The Megyn Kelly Show - The Derek Chauvin Trial： What You Need To Know, with Arthur Aidala, Mark Eiglarsh, and Michael Belsky ｜ Ep. 83

00:00:00.420 Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.

00:00:11.860 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:15.140 Today on the program, George Floyd and the trial of former officer Derek Chauvin.

00:00:21.960 It's underway. It's been really fascinating to watch and it is emotionally charged.

00:00:28.220 Be careful where you get your information on this case because, you know, you won't be surprised to hear that the mainstream press is already treating this matter as something only certain things can be said, right?

00:00:41.300 Like you can only talk about it in a certain way and you can't raise certain defenses and that's just BS.

00:00:47.180 Chauvin is not going to win cop of the year in anybody's estimation.

00:00:51.260 The question here is whether he committed murder or manslaughter and he very well may have done that.

00:00:56.540 And we're going to get into all of it, but he's entitled to the presumption of innocence, just like any other defendant is.

00:01:03.260 And we have to be able to talk about the defense. And so we're going to we're going to do exactly that.

00:01:08.100 And we'll go over what we've learned so far.

00:01:10.740 I'm excited today because we have two of my very favorite lawyers and legal commentators rejoining me.

00:01:16.400 These guys have been doing legal segments with me for, I don't know, 15 years now.

00:01:20.180 We've got Arthur Idala and Mark Eiglarsh, who used to come on.

00:01:24.860 We used to call it Kelly's Court and then just did the Kelly file with me forever.

00:01:28.480 Anyway, they're great. They're super smart. They're both former prosecutors, now defense attorneys and legit.

00:01:34.300 I mean, trial lawyers in the truest sense of the word involving, you know, representation in some of the biggest cases you've ever you've ever heard of.

00:01:41.380 And Arthur just got done representing Harvey Weinstein, which I definitely going to give him a little jazz about.

00:01:47.080 That one didn't go his way, which I'm happy about.

00:01:50.460 In any event, we're going to get into all of it with them.

00:01:53.720 And then we're going to be joined by a guy named Michael Belsky, who represented one of the Baltimore six, one of the six officers charged after the death of Freddie Gray.

00:02:01.900 Remember, who was placed under arrest after he had sort of an odd exchange with a cop on a bike and it turned into an arrest and he was placed in a van and then he was dead after the after taken to the police precinct in that van.

00:02:15.520 And the cops were accused of giving him, quote, a rough ride.

00:02:19.120 Anyway, there was a witness in the van who said he heard Freddie Gray hurting himself on the other side, like ramming his head into the wall.

00:02:25.060 Yada, yada, yada.

00:02:25.780 They got an acquittal for those officers were acquitted and exonerated.

00:02:31.220 And I'm going to ask him what to expect here.

00:02:34.580 Like, what are the challenges and what similarities does he see between this case and his case?

00:02:40.300 And how does he place the odds of conviction?

00:02:43.180 So we're going to get into all of that in just one second.

00:02:45.660 But first, this.

00:02:46.560 Mark Eiglarge and Arthur Eidala.

00:02:55.360 So excited to have the gang back together, guys.

00:02:58.700 Yay.

00:02:59.660 Right?

00:03:00.420 And we're all happy.

00:03:01.540 Thank goodness.

00:03:02.340 Thank goodness.

00:03:03.040 I mean, I wish it were, you know, a better occasion.

00:03:05.180 But I'm actually really looking forward to getting your take on this case, because I will tell you that I, I, I never watched the video prior to today.

00:03:16.520 Today.

00:03:17.280 I saw the highlights and I understood the controversy, of course.

00:03:21.600 But I'll be honest with you.

00:03:22.520 I didn't have it in my heart at the time to take it in.

00:03:24.880 It was just I just thought it's going to be too painful.

00:03:29.460 And I watched it this morning for the first time, the whole thing, because I watched the prosecution's opening and I watched the defense opening.

00:03:35.900 And it was horrible.

00:03:38.460 And it was, I had tears running down my face.

00:03:41.940 And I understand, you know, I go into this with a law enforcement officer and my family and understanding how hard law enforcement is.

00:03:48.100 And, you know, I defended the cops in the Freddie Gray case.

