:00:26.500 imperialism.

01:00:27.740 Obama

01:00:28.020 started lots

01:00:28.640 of different

01:00:28.980 wars.

01:00:29.700 Trump

01:00:29.920 hasn't.

01:00:31.280 What they

01:00:31.860 care about

01:00:32.280 is culture,

01:00:33.080 dominating

01:00:33.440 the culture.

01:00:34.740 And the

01:00:34.980 reason they

01:00:35.340 look at Joe

01:00:35.820 Rogan and

01:00:36.440 see an enemy,

01:00:37.580 even though

01:00:38.320 if you go

01:00:39.340 down the

01:00:39.660 list, he's

01:00:40.180 pro-choice,

01:00:40.780 he's pro-gay 1.00

01:00:41.260 rights, he

01:00:42.280 believes in

01:00:42.740 social spending,

01:00:43.980 he's anti-war,

01:00:45.200 he believes in

01:00:45.920 the legalization

01:00:46.480 of drugs,

01:00:47.080 he endorsed

01:00:47.520 Bernie Sanders,

01:00:48.480 he knows

01:00:49.080 exactly.

01:00:50.540 So why did

01:00:51.320 they see an

01:00:51.720 enemy?

01:00:52.480 Because they

01:00:52.920 don't care about

01:00:53.380 politics, they

01:00:53.860 care about

01:00:54.180 culture.

01:00:54.820 And Rogan

01:00:55.500 is not, he

01:00:56.540 doesn't sound

01:00:57.160 like them,

01:00:57.920 right?

01:00:58.100 He's like a

01:00:58.500 regular guy.

01:00:59.880 He talks in

01:01:01.120 regular jargon.

01:01:02.200 He likes

01:01:02.540 hunting and

01:01:03.280 MMA fighting.

01:01:04.760 He tells

01:01:05.280 some risqué

01:01:06.020 jokes.

01:01:07.420 So to

01:01:08.280 them, he's

01:01:09.000 like an

01:01:09.320 interloper

01:01:09.920 culturally, and

01:01:10.940 that's what

01:01:11.300 they care about

01:01:11.920 more than

01:01:12.280 politics.

01:01:12.920 And that's

01:01:13.140 why I

01:01:13.360 think the

01:01:13.900 contempt for

01:01:15.860 Rogan among

01:01:17.220 liberals and

01:01:17.720 the media, which

01:01:18.140 is sort of the

01:01:18.460 same thing at

01:01:18.860 this point, is

01:01:20.080 so revealing

01:01:20.640 about what

01:01:21.000 they prioritize.

01:01:22.240 So what I

01:01:22.960 did think it

01:01:23.340 was interesting,

01:01:23.840 just one more

01:01:24.360 minute on him,

01:01:25.220 that he signed

01:01:25.860 his deal with

01:01:26.280 Spotify and

01:01:27.120 made a bunch

01:01:28.520 of money off

01:01:29.040 of it, but

01:01:29.540 already there's

01:01:30.660 trouble, right?

01:01:31.440 Like he had on

01:01:32.400 Abigail Schreier,

01:01:33.200 who wrote

01:01:35.600 Irreversible

01:01:36.260 Damage, which

01:01:37.780 takes a hard

01:01:38.280 look at

01:01:38.740 transgender

01:01:40.100 teens and

01:01:41.660 why it seems

01:01:42.820 to be increasing

01:01:43.560 in frequency.

01:01:44.880 And they had a

01:01:45.300 very thoughtful

01:01:45.820 discussion.

01:01:46.420 I thought it was

01:01:46.760 fascinating, and

01:01:47.620 I read the

01:01:48.540 book.

01:01:49.180 And now there's

01:01:50.140 a protest over

01:01:50.820 there.

01:01:51.280 They want the

01:01:51.800 episode pulled.

01:01:52.580 They want him

01:01:53.320 pulled.

01:01:53.860 They want him

01:01:54.200 punished.

01:01:54.660 And Spotify

01:01:55.140 has reportedly

01:01:55.900 had 10

01:01:56.420 meetings, not

01:01:57.100 reportedly, the

01:01:57.780 CEO confessed.

01:01:59.160 They had 10

01:02:00.040 meetings about

01:02:00.600 this, and it

01:02:01.260 made me wonder,

01:02:01.960 can Joe Rogan

01:02:03.480 last at

01:02:04.560 Spotify?

01:02:05.160 Can this

01:02:05.420 relationship

01:02:05.900 last?

01:02:07.620 Yeah, it's

01:02:08.100 so fascinating.

01:02:10.180 You know, first

01:02:10.960 of all, I look

01:02:11.820 at it kind of

01:02:12.420 through the

01:02:12.680 prism a lot

01:02:13.360 of the

01:02:14.380 primary

01:02:15.340 success of

01:02:17.560 a social

01:02:18.020 movement in

01:02:18.500 my lifetime

01:02:18.960 that affected

01:02:19.400 my life most,

01:02:20.040 which is the

01:02:20.380 gay rights

01:02:20.740 movement, you

01:02:21.300 know, like

01:02:21.560 of age as a

01:02:23.420 gay teenager 0.93

01:02:23.900 in the 80s

01:02:24.660 with the moral

01:02:25.420 majority in

01:02:26.140 the Reagan

01:02:26.720 era.

01:02:27.600 No one

01:02:27.840 thought anything

01:02:28.280 like gay 1.00

01:02:28.820 marriage was

01:02:29.260 even remotely

01:02:29.740 possible that

01:02:30.340 have won the

01:02:30.620 full panoply

01:02:31.400 of legal

01:02:31.720 rights, and

01:02:32.080 with my

01:02:32.400 lifetime, that

01:02:33.680 has happened,

01:02:34.220 and one of

01:02:34.520 the reasons

01:02:34.780 it's happened

01:02:35.360 is because so

01:02:36.480 many people

01:02:36.960 who wanted

01:02:37.660 this profound

01:02:38.240 social change

01:02:39.160 engaged in

01:02:40.340 the debate,

01:02:40.960 right, like

01:02:41.360 said, hey,

01:02:42.440 like you have

01:02:42.840 these ideas

01:02:43.400 about who I

01:02:44.040 am, what

01:02:44.480 my life is

01:02:45.040 like, that

01:02:45.400 aren't actually

01:02:45.860 true, so get

01:02:47.060 to know me,

01:02:47.620 talk to me, I

01:02:48.260 understand that

01:02:48.800 you were raised

01:02:49.360 to think

01:02:49.700 differently, you

01:02:50.420 have religious

01:02:50.860 convictions that

01:02:51.540 lead you to a

01:02:52.020 different place,

01:02:53.300 let's have a

01:02:53.840 dialogue so that

01:02:54.540 you can actually

01:02:55.000 see the reality

01:02:56.100 of our humanity.