00:03:50.860 And I was right on that.

00:03:53.580 Oh, my God.

00:03:55.120 I just think, like, when you look at that, all you can think is, where is Derek Chauvin's humanity?

00:04:02.260 Like, where is it?

00:04:04.220 And I left, you know, listening to the openings, thinking they have to put him on the stand.

00:04:10.640 I realize it's in question.

00:04:11.780 They have to put him on the stand because you have to prove to me that he's a human being before I can even consider anything other than the most severe charge, which is second degree murder.

00:04:22.220 I need to see he's human and I need to hear him talk personally about why he did this, how on any level he thought it was okay.

00:04:34.160 And I'm sure since a lot of the jurors had admitted in their questionnaires, they had never seen the tape either.

00:04:39.620 However, they're having a similar reaction or some of them would be.

00:04:43.720 And this I'll start I'll start with you, Mark, is our you guys are both defense attorneys now.

00:04:48.880 But you today are going to play the part of Chauvin's defense attorney and help us understand the strategy there, Mark.

00:04:55.340 So you tell me, because that's that's the biggest thing they're up against, just the tape.

00:05:00.980 Forget charges, forget elements, forget the lead up to and what might have been.

00:05:06.940 You know, you look at the tape and you think I want to punish him.

00:05:11.060 Yes. But but is it too early in this podcast to disagree with you on a significant point that you made?

00:05:17.020 No, no, I disagree with you. I don't put him on the stand.

00:05:20.540 I don't put him near the stand because any I understand the desire to humanize him.

00:05:25.420 And that's going to be my job to tell an opening statement what kind of person he is.

00:05:29.720 And through witnesses, get in all the people he ever said, God bless you, too.

00:05:34.820 I mean, any good act that I can possibly get out, I'll get out.

00:05:38.640 But Megyn Kelly, there is he will be crucified on the witness stand and any benefit that you will get through humanizing him is going to be significantly outweighed by the hours of agony that he will face during cross-examination.

00:05:55.380 You make this more about science, about how there's another cause of death, that it wasn't him.

00:06:02.520 And, you know, you try to argue that narrative, which I don't think will succeed.

00:06:05.980 But again, that's what you do. You get the experts and you argue science.

00:06:10.420 I you raise a good point. He'll get killed on cross-examination. 0.97

00:06:13.640 But I guess I mean, it's easy for me to say is like a third party witness.

00:06:16.680 But don't you want to hear him? I want to hear him.

00:06:20.220 I want to hear him say he's sorry that he he was he regrets it.

00:06:24.880 You know that his heart was in the right place as a human.

00:06:27.440 I want to hear him say it.

00:06:28.940 I'll say it for him in closing.

00:06:30.460 I'll say it in places that they won't even allow me to say it in trial.

00:06:33.740 I will say it. I will get that point across.

00:06:36.020 He wishes he could take it back.

00:06:37.660 But, you know, he had to do whatever I need to say.

00:06:40.760 I will say a good lawyer like Arthur and I'll let him speak.

00:06:44.200 You'll get that out.

00:06:45.620 But you don't put him on the stand.

00:06:47.820 If I may, you you both may be right.

00:06:49.840 It's just it's just way too early to tell.

00:06:51.780 It really is.

00:06:52.360 If if Mark's idea plays out and, you know, listen, there are three different autopsy reports here, three different causes of death to some degree or another.

00:07:03.080 If the science plays out so favorably to the defendant, then, yes, you keep him off the stand.

00:07:08.340 But Megan, I, I will admit yesterday or when I watched the opening statement, that was the first time I saw the entire video.

00:07:15.600 And I had the same feeling, the same reaction that you did.

00:07:19.740 First of all, like, what are you doing?

00:07:21.160 And it wasn't just the video, the visual part.

00:07:24.120 It was the commentating by the bystanders of, you know, they're giving you basically a play by play of what's happening.

00:07:31.800 And I could see throwing a Hail Mary pass because that's what I think would be by putting the defendant on the stand.

00:07:38.980 You would have to have him prepped for days and days.

00:07:42.300 And you have to have another person from your legal team cross examine him as if they're the prosecutor in anticipation of all the questions that would be coming his way.

00:07:52.020 And I don't know what reasonable answer he could have after George Floyd is absolutely motionless.

00:07:59.980 And the part, the part that defied all reasonable doubt to me was when the female identified herself as an EMS officer and said, let me just take his pulse.

00:08:12.600 And that was not allowed.

00:08:14.160 And allegedly, according to the prosecutor's opening statement, he, he showed him was reaching for his taser to tase the EMS officer.

00:08:21.480 So I don't know.

00:08:23.140 I don't know what the answers would that would come out of his mouth as to what what he would say.

00:08:29.860 His biggest defense, in my opinion, is his size versus Floyd's size.

00:08:33.340 There's a huge difference.

00:08:34.700 But after the guy's not moving for four minutes, I don't know what his answer would be.

00:08:39.900 And he did.

00:08:40.800 You could see him go for his mace when the woman came up. 1.00

00:08:43.820 Now, I can understand trying to justify that as a police officer by saying you control the scene.

00:08:49.100 You don't. How does he know she really is?

00:08:51.140 He doesn't know what she's going to do.

00:08:52.280 She could be a troublemaker. 1.00

00:08:54.080 You know, a lot of the times, as you guys know, use of force looks terrible, even when it's totally justified.

00:09:01.580 And the general population watching it will find it very disturbing when a cop knows it's OK.

00:09:07.840 And in legally, I'm not talking about this case, but, you know, and it may be OK.

00:09:11.880 So I can see him saying step back, lady, but why it took him so long to to reach down and search for a pulse when he could see the guy was not responsive, that he he'd become quiet, he'd become limp.

00:09:25.920 And then, you know, and even if you want to give him the benefit of the doubt there, the the ambulance arrives.

00:09:33.220 He still doesn't get off of him.

00:09:34.560 Right. Right.

00:09:35.820 He the gurney is next to him.

00:09:38.360 See, what you want, Megan, is something you cannot get.

00:09:42.180 You want to hear what he has to say.

00:09:45.240 And it makes sense.

00:09:46.940 It will not make sense if he's human.

00:09:49.180 He gets on that witness stand, which is why I don't put him on.

00:09:51.620 And he says, I screwed up big time.

00:09:55.260 And there's no.

00:09:56.120 So what essentially he's doing is he's sealing his fate.

00:09:58.720 He's saying that he caused the tragic demise.

00:10:01.800 So I say you humanize him.

00:10:03.560 I agree. But you do it by by the attorney working in things that are arguably objectionable, if not completely objectionable.

00:10:13.040 But they hear it.

00:10:14.380 They get to know who he is.

00:10:16.420 They get to know his mindset.

00:10:17.900 But there's nothing to be gained by putting him on the stand.

00:10:20.940 I'll tell you, there's one exception.

00:10:22.660 And that's if this client begs me to put him on the stand.

00:10:25.960 And I say on the record, it's over my objection, but he wants to testify.

00:10:29.980 And then he does it.

00:10:31.000 And then I'm like, look, he lost this case and he didn't follow my instructions.

00:10:35.360 It would almost be a gift.

00:10:36.780 Mm hmm.

00:10:37.680 You know, before I watched the tape, I was actually talking to my family about this because I was reading my team gave me a transcript of all the back and forth that we hear on the tape.

00:10:46.980 And it was kind of helpful to read it before I watched the whole thing, the whole 929, as the prosecutor kept saying.

00:10:53.180 And he, of course, wants the jury to believe it's all about that 929.

00:10:55.980 And the defense wants you to believe it's about much more than that.

00:10:58.440 It's about Floyd's reaction, Floyd's behavior beforehand and leading into the event, what the other officers had been through and what Chauvin knew and what he saw himself.

00:11:05.680 OK, but when I when I went through it and I, you know, I sanitized it a bit for, you know, my family, obviously, I had my kids watching it, but I wanted my kids to know what was going on.

00:11:16.280 And my daughter, who's definitely my most sensitive child, she got tears in her eyes.

00:11:21.960 And the part that broke her heart was when he was calling out for his mother.

00:11:25.660 And these jurors, they're human.

00:11:28.660 He's he's a grown man.