01:02:57.700 It wasn't this

01:02:58.620 coercive demand

01:03:00.100 that everybody

01:03:00.620 swallowed this

01:03:01.580 truth, I'm not

01:03:02.040 saying there

01:03:02.300 were no

01:03:02.560 elements of the

01:03:03.020 gay rights

01:03:03.320 movement that

01:03:03.700 did that, but

01:03:04.220 by and large,

01:03:05.460 it was successful

01:03:06.920 because it was

01:03:07.500 persuasive, and

01:03:09.220 now around this

01:03:10.420 trans issue,

01:03:11.860 there's almost

01:03:12.600 this kind of

01:03:13.320 demand that

01:03:14.120 nobody asks

01:03:15.080 any questions

01:03:15.700 about these

01:03:17.160 really profound

01:03:18.280 changes that are

01:03:19.100 being demanded

01:03:19.660 about how we

01:03:20.220 think about

01:03:20.640 gender, how we

01:03:21.380 think about

01:03:21.780 sex, how we

01:03:22.880 think about the

01:03:24.120 choices of

01:03:24.680 children to make

01:03:25.540 permanent, and

01:03:26.640 this is what I

01:03:27.160 find so interesting,

01:03:27.720 you know, I

01:03:28.320 have this media

01:03:29.400 outlet that's

01:03:30.180 based in New

01:03:30.620 York, so I

01:03:31.740 go a lot to

01:03:32.340 New York, and

01:03:32.780 a lot of my

01:03:33.360 colleagues are

01:03:34.300 journalists who

01:03:35.460 send their kids

01:03:36.020 to very liberal

01:03:37.240 private schools

01:03:38.120 in Brooklyn and

01:03:38.700 Manhattan, and

01:03:39.860 a lot of their

01:03:40.480 teenage children

01:03:42.460 have friends who

01:03:45.240 are trans, so 1.00

01:03:46.040 like 15-year-old

01:03:47.360 trans boys who

01:03:48.840 have already had

01:03:49.960 their breasts

01:03:50.540 removed at the

01:03:52.080 age of 15, or

01:03:53.780 you know, the

01:03:54.720 other way of

01:03:55.560 trans women who

01:03:56.560 have had genital

01:03:57.460 reassignment

01:03:58.320 surgery involved

01:03:59.900 in their genitals 0.99

01:04:00.440 that are permanent

01:04:01.100 changes that they're

01:04:01.840 making at the age

01:04:02.460 of 15 to 16, and

01:04:03.880 if you talk to

01:04:04.360 these journalists

01:04:04.880 they'll tell you at

01:04:05.620 dinner over a

01:04:06.500 glass of wine that

01:04:07.940 they're very disturbed

01:04:09.760 by the question that

01:04:11.320 we don't really have a

01:04:12.040 lot of science about

01:04:13.080 about whether kids

01:04:14.680 are too young to be

01:04:15.740 making these

01:04:16.200 decisions about

01:04:16.840 whether people are

01:04:18.060 being misdiagnosed

01:04:18.880 with gender

01:04:19.320 dysphoria who

01:04:19.980 actually have other

01:04:20.600 problems in the

01:04:21.140 culture that's

01:04:21.680 encouraging them to

01:04:22.440 think that they're

01:04:23.320 trans when they're 1.00

01:04:23.940 like, people have

01:04:24.960 those questions, people

01:04:25.940 in the privacy of

01:04:26.620 their own, ask the

01:04:27.680 questions that Joe

01:04:28.360 Rogan asked, but

01:04:29.400 those journalists

01:04:30.000 would never, ever

01:04:31.520 write about it or

01:04:33.200 publicly say it

01:04:34.280 because they're too

01:04:35.220 scared to, they're

01:04:36.080 too beholden to

01:04:37.280 liberal orthodoxy, and

01:04:39.100 Joe Rogan's not, and

01:04:40.520 that's why they hate

01:04:42.240 him because they can't

01:04:43.040 control him.

01:04:43.980 So go check out the

01:04:44.540 full interview if you

01:04:45.280 haven't yet heard

01:04:46.260 this, but this short

01:04:47.680 clip really signaled the

01:04:49.360 cultural fight to come

01:04:50.600 over the past few

01:04:51.540 months, particularly

01:04:52.520 after the election.

01:04:53.360 The left, the right,

01:04:54.860 the division we see

01:04:55.920 in media.

01:04:57.060 One of the great

01:04:57.780 things about this

01:04:58.320 podcast, we believe

01:04:59.480 this connection with

01:05:00.420 you, has been that we

01:05:02.280 can exist outside of

01:05:03.200 this divisive, false

01:05:04.840 structure of politics

01:05:06.200 and media and really

01:05:07.060 just dishonest, right?

01:05:08.540 It's just dishonest.

01:05:09.820 All they care about is

01:05:10.520 getting ratings, so

01:05:11.640 they will mislead and

01:05:12.980 tweak you and drive you 0.77

01:05:15.000 to anger because it

01:05:16.360 helps their bottom 0.99

01:05:17.000 line.

01:05:17.200 They don't care about

01:05:17.700 you, trust me, they

01:05:18.840 care about their

01:05:19.460 bottom line, but we

01:05:20.700 do.

01:05:21.300 I don't need a huge

01:05:22.040 bottom line.

01:05:22.600 I just need to

01:05:23.280 deliver the news in a

01:05:24.160 way that's honest and

01:05:25.920 hopefully educational

01:05:27.380 and entertaining for

01:05:28.180 you guys.

01:05:29.280 And we've been doing

01:05:29.880 that, you know, and

01:05:30.600 if you do it right,

01:05:31.400 success follows.

01:05:32.880 But I almost feel like

01:05:34.020 it's not totally

01:05:34.840 irrelevant, but it's a

01:05:35.740 little bit, it's less

01:05:36.820 relevant than it would

01:05:37.620 have been had I been on

01:05:38.680 a cable news show,

01:05:39.340 that's for sure.

01:05:40.260 Glenn, by the way, had a

01:05:41.740 harrowing story come out

01:05:42.640 this month about being

01:05:43.840 robbed down in Brazil

01:05:45.340 and being held at

01:05:46.520 gunpoint.

01:05:47.580 You should Google it and

01:05:48.320 check it out because

01:05:48.920 this guy's been through a

01:05:50.100 lot.

01:05:50.760 He's one of the good

01:05:51.340 ones.

01:05:52.040 And he's in the same

01:05:52.760 fight we're fighting,

01:05:53.600 fighting for the right of

01:05:54.280 all Americans to think

01:05:55.580 for themselves and to be

01:05:57.040 able to discuss

01:05:57.800 controversial issues

01:05:59.260 openly and freely.

01:06:01.880 This has been From the

01:06:03.380 Archives.

01:06:04.260 Back to the show right

01:06:05.280 after this.

01:06:11.440 Now the video's in

01:06:12.540 question.

01:06:13.160 Are we seeing what we

01:06:14.040 think we're seeing?

01:06:14.800 I thought I was seeing

01:06:15.600 Derek Chauvin looking

01:06:16.440 really relaxed and sort of

01:06:17.660 like he was enjoying it

01:06:18.620 with his hand in his

01:06:19.320 pocket.

01:06:19.840 Turns out he didn't have

01:06:20.540 his hand in his pocket

01:06:21.220 and that was misleading.

01:06:22.040 I thought I was seeing

01:06:22.900 a knee on the neck.