00:11:30.780 You can tell he's suffering.

00:11:32.340 He says, I can't breathe 27 times, as the prosecutor pointed out repeatedly.

00:11:37.040 He begged, please, please tell my kids I love them.

00:11:41.160 And he's calling out for his mother.

00:11:42.700 I just think, like, this is why the defense tried to plead.

00:11:47.940 This is why they said, please, just we'll plead guilty to manslaughter.

00:11:51.160 And it's also, frankly, why the prosecutor said no.

00:11:55.260 Megan, you know, the jury is going to hear evidence that the last time he was arrested a year ago, he called out for his mother as well.

00:12:01.360 So I do think that is going to a little bit, just a little bit diminish the fact that he's calling out for his mother.

00:12:08.680 That is one of the rulings that the judge has made that the jury will allow will be allowed to hear about Floyd's 2019 arrest.

00:12:15.600 That number one, he resisted arrest.

00:12:17.700 And number two, in the course of resisting arrest, he said, I can't breathe.

00:12:21.740 And number three, he called out for his mother.

00:12:23.860 Now, I'm surprised the judge let that in only because the defendant did not know that at the time of the arrest.

00:12:30.840 It would be different if he knew it at the time of the arrest and say, this guy does, this is his act.

00:12:35.400 This is his routine.

00:12:36.700 So I'm surprised that the judge, that was a very good ruling for the defense that that is allowed to come in.

00:12:42.440 Because all of a sudden, Megan, I wonder what your daughter's reaction would be if you were like, well, you know, he got arrested like 10 months before this.

00:12:49.400 And he kind of did and said the exact same thing.

00:12:52.400 He resisted.

00:12:53.380 He said, I can't breathe.

00:12:54.480 And he called out for his mom.

00:12:55.760 Well, you know, it diminishes the sincerity of it all.

00:12:58.080 You won't be surprised to learn.

00:12:59.440 I I had seen that and I shared that with her.

00:13:03.340 I actually did want to know what her reaction was going to be if she knew he had done it before.

00:13:07.180 I'd say it gave her something to think about.

00:13:09.900 I don't think it moved her.

00:13:10.920 Of course, she's nine.

00:13:11.840 All right.

00:13:12.080 She's nine.

00:13:13.220 But I do think it's a valid point that, you know, the defense point is going to be this is his routine.

00:13:18.680 And cops, whether Chauvin knew that about George Floyd or not, see this all the time.

00:13:24.400 You guys know this, right?

00:13:25.580 Mark, it's like all the time.

00:13:27.220 The defendants rarely go into custody joyfully without protest, saying the handcuffs feel wonderful.

00:13:34.580 I mean, I can't breathe has become a thing ever since Eric Garner.

00:13:37.680 You hear cops now say every defendant says it.

00:13:40.160 And George Floyd, if you watch the full if you watch the police body cam tapes, which were not in the opening statement of the prosecutor yesterday.

00:13:46.600 But I've seen them and they're available online.

00:13:50.000 George Floyd saying I can't breathe repeatedly well before Derek Chauvin even got to the scene.

00:13:55.060 Correct.

00:13:55.360 And and all that is very relevant.

00:13:57.700 And I thought about that, too.

00:13:59.360 You know, if this had been a minute long, you know, maybe they could have gotten away with it.

00:14:03.980 You know, nine minutes, 29 seconds.

00:14:05.460 If I can't breathe, it's just too long.

00:14:07.320 But here's the question. Did you also tell your daughter of what opioids are, what fentanyl is, the facts and circumstances that got him into that situation?

00:14:17.820 And the reason why I'm bringing this up is not because I think that somehow negates the guilt of the defendant.

00:14:21.920 But that is going to be a defense strategy.

00:14:25.620 It's not about nine minutes and 29 seconds.

00:14:28.280 There's 50,000 pieces of evidence that's coming in.

00:14:31.320 And you'll hear all about how he started the chain of events that led to his ultimate demise.

00:14:37.760 What they're doing there is they are attempting, whether they want to admit it or not, to devalue his life.

00:14:45.220 That's what they're doing.

00:14:46.040 Here's a drug addict, repeated history with law enforcement and problems, and that's what they're doing.

00:14:52.800 I'm looking back now that his George Floyd's May 2019 arrest, which was literally one year prior to the incident with Chauvin that led to his death, is coming into evidence.

00:15:05.680 His behavior is coming in.

00:15:06.940 But actually, Arthur, taking a closer look, the judge ruled his emotional behavior inadmissible.

00:15:12.680 So you and I know, and the, you know, greater jury pool out there, in other words, our audience will know that he said this, he called for his mama, but this jury is actually not going to hear that piece of it.

00:15:25.340 So not going to hear that piece of pattern.

00:15:26.760 I think I think it's just behavioral events at the time that are coming in, but not the statements, not the emotional stuff.

00:15:33.840 So but in any event, you know, there will probably be some testimony by some police expert from the defense saying it is very common for a defendant to say, I can't breathe.

00:15:45.380 Ever since Eric Garner, we knew this even before George Floyd, that, you know, cops will tell you everybody says it now because it's a way of getting the cops off of you, which is what all defendants want.

00:15:54.300 And a cop does have to make a judgment call about whether it's true or it's not.

00:15:59.460 Now, the problem for the defense in this case is, yeah, but your guy had your knee on his neck.

00:16:06.120 Your guy had your knee on his neck for nine minutes.

00:16:08.380 So we had really good reason to believe that claim here. 0.99

00:16:12.080 And and the commentators, everyone who's on the sidewalk, you guys saying, you know, you're a bum.

00:16:17.380 He obviously can't breathe.

00:16:18.420 Look, he's got liquid coming out of his nose.

00:16:20.080 He's bleeding from his nose.

00:16:21.540 He's not moving.

00:16:22.660 Why are you doing this?

00:16:23.480 I mean, it's it wasn't it wasn't like an isolated scene where the cops are in some dark alley and there's no one around.

00:16:29.740 I mean, they have people telling them that this guy is clearly in distress.

00:16:33.120 And this I know George Floyd is a big man, but there's four officers there.

00:16:39.300 They all have tasers, firearms and all kinds of weapons.

00:16:44.280 It just it just that's the part for me, the video, the visual part of it was horrible, horrific.

00:16:51.180 But the audio part really told the story.

00:16:53.860 And there's a bunch of people there who are basically begging the cop to get off of him.

00:16:59.320 Not just George Floyd who's begging for his life.

00:17:01.820 It's civilians who are begging the cop for George Floyd's life.

00:17:06.360 Arthur, how about how about the 911 operator leading off this trial?

00:17:10.320 You know, one of their own, essentially brilliant by the prosecutor, in my opinion, really just for for those who don't know that she called a supervisor because she was able to visually see what was going on.

00:17:24.340 And she had concerns.

00:17:25.500 Now, the cops on the cops.

00:17:27.440 She's the dispatcher.

00:17:28.500 She called the cops on the cop. 0.99

00:17:30.160 Wait, hold on.

00:17:30.680 Stand by.

00:17:31.120 Stand by on that because we have a soundbite of that.

00:17:33.000 And then I'll let you pick it up, Mark.

00:17:34.720 In the incident, something's not going right.

00:17:37.900 Whether it be they needed more assistance or if there were there just something wasn't right.

00:17:51.020 I don't know how to explain it.

00:17:51.980 It was a gut instinct to tell me that now we can be concerned.

00:17:58.260 And what did you decide to do?

00:18:01.280 I took that instinct and I called the sergeant.

00:18:04.120 And do you recall who the sergeant was that you talked to?

00:18:06.960 It was Sergeant Pluger.

00:18:09.120 And why did you call a sergeant?

00:18:14.720 The sergeant is the police officer's supervisor.

00:18:21.640 You're not a Minneapolis police officer.

00:18:24.480 No.

00:18:25.140 You haven't gone through, like, the use of force training.

00:18:27.680 No.

00:18:28.840 But in your experience, you felt something was wrong here that a sergeant needed to know about.

00:18:32.980 Correct.

00:18:34.520 If this was a form of use of force, I was calling to let them know.

00:18:39.120 Go ahead, Mark.

00:18:40.420 Wow.

00:18:40.920 Well, first of all, very cool that you had that clip.