01:06:23.940 The defense is now

01:06:24.680 making the case that the

01:06:25.540 knee was between the 0.92

01:06:26.200 shoulder blades and

01:06:27.200 putting on another camera

01:06:28.660 angle from an officer's

01:06:30.380 body cam showing that.

01:06:31.600 And this this was actually

01:06:32.800 a big moment this week

01:06:33.540 where they had the chief

01:06:34.200 of police.

01:06:34.600 This is bad, bad, bad for

01:06:35.760 Derek Chauvin.

01:06:36.480 Chief of police takes the

01:06:38.020 stand and testify, breaks

01:06:39.320 the blue wall and

01:06:40.560 testifies against Derek

01:06:41.480 Chauvin that this is he was

01:06:42.800 out of line.

01:06:43.720 This is not consistent with

01:06:44.620 policy.

01:06:45.100 And I and I don't support

01:06:47.340 what he did.

01:06:47.900 But then the cross was

01:06:49.420 interesting, too.

01:06:49.940 So we have both the

01:06:51.100 prosecution soundbite and a

01:06:52.300 good defense soundbite.

01:06:53.660 Take a listen to both.

01:06:54.300 As you reflect on exhibit

01:06:56.120 17, I must ask you, is

01:06:58.680 this a trained Minneapolis

01:07:00.280 Police Department

01:07:01.440 defensive tactics technique?

01:07:03.940 It is not.

01:07:06.160 Well, we read the

01:07:07.460 departmental policy on neck

01:07:10.080 restraints.

01:07:10.900 Is this a neck restraint?

01:07:13.900 The conscious neck

01:07:15.140 restraint by policy mentions

01:07:17.580 light to moderate pressure.

01:07:18.980 When I look at exhibit 17, and

01:07:23.920 when I look at the facial

01:07:28.140 expression of Mr. Floyd, that

01:07:31.800 does not appear in any way,

01:07:33.780 shape, or form that that is

01:07:34.920 light to moderate pressure.

01:07:37.480 So is it your belief, then,

01:07:39.360 that this particular form of

01:07:42.640 restraint, if that's what you

01:07:44.300 if that's what we'll call it,

01:07:46.420 in fact, violates

01:07:48.060 departmental policy?

01:07:49.080 I absolutely agree that

01:07:50.360 violates our policy.

01:07:52.700 You would agree, Chief, that

01:07:54.840 from the perspective of Miss

01:07:57.160 Frazier's camera, it appears

01:08:00.880 that Officer Chauvin's knee is on

01:08:03.120 the neck of Mr. Floyd?

01:08:06.740 Yes, sir.

01:08:09.360 Would you agree that from the

01:08:11.220 perspective of Officer King's

01:08:13.700 body camera, it appears that

01:08:15.760 Officer Chauvin's knee was more on

01:08:17.560 Mr. Floyd's shoulder blade?

01:08:21.800 Um, yes.

01:08:24.600 First of all, can I ask you, he

01:08:26.460 says, I don't think it was light

01:08:28.100 to moderate pressure because of

01:08:29.240 the facial expression of George

01:08:30.720 Floyd.

01:08:31.200 Like, how are we treating the

01:08:33.340 police chief as an expert on

01:08:34.700 that?

01:08:35.020 Like, I just to me, I was

01:08:36.580 thrown by it because it's like,

01:08:37.700 well, the facial expression of

01:08:39.380 like you're not here as some

01:08:40.620 facial analysis expert.

01:08:42.620 And number two, um, George Floyd,

01:08:46.200 I mean, the defense is easily

01:08:47.380 going to be able to argue George

01:08:48.840 Floyd's face looked like that

01:08:49.920 because he was high as a kite and

01:08:51.800 he was dying.

01:08:52.780 He was dying of a drug overdose.

01:08:54.760 Well, I mean, there's, there's an

01:08:56.160 element of common sense that comes

01:08:57.720 into this and the police chief is

01:08:59.520 allowed to testify that, you know,

01:09:01.540 someone's face, what did it appear to

01:09:02.780 be to you, appeared to be somebody

01:09:03.980 in pain, but you know, you, you

01:09:06.100 talked about the blue wall, you

01:09:08.000 know, coming down.

01:09:08.980 I mean, you asked earlier about

01:09:11.860 watching prosecutors and their

01:09:14.060 medical examiners go against each

01:09:15.880 other.

01:09:16.460 I mean, I've never been involved in

01:09:17.920 any kind of a case where, uh, you

01:09:20.920 know, a police lieutenant or higher

01:09:23.780 here, it's the chief, uh, you know,

01:09:26.260 is coming down after his own guy.

01:09:27.840 I know there is a CYA factor here.

01:09:29.880 Right.

01:09:30.160 So, I mean, he can't come out.

01:09:31.800 So chief of police can't go and say,

01:09:34.040 oh yeah, he did exactly what we

01:09:35.260 taught him to do.

01:09:35.880 And it happened to kill somebody.

01:09:37.280 So what, I mean, but he fires the

01:09:40.100 guy the next day and it's not just

01:09:42.000 the chief of police, Megan, it's,

01:09:43.520 you know, the, the person who's in

01:09:45.180 charge of training.

01:09:46.460 Um, and then there was someone who's

01:09:47.720 in charge of, of rendering,

01:09:49.060 teaching the officers how to render

01:09:51.360 aid.

01:09:51.720 And she testified, they go above and

01:09:53.440 beyond and teach them more than they

01:09:54.780 need to.

01:09:55.240 And they testified.

01:09:56.380 He did two things wrong.

01:09:57.640 He used excessive force first

01:09:59.960 violation of the police, but then

01:10:01.760 he didn't render aid that, which is

01:10:03.840 they, what they are taught to do.

01:10:05.540 So even though he's not charged with

01:10:07.400 not rendering aid, you know, there's

01:10:09.400 no way to spin this, that this was a

01:10:11.200 good day or good days for the

01:10:13.500 defendant.

01:10:14.580 Well, but not, but, but Mark, not,

01:10:16.200 not rendering aid.

01:10:17.560 He is charged with that in a way, because

01:10:19.460 if he's not rendering aid, doesn't it, I

01:10:22.560 mean, it could potentially convert those

01:10:24.220 last four minutes of what might've been

01:10:26.640 appropriate force into excessive force.

01:10:29.400 When the guy is now limp, he appears to

01:10:31.600 be dying.

01:10:32.380 And that's where the crowds shouts are

01:10:34.860 relevant, right?

01:10:35.640 You have all these witnesses.

01:10:36.680 I realized, you know, a police officer has

01:10:38.520 to discount what's being shouted at him by

01:10:40.200 the crowd, but they're all, they're

01:10:42.160 yelling.

01:10:42.660 He's dying.

01:10:43.460 He's dying.

01:10:44.120 Take his pulse, take his pulse. 0.64

01:10:45.080 And he doesn't.

01:10:45.740 And he won't like that.

01:10:47.960 That that's where you get, you do get

01:10:49.420 into a very strong manslaughter case.

01:10:52.000 Correct.

01:10:52.240 And it goes to his state of mind.

01:10:54.480 Listen, I think Arthur said it best last

01:10:57.660 time when, and I agreed with him, stay the

01:11:01.240 hell away from the officer's actions, which

01:11:04.240 I don't think any reasonable expert would

01:11:07.200 say would be consistent with policy.

01:11:09.680 I mean, you can use some force initially

01:11:12.180 when he's kicking, but then the

01:11:14.000 police force has to be adjusted to fit what

01:11:17.560 the suspect is doing.

01:11:19.160 And he went overboard, hammer the science,

01:11:22.600 stay away from the officer's actions and

01:11:24.760 just go with what was the cause?

01:11:27.340 What was the substantial cause?

01:11:29.120 But I don't think there's going to be

01:11:30.420 dispute amongst reasonable, uh, former

01:11:33.380 law enforcement or current law enforcement.

01:11:35.600 His conduct just went overboard.

01:11:37.220 And they use the word, Arthur, let me

01:11:40.240 ask you this, Arthur, because you can

01:11:41.100 say the jury is totally free to say this

01:11:43.480 cop was out of line.

01:11:44.260 This cop violated policy.

01:11:45.380 This cop deserved to be fired, but I'm not

01:11:47.200 ready to find him guilty of a crime.

01:11:48.640 Well, they, they can do that.

01:11:51.020 I mean, that would be almost leaning towards

01:11:53.260 a jury nullification type of thing.

01:11:55.420 But I think that, you know, I know there

01:11:58.260 was a lot written about there were too

01:12:00.160 many police officers who testified.

01:12:01.820 There were too many experts.

01:12:02.920 And they said, I read somewhere, oh, jurors

01:12:05.500 were falling asleep.

01:12:06.820 Well, let me tell you something as a

01:12:07.860 prosecutor, Megan, when I was an intern,

01:12:10.440 before I was even a lawyer, I interned in

01:12:12.280 the Manhattan DA's office and a storied

01:12:14.640 prosecutor there who's still there after 50

01:12:17.320 some odd years, Warren Murray.

01:12:19.100 He taught us a sleeping juror is a convicting

01:12:22.400 juror.

01:12:23.460 And I think they just hammered home, you

01:12:25.900 know, maybe a little over the top, but it's

01:12:27.440 a big, big point for the prosecutor that his

01:12:30.280 fellow officers all agree that what he, and

01:12:33.960 the judge, I don't know how he allowed

01:12:35.840 this, but he, the police chief said, I

01:12:38.700 thought I found it was murder.

01:12:40.560 And that's why I fired him.

01:12:42.620 I would say objection, your honor.

01:12:43.700 That's up to the jury, whether it was

01:12:45.100 murder or not.

01:12:45.560 He's not allowed to give his opinion on

01:12:47.280 whether it's murder or not, but that came

01:12:48.840 out.

01:12:49.120 So you have the chief law enforcement

01:12:50.640 officer saying my guy murdered someone.

01:12:53.400 Wait, Megan, are we really going to let

01:12:54.700 Arthur go with that theory that a sleeping

01:12:57.320 juror is a convicting juror?

01:12:59.000 Sleeping juror is a tired juror.

01:13:00.280 I don't know what the hell kind of

01:13:01.920 that's ridiculous.

01:13:04.180 I don't know.

01:13:04.620 I would, I would think if I were sitting

01:13:05.840 there and I have served as a juror

01:13:07.220 before, um, uh, you have a man's life

01:13:09.900 in your hands.

01:13:10.740 You would feel the obligation to stay

01:13:12.380 awake if you were leaning toward putting

01:13:13.980 him behind bars.

01:13:15.320 Megan, you're tired.

01:13:16.600 The testimony can be very boring.

01:13:18.480 You're sitting there all day, low blood

01:13:20.880 sugar, high blood.

01:13:22.280 People fall asleep.

01:13:23.600 I do it after lunch.

01:13:24.720 My law school, I fell asleep half the

01:13:26.420 time.

01:13:26.840 It doesn't mean they're, they're, they're

01:13:28.460 leaning towards.

01:13:29.060 All I can tell you, Mark, is the

01:13:30.040 Manhattan DA's office had a 90% conviction

01:13:32.060 rate.

01:13:32.460 So he must've been onto something.

01:13:35.020 Hmm.

01:13:35.680 Well, listen, I do.

01:13:37.080 I talked about this with Dershowitz a

01:13:38.640 little bit, but I'm, I'm interested in

01:13:39.740 your take because they've let in so much

01:13:41.180 emotional testimony that I don't think

01:13:42.500 belongs in a trial.

01:13:43.260 I really think like they had the one woman,

01:13:45.680 um, Daniela Frazier, who took the videotape

01:13:47.900 we've all seen, you know, talking about

01:13:49.600 how I, when I watch this, what goes on in

01:13:51.680 my mind?

01:13:52.140 Oh, how it could have been my brother

01:13:53.360 and my dad, because they're black.

01:13:55.160 What?

01:13:55.980 Like, you're so correct, Megan.

01:13:57.580 You're so my mom, you guys know my

01:13:59.960 family.

01:14:00.220 My dad's a criminal censor for everything

01:14:01.920 for 50 some odd years.

01:14:03.720 My mom said, my dad's been screaming at

01:14:06.460 the screen with all of this objection,

01:14:08.840 objection, objection.

01:14:10.640 Yes.

01:14:11.160 They're allowed to come in and it's eight

01:14:12.760 and it's for the benefit of the

01:14:14.400 prosecutor.

01:14:15.420 Well, listen to this one, Mark.

01:14:16.700 Listen to this one.

01:14:17.200 So they had the store clerk, Christopher

01:14:18.600 Martin, testify.

01:14:20.260 Um, this is the guy who took the $20

01:14:21.820 bill from Floyd.

01:14:23.200 And as we mentioned, he talked about how

01:14:25.300 he seemed happy in the, in the store

01:14:27.140 and fine, but, but high.

01:14:29.460 And the, they cue it up.

01:14:31.460 Like you were, we see you on the video

01:14:33.160 after the fact, like really pacing around

01:14:34.840 and pacing around.

01:14:35.500 And they try to have like a little

01:14:36.680 emotional therapy session.

01:14:37.900 And you tell me whether this is

01:14:38.900 appropriate.

01:14:39.460 Listen, we saw you standing there with

01:14:40.820 your hands on your head for a while.

01:14:42.160 Correct.

01:14:42.840 Correct.

01:14:43.580 What was going through your mind during

01:14:45.020 that time period?

01:14:46.060 Uh, disbelief and guilt.

01:14:49.840 Why guilt?

01:14:51.040 Um, if I would have just not taken the

01:14:54.100 bill, this could have been avoided.

01:14:56.640 All right.

01:14:57.180 If I would have not taken the bill,

01:14:58.280 this could have been avoided.

01:14:59.640 Objection.

01:15:00.120 Move to strike.

01:15:00.880 No foundation.

01:15:01.760 You don't know that.

01:15:02.480 That's up to the jury.

01:15:03.520 This could have happened immediately

01:15:04.900 because George Floyd had a lot of

01:15:06.320 drugs in him.

01:15:06.760 And by the way, what do I care?

01:15:08.900 What was going through the store

01:15:09.900 clerk's mind while he was pacing around

01:15:11.940 outside of the seat?

01:15:12.780 How is that relevant to anything?

01:15:14.800 Add that to the list of things that

01:15:16.380 happen in trial that just come out.

01:15:18.160 And then you might realize, oh, my God,

01:15:19.700 that shouldn't come out.

01:15:21.000 But it came out.

01:15:22.080 What am I going to highlight it?

01:15:23.360 You know, maybe the juror was sleeping.

01:15:24.940 I don't need to object and wake him up

01:15:26.300 and let him hear it.

01:15:27.020 So, you know, you just let those things

01:15:28.780 go.

01:15:29.160 And it has very little weight, really,

01:15:31.380 in the trial.

01:15:32.260 So you don't make a thing about it.

01:15:33.160 What did you what did you think about

01:15:34.400 all the crying jurors, not jurors,

01:15:36.620 all the crying witnesses that the crowd,

01:15:40.060 you know, they let him take a stand

01:15:40.900 one by one and talk about how

01:15:42.220 witnessing this has affected their lives.

01:15:45.100 How is that even remotely relevant?

01:15:48.660 It's just an emotional play that I think

01:15:50.700 is so obviously too prejudicial to come in.

01:15:53.480 But this judge, I think he's worried

01:15:55.700 about being reversed or pilloried by,

01:15:59.600 you know, cable news pundits.

01:16:01.240 I don't know.

01:16:01.500 He's letting in a lot.

01:16:02.780 And in his defense, the defense is not

01:16:05.180 objecting to all of it.

01:16:06.060 Some of it.

01:16:06.440 Yes, that I don't think you should let in.

01:16:09.160 But that's it.

01:16:09.700 Hold on one second.

01:16:10.440 I was about to ask you, well, wait,

01:16:12.000 did the defense object to that?

01:16:13.160 I would have.

01:16:13.760 But if the judge is letting it in,

01:16:15.980 he doesn't sue a sponte on his own,

01:16:17.680 say, wait, stop one second.

01:16:19.700 Do not.

01:16:20.640 I'll be the reason why both sides

01:16:22.160 are letting it in.

01:16:22.840 So it's not on him.

01:16:23.860 I put that on the defense attorney.

01:16:25.340 In fact, I would have moved in limonade

01:16:27.100 before the trial began.

01:16:28.920 Their personal feelings about how

01:16:30.760 this affected them belongs in some

01:16:32.620 personal injury trial, not in this trial.

01:16:35.220 And Megan, if you if you go ahead,

01:16:36.780 Arthur, Megan, you brought up the fact

01:16:38.260 that one of the witnesses said,

01:16:40.740 oh, when I was looking at George Floyd,

01:16:42.460 it could have been my what I forget,

01:16:44.440 my father, my brother, you know,

01:16:46.560 that to some degree, if you are

01:16:48.300 if you're a defense attorney

01:16:49.320 with a decent set of cojones could say,

01:16:52.720 really?

01:16:53.360 So that reminded of your father

01:16:54.880 and your and your brother.

01:16:56.320 Did your father serve 20,

01:16:57.860 20 months in jail?

01:16:59.440 Did your father ever take a gun

01:17:00.640 and put his stomach?

01:17:02.660 Listen, you have the defense attorney

01:17:05.220 under this desperate situation.

01:17:06.800 You do everything you can to make sure

01:17:10.000 you talked about in the beginning

01:17:11.100 of this podcast about humanizing him.

01:17:14.420 That's what you want to do as a prosecutor.

01:17:16.260 As a defense attorney,

01:17:17.500 you want to net the ladies and gentlemen

01:17:19.400 of Jerry, you know, who George Floyd,

01:17:21.520 his whole background, the whole story.

01:17:24.180 And sometimes you got to use

01:17:25.400 a little some some tactics.

01:17:27.180 I don't like that.

01:17:28.480 You lost me.

01:17:30.560 I don't like that one.

01:17:31.680 I disagree.

01:17:32.060 Listen, you guys practice differently

01:17:33.780 in Florida and New York.

01:17:34.880 We take the gloves off, my man.

01:17:37.540 Yeah, we're real gentle here.

01:17:39.280 We're so gentle in Miami.

01:17:40.820 We hold the witnesses faces.

01:17:42.420 Yeah.

01:17:43.280 Florida is known for its

01:17:44.240 totally normal behavior.

01:17:46.680 Megan, you're right.

01:17:47.660 None of that stuff should have come in.

01:17:49.300 And, you know, Mark,

01:17:50.280 I'm sure you have appeared

01:17:51.400 in front of judges who do

01:17:52.980 sue a sponte, just say sustained

01:17:55.500 without anyone saying an objection

01:17:57.520 when something's coming out

01:17:58.940 that is so obviously

01:18:00.080 against the rules of evidence

01:18:01.560 and one side of the other is sleeping.

01:18:03.820 I can tell you,

01:18:04.400 Judge Neil Fiertag

01:18:05.520 in Brooklyn, New York, Supreme Court

01:18:07.180 used to do it all the time.

01:18:08.600 Sustained.

01:18:09.320 I'm like, judge, no one objected.

01:18:10.460 I know, but I'm not letting

01:18:11.480 evidence that's not admissible

01:18:13.320 in my courtroom.

01:18:15.060 Yes, I'd love to hear more of that

01:18:17.140 because I realize

01:18:18.320 these are sympathetic people.

01:18:19.920 They watch something

01:18:20.580 that they didn't want to watch.

01:18:21.960 They have, you know, real guilt.

01:18:23.500 I believe that about not doing more.

01:18:25.380 But all of it is irrelevant.

01:18:27.160 They're not medical experts.

01:18:28.480 They didn't have the full picture.

01:18:30.320 They had one vantage point.

01:18:31.860 As it turns out,

01:18:32.420 there were many other vantage points

01:18:33.500 that are super relevant

01:18:34.300 and better positioned to see

01:18:35.640 and tell us what the truth was.

01:18:37.340 I think the defense

01:18:38.600 had a very good case.

01:18:39.980 None of these people

01:18:40.500 should come in.

01:18:41.380 None of them should.

01:18:42.360 I don't we don't need

01:18:43.220 to hear from anybody

01:18:44.020 except those who want

01:18:44.800 to lay the foundation

01:18:45.540 for the videotapes they took.

01:18:47.440 But I certainly don't need

01:18:48.320 to hear about how it's affected

01:18:49.240 the lives of the witnesses.

01:18:50.740 You could take anybody on TV,

01:18:52.100 anybody who's watched

01:18:52.680 the tape on TV

01:18:53.380 and have them talk about that.

01:18:54.820 It isn't relevant.

01:18:55.900 It's just prejudicial

01:18:56.820 to Derek Chauvin.

01:18:57.880 We don't disagree with you.

01:18:59.600 Their personal feelings

01:19:00.660 are irrelevant,

01:19:01.240 but they certainly have

01:19:02.100 every right to be heard.

01:19:04.900 They're not only

01:19:05.940 shooting the video,

01:19:07.740 but they're seeing it

01:19:08.400 with their own eyes

01:19:09.220 or looking around.

01:19:10.240 They're seeing other things

01:19:11.100 that are not captured

01:19:11.820 on the video.

01:19:12.860 So they have every right

01:19:13.660 to testify.

01:19:14.700 But as a defense attorney,

01:19:16.140 my job is to limit the scope

01:19:18.120 prior to them getting

01:19:19.200 on the witness stand

01:19:19.960 so I don't look like

01:19:20.840 I'm hiding anything

01:19:21.560 in front of the jury.

01:19:22.520 When in doubt,

01:19:23.300 I'd probably just let it come in

01:19:24.860 because, again,

01:19:26.480 I'm pounding the science.

01:19:28.340 And so, again,

01:19:30.140 I'm trying to keep it out.

01:19:31.620 But if I don't do it beforehand,

01:19:33.680 which I would or I try,

01:19:35.160 and it comes out,

01:19:36.520 I don't want to look like

01:19:37.400 I'm hiding anything

01:19:38.040 in front of the jury.

01:19:38.720 So I probably just let it go,

01:19:40.320 especially because

01:19:41.220 the key to this case

01:19:42.840 doesn't hinge upon

01:19:43.680 what flows from their lips.

01:19:44.760 It hinges upon the science.

01:19:46.460 And that's what I'm pounding.

01:19:47.420 But, Megan, to your point,

01:19:48.520 as soon as to your point,

01:19:49.960 I mean, Mark's correct.

01:19:50.820 A hundred percent.

01:19:51.420 They could testify.

01:19:52.240 They're eyewitnesses to the crime.

01:19:53.660 But as soon as the prosecutor says,

01:19:55.600 and how did that make you feel?

01:19:58.000 Objection, Your Honor.

01:19:59.040 Right.

01:19:59.620 This isn't an episode of Oprah.

01:20:01.460 Right.

01:20:01.820 Exactly.

01:20:03.440 Again, Mark's a hundred percent correct.

01:20:04.960 They're allowed to say,

01:20:05.720 I saw Chauvin do this.

01:20:06.900 I saw him do that.

01:20:07.640 I saw George Floyd do this.

01:20:08.980 But then you don't get into,

01:20:10.280 and how did that make you feel?

01:20:11.560 Well, hold on.

01:20:12.140 I think maybe they could

01:20:13.320 because then based upon

01:20:15.180 how they felt,

01:20:16.040 they then took,

01:20:17.220 you know,

01:20:17.880 the next action, right?

01:20:19.620 So I don't think it's as clear cut

01:20:21.260 as you guys are saying.

01:20:22.180 So how did it make you feel?

01:20:23.120 Well, I was angry.

01:20:24.280 Really?

01:20:24.440 And then what'd you do as a result?

01:20:25.680 I yelled at the officer. 0.52

01:20:27.080 Really?

01:20:27.380 So I think it might all go into that.

01:20:29.860 And so it might come into play.

01:20:32.320 Okay.

01:20:32.780 So where do you guys stand now

01:20:34.580 on whether if you were representing Derek Chauvin,

01:20:37.220 you would call him to testify?

01:20:38.900 Mark?

01:20:39.840 Not a chance in hell.

01:20:41.940 I mean,

01:20:42.140 I still don't know.

01:20:43.800 Again,

01:20:44.320 a slim chance

01:20:45.800 because,

01:20:46.840 you know,

01:20:47.100 you want to keep that open.

01:20:48.560 But he looks best

01:20:50.000 sitting there with his mouth shut

01:20:51.540 like most of the clients

01:20:52.640 that I represent,

01:20:53.480 even the ones who look great.

01:20:55.300 And,

01:20:55.680 you know,

01:20:56.120 they all look better

01:20:57.380 sitting there,

01:20:58.800 me humanizing them

01:20:59.860 by touching them

01:21:00.740 and bringing things

01:21:02.540 out throughout the trial

01:21:04.180 that bring in his personal life.

01:21:06.100 But the minute he opens his mouth,

01:21:08.760 there's way too many things

01:21:10.300 that he cannot explain

01:21:11.700 to satisfy Megan's curiosity.

01:21:14.640 It's not going to happen, Megan.

01:21:16.300 So you keep him quiet

01:21:17.560 and this is about science.

01:21:19.520 That's it.

01:21:19.900 It also, Megan,

01:21:20.880 it also has

01:21:21.860 the effect of shifting the burden.

01:21:26.140 All of a sudden now,

01:21:27.800 it goes from

01:21:28.500 the prosecutor's got to prove their case

01:21:30.020 beyond a reasonable doubt.

01:21:31.200 And even though that's the law,

01:21:33.640 once you put your guy up there,

01:21:35.160 it almost becomes a he said,

01:21:36.720 she said,

01:21:37.200 all right,

01:21:37.420 now who do I believe more?

01:21:39.100 Even though the judge

01:21:40.140 will tell them

01:21:40.640 in his final jury instructions

01:21:43.140 to them

01:21:43.520 that that's not the case,

01:21:44.580 that ultimately

01:21:45.740 winds up happening.

01:21:47.640 How flip side of the coin

01:21:49.060 is there's been cases

01:21:51.380 where I haven't put the guy on

01:21:53.000 and I didn't get the result

01:21:54.260 that I wanted.

01:21:54.900 And the jury said,

01:21:55.700 we needed to hear from your guy.

01:21:57.620 We needed to hear.

01:21:59.320 Now, what I knew

01:22:00.240 what they didn't know

01:22:00.880 is if he went up there

01:22:01.900 and said,

01:22:02.300 what do you really do?

01:22:03.740 He would definitely do 25 to life.

01:22:06.200 It would not have helped him.

01:22:08.080 Here's the question, Megan,

01:22:09.100 to help you with this decision.

01:22:11.320 If the defense theory,

01:22:12.960 which you've established,

01:22:14.260 is that the kneeling

01:22:15.720 was not the substantial cause,

01:22:17.540 so we're talking about science

01:22:18.840 and this is all about

01:22:19.560 your experts

01:22:20.400 versus their experts,

01:22:21.800 right?

01:22:22.760 What value then

01:22:25.220 on that issue

01:22:27.760 does your client

01:22:29.320 have to bring to these jurors?

01:22:31.440 I say that rhetorically.

01:22:32.700 The answer is nothing.

01:22:33.900 He doesn't know.

01:22:34.460 Well, wait,

01:22:34.740 but let me ask you,

01:22:35.920 let me ask you,

01:22:36.400 because to prove

01:22:38.420 the assault

01:22:39.240 that led to the death,

01:22:41.140 which is,

01:22:41.700 you know,

01:22:41.960 that's part of murder too,

01:22:43.740 right?

01:22:44.000 It's felony murder,

01:22:44.900 basically.

01:22:45.280 It's what he's charged with

01:22:45.900 and the felony is assault.

01:22:47.500 You've got to prove intent

01:22:48.460 that he intended to harm.

01:22:50.640 Now, again,

01:22:51.200 it's weird when you have it,

01:22:52.480 when it's a cop

01:22:53.220 effecting an arrest,

01:22:54.260 there are different considerations

01:22:56.060 and different language

01:22:57.400 will go into the jury instructions

01:22:58.580 because it's not like

01:22:59.400 he just saw George Floyd

01:23:00.800 and started hurting him.

01:23:02.280 He was there for a reason

01:23:03.180 and in effecting an arrest,

01:23:04.420 you're allowed to basically

01:23:05.540 assault somebody,

01:23:06.160 put your hands on them

01:23:06.900 in a way they don't like.

01:23:09.020 So anyway,

01:23:09.300 it gets complicated,

01:23:10.260 but intention appears,

01:23:12.260 at least on paper,

01:23:12.860 to be an element of the crime

01:23:13.880 and that's why he'd put him on.

01:23:16.160 Megan,

01:23:16.760 what can he tell you

01:23:18.740 to get you

01:23:20.600 to feel differently

01:23:21.760 than his own chief

01:23:22.760 and the other experts

01:23:23.740 who say that this was excessive force?

01:23:25.600 And I say that rhetorically.

01:23:27.100 I know that's a great question.

01:23:28.640 There's nothing he can say

01:23:30.420 that's going to get you

01:23:31.300 to change your opinion.

01:23:32.620 Nothing.

01:23:33.880 Megan,

01:23:34.220 if I can just interrupt

01:23:35.320 breaking news,

01:23:36.920 a medical expert testified

01:23:38.260 that George Floyd,

01:23:39.660 quote,

01:23:39.900 died from a low level of oxygen,

01:23:42.660 rebutting defense arguments

01:23:44.100 that drugs contributed to his death.

01:23:47.960 So that's what they're going to say.

01:23:49.700 They're going to say

01:23:50.280 the defense all along

01:23:51.380 and they,

01:23:51.680 I mean,

01:23:51.860 sorry,

01:23:52.120 the prosecution

01:23:52.600 and they've said in their opening

01:23:53.620 that he died of asphyxia,

01:23:55.880 which is basically lack of oxygen.

01:23:57.540 So this is the witness

01:23:58.580 that's basically

01:23:59.360 going against the medical examiner.

01:24:01.380 Yeah.

01:24:01.680 And there's going to be more.

01:24:02.700 They have a bunch of medical.

01:24:03.820 I mean,

01:24:03.980 Dr. Bodden was one of the people

01:24:05.120 that the defense

01:24:05.940 that George Floyd's family

01:24:06.840 had come out there

01:24:07.540 and, you know,

01:24:07.940 he did his thing

01:24:08.600 and he's ready to testify

01:24:09.600 for the prosecution too.

01:24:12.500 But yeah,

01:24:13.020 they're going to have

01:24:13.460 no shortage of medical testimony

01:24:14.760 disagreeing

01:24:15.820 with the medical examiner,

01:24:17.100 Dr. Baker.

01:24:17.660 But Dr. Baker's the only one

01:24:18.760 who actually laid hands

01:24:19.820 on George Floyd's body,

01:24:21.260 who actually physically examined him,

01:24:22.520 who said

01:24:22.880 there was no bruising on the neck,

01:24:24.400 not even in the under layers,

01:24:25.780 like when he dissected the neck.

01:24:27.660 Did he see any trauma to it?

01:24:29.620 And in fact,

01:24:31.040 what he saw

01:24:31.620 was a guy who died

01:24:32.440 of a heart attack.

01:24:33.160 So he's got,

01:24:34.400 he's definitely got

01:24:34.980 a greater level

01:24:35.680 of credibility coming in.

01:24:37.560 We'll see how he sounds

01:24:38.840 when he's on the stand,

01:24:39.720 right?

01:24:39.980 But I'm not surprised

01:24:41.540 because that's the prosecution

01:24:42.540 said an opening is

01:24:43.280 we're going to prove

01:24:43.800 he died of asphyxia.

01:24:44.740 That's what they need to prove.

01:24:45.760 And the defense said,

01:24:46.700 no, it's a heart attack.

01:24:47.680 And if the prosecution's smart,

01:24:49.220 they'll put on somebody

01:24:49.780 who says not only did,

01:24:50.740 yes, asphyxia,

01:24:51.840 but if it wasn't asphyxia

01:24:53.020 and it really was a heart attack,

01:24:54.580 it was a heart attack

01:24:55.500 caused by,

01:24:56.260 by George,

01:24:57.640 by Derek Chauvin.

01:24:58.900 You know,

01:24:59.040 like what he was doing to him,

01:25:01.220 at least forcing

01:25:02.260 like a difficulty breathing,

01:25:03.900 if not cutting it off,

01:25:05.420 could lead to a heart attack.

01:25:07.320 Right.

01:25:07.540 There's a lot of ways

01:25:08.180 to skin the cat,

01:25:09.080 so to speak.

01:25:10.380 There's a lot of arguments

01:25:11.440 they can make.

01:25:12.280 So what do you think now?

01:25:13.480 Like before,

01:25:14.220 prosecution hasn't rested.

01:25:16.040 How do you place the odds

01:25:17.360 of a conviction

01:25:18.840 on anything, Arthur?

01:25:20.160 Oh, I think,

01:25:20.800 I don't think,

01:25:22.340 I don't see any scenario

01:25:23.740 where Derek Chauvin,

01:25:24.940 you know,

01:25:25.180 walks out of that courtroom.

01:25:27.180 It's just the issue.

01:25:28.480 And these are weird laws,

01:25:29.660 as you were describing,

01:25:30.820 you know,

01:25:31.000 the felony murder,

01:25:32.700 which is the top count,

01:25:33.560 which you know

01:25:34.380 the prosecutor wants

01:25:35.360 that really badly.

01:25:36.660 I think their argument

01:25:37.900 is going to be

01:25:38.640 in closing arguments,

01:25:39.720 and look,

01:25:39.980 we still have a couple

01:25:40.680 of weeks to go,

01:25:41.360 but the prosecutor

01:25:41.960 is going to say,

01:25:43.540 according to the police chief

01:25:45.520 and all the other

01:25:46.160 police experts,

01:25:47.400 after he subdued

01:25:48.780 those other four minutes

01:25:50.120 where he's lying there

01:25:50.940 motionless

01:25:51.460 with his knee to his neck,

01:25:52.580 that is an assault.

01:25:54.100 At that point,

01:25:54.780 he doesn't need

01:25:55.380 to be doing that.

01:25:56.300 He's using excessive force,

01:25:57.960 and we're telling you

01:25:58.880 that that's an assault.

01:26:00.160 And if while he's

01:26:00.960 assaulting him,

01:26:01.820 it causes his death,

01:26:03.000 you have to find him

01:26:04.260 guilty of murder

01:26:05.320 in the second degree.

01:26:07.380 What do you think, Mark?

01:26:08.660 Wouldn't have been said

01:26:09.600 any better.

01:26:10.420 I'll take the other side

01:26:11.520 just because let's try

01:26:12.720 to take the other side.

01:26:14.320 The prosecution,

01:26:16.620 hold on,

01:26:17.300 I'm on the defense side,

01:26:18.380 I'm arguing,

01:26:18.940 okay.

01:26:19.800 Who do I represent?

01:26:21.540 No, but it's also weird

01:26:22.580 because I have to discredit

01:26:23.800 my own,

01:26:24.780 you know,

01:26:25.040 on the defense side,

01:26:26.080 I have to say,

01:26:27.060 you'll see why it's difficult.

01:26:28.700 Here I am,

01:26:29.100 the defense lawyer,

01:26:29.820 saying,

01:26:30.820 the prosecution

01:26:31.660 failed

01:26:33.060 in their attempt

01:26:34.720 to discredit

01:26:36.080 their own witness

01:26:38.340 concerning the cause

01:26:40.060 of death.

01:26:40.940 We have now,

01:26:42.220 we have

01:26:42.960 controverted testimony,

01:26:44.980 but credible testimony

01:26:46.200 from their medical examiner,

01:26:49.200 and they didn't like

01:26:50.260 what he had to say,

01:26:51.400 so they went

01:26:52.180 and found other people.

01:26:53.920 So now you've got

01:26:55.020 some opinions

01:26:56.340 in favor of the defense,

01:26:57.840 some in favor

01:26:58.340 of the prosecution

01:26:59.020 regarding the cause

01:26:59.900 of death.

01:27:00.820 That's reasonable doubt.

01:27:02.740 Yeah.

01:27:03.200 Believe Dr. Baker.

01:27:04.600 I have to tell you,

01:27:05.500 I'm laughing over here

01:27:07.100 picturing you, Mark,

01:27:08.000 touching your clients

01:27:08.720 like Joe Biden

01:27:09.480 with a teenage girl.

01:27:10.960 Like,

01:27:11.240 like the little,

01:27:13.600 you know,

01:27:13.840 the photo booth

01:27:14.600 where you get the four photos

01:27:15.720 of the two of you posing.

01:27:17.160 You'll do whatever it takes

01:27:18.420 to humanize your client.

01:27:20.040 Arthur,

01:27:20.480 you know,

01:27:20.760 Arthur touched Weinstein.

01:27:22.420 You know he did.

01:27:23.280 All the time.

01:27:23.940 Oh,

01:27:24.100 because Weinstein enjoyed it.

01:27:25.480 He's like,

01:27:25.740 this is not how it's done,

01:27:26.840 Arthur.

01:27:27.600 I'm taking the fifth.

01:27:28.400 I'm taking the fifth.

01:27:31.740 All right,

01:27:32.240 guys,

01:27:32.580 to be continued.

01:27:33.280 We'll talk again soon.

01:27:34.460 Thank you so much,

01:27:35.320 Megan.

01:27:39.220 Our thanks to

01:27:40.260 Professor Dershowitz

01:27:41.340 and Arthur Idala

01:27:43.120 and Mark Eiglash.

01:27:45.000 And don't forget

01:27:45.520 to tune into the show

01:27:46.440 on Monday

01:27:47.080 because we are going

01:27:48.320 to have Clay Travis,

01:27:50.380 the founder

01:27:51.080 of Outkick.com.

01:27:52.840 And if you're not

01:27:53.240 getting your sports news

01:27:54.200 and commentary

01:27:55.360 from Outkick.com,

01:27:57.060 the question is why.

01:27:58.380 That's where you need to go.

01:27:59.400 What are you watching

01:27:59.820 ESPN for?

01:28:00.820 That's far left.

01:28:02.020 It's woke.

01:28:03.100 It's been annoying

01:28:04.120 for even me,

01:28:05.160 a non-sports fan,

01:28:06.240 because their crazy

01:28:07.260 woke lectures

01:28:07.960 meander over

01:28:09.120 into the lane of news

01:28:10.080 and I get bombarded

01:28:11.020 by them all too often.

01:28:12.940 Well,

01:28:13.100 Clay felt the same

01:28:13.900 and left

01:28:14.940 and created his own venue.

01:28:16.680 And,

01:28:16.860 you know,

01:28:17.380 our pal Ben Shapiro

01:28:18.360 mentioned something to us

01:28:20.180 about a possible

01:28:21.680 partnership with them.

01:28:22.640 Is that going to happen?

01:28:23.700 Are they going to grow?

01:28:24.400 Are they going to dominate?

01:28:25.120 Are they part of the new lane

01:28:27.020 of communication

01:28:27.720 that we're all trying to create?

01:28:29.220 We'll talk to him about it

01:28:30.340 and I'll ask him about MLB

01:28:31.700 and why he hates Georgia

01:28:33.860 but loves China.

01:28:34.860 That'll be fun.

01:28:35.960 Tiger Woods,

01:28:36.620 did you hear the release

01:28:37.740 of the information

01:28:38.300 on what caused his crash?

01:28:39.780 Why was that kept

01:28:40.700 under the vest

01:28:41.880 for so long?

01:28:43.120 Anyway,

01:28:43.460 Clay's great on everything.

01:28:44.300 He's a lawyer.

01:28:44.860 He's learned it.

01:28:45.660 He's easy to listen to

01:28:46.860 and he's our guest.

01:28:48.160 So go subscribe,

01:28:49.240 download,

01:28:50.000 rate,

01:28:50.320 five stars.

01:28:51.080 Please give us a good review.

01:28:52.860 Still reading them.

01:28:53.860 Still reading.

01:28:54.440 Still reading.

01:28:55.300 Over 16,000 and counting

01:28:56.660 and they're super fun.

01:28:58.460 The other day,

01:28:59.300 Yardley said,

01:28:59.980 can I read them to you?

01:29:01.560 I'm like, okay.

01:29:02.560 So she started reading them.

01:29:03.840 They tend to be nice

01:29:04.580 so that was good.

01:29:06.080 She's seen enough

01:29:06.800 bad things about me.

01:29:07.600 It's nice for her

01:29:08.040 to see some good things.

01:29:09.160 And she gets to one

01:29:09.840 and it's like,

01:29:10.300 Megan,

01:29:10.860 I love your show

01:29:11.600 but sometimes you can be

01:29:12.580 an a-hole. 0.82

01:29:14.420 I don't know.

01:29:17.040 She kind of paused,

01:29:19.000 looked at me.

01:29:20.740 We both laughed.

01:29:21.920 It was a good chance

01:29:22.600 to laugh at myself

01:29:23.380 which is another

01:29:24.380 good thing to model. 0.95

01:29:25.560 Anyway,

01:29:26.420 those thoughts,

01:29:27.120 you can keep those

01:29:28.600 to yourself

01:29:29.000 if you really think about it

01:29:30.660 unless you feel

01:29:31.020 really strongly.

01:29:32.360 Anyway,

01:29:33.280 I hope you have

01:29:33.940 a great weekend

01:29:34.380 and we'll talk more

01:29:35.200 on Monday.

01:29:36.700 Thanks for listening

01:29:37.500 to The Megan Kelly Show.

01:29:39.000 No BS,

01:29:40.160 no agenda,

01:29:41.240 and no fear.

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01:29:48.400 Thank you.

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01:30:13.840 Thank you.

The Megyn Kelly Show - April 09, 2021

Derek Chauvin Trial： Where Things Stand Now, with Alan Dershowitz, Arthur Aidala and Mark Eiglarsh ｜ Ep. 87

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