00:18:43.160 So I didn't have to explain it.

00:18:44.340 There it is.

00:18:45.380 And boy, did she water it down.

00:18:47.180 I thought something might have been off.

00:18:49.300 You know, like something just wasn't right.

00:18:51.640 I mean, that's one way to say it.

00:18:53.120 The other way is, oh, my God, I'm watching this cop abuse this man.

00:18:56.580 And it was clear to me and the world.

00:18:58.840 But the defense did the best they could.

00:19:01.860 I don't think they overcame the power of the evidence.

00:19:03.920 But what they argued was, well, you're not familiar with use of force, man.

00:19:07.480 You're not trained in that regard.

00:19:08.960 You don't know anything and how to deal with people.

00:19:11.340 No, no, no, no, no.

00:19:12.220 And that's what the defense did.

00:19:13.720 Well, and I think, you know, as as as kind of shocking as it is to have to call the police

00:19:18.780 on the police, it doesn't.

00:19:21.040 In the end, I think I could handle that as a defense attorney.

00:19:23.540 I think I could say it didn't look good.

00:19:25.100 We understand it.

00:19:25.700 And the defense attorney has made reference to this a couple of times saying, you know,

00:19:29.320 use of force is allowed under the law and it's never pretty.

00:19:33.000 It's it's actually uncomfortable to watch usually.

00:19:36.160 But that doesn't really tell you anything.

00:19:38.080 You can't go by, you know, how it looks.

00:19:40.940 The defense attorney, Eric Nelson's handled lots of police excessive force cases.

00:19:44.820 He's going to know how to diffuse the look of, in general, a police arrest using force.

00:19:52.320 Now, that doesn't that doesn't excuse or explain away exactly the 929, which the prosecution

00:19:58.920 so effectively kept saying 929.

00:20:00.840 And the other thing he was saying, which I thought was really good, was he pulled like

00:20:05.400 a Johnny Cochran.

00:20:06.240 He was like, he does not let up and he does not get up.

00:20:09.360 He was like he kept saying that about Chauvin, even when Chauvin is told that he doesn't have

00:20:13.720 a pulse two times, he does not get up.

00:20:15.960 He does not let up and he does not get up.

00:20:18.120 And he kept saying that over and over.

00:20:19.720 And it was a good phrase because, you know, it's always helpful to give the jury something

00:20:22.420 that they can stick with or write down in their notes that sums up your case.

00:20:25.640 Yeah, it was it was it was effective.

00:20:27.860 I and, you know, normally so when you're in the district attorney's office here in the

00:20:32.820 five boroughs of New York, you know, they give you the little three ring by their handbook

00:20:37.280 of how to try a case as a prosecutor.

00:20:39.800 Usually the first witness you put on is the body ID.

00:20:43.560 So, you know, you put the mother on of the dead child or, you know, because you try to

00:20:47.320 get that sympathy for the loss of life.

00:20:51.640 So this was and they could have done that here.

00:20:53.580 They could have put someone from George Floyd's family on.

00:20:55.860 And usually the judge gives the prosecutor a decent amount of leeway to talk about how

00:20:59.860 old George was and what did he do and make, you know, make everyone sound pretty and you

00:21:04.600 miss them to death.

00:21:05.460 This was a little unorthodox, but I thought it was very powerful because, again, it was

00:21:11.540 like the police calling someone on the police.

00:21:13.720 And they asked that question, have you ever done this before?

00:21:16.280 And she said, no.

00:21:17.500 So it showed how extraordinary these circumstances were.

00:21:20.940 So I want to get to the defense in a minute because it is it's pretty interesting.

00:21:24.560 And I'm I'm trying very hard to keep an open mind, you know, as emotional as I felt watching

00:21:30.280 that tape, I almost feel like it was an advantage that I just saw it the way the jury saw it.

00:21:34.940 Although I had seen, you know, the police body camera footage as well, which they haven't

00:21:39.560 seen yet, but I'm sure will.

00:21:40.760 In any event, I'm trying very, very, very hard to keep an open mind to the defense and

00:21:44.920 the legal elements and see, you know, does the prosecution make its case legally?

00:21:48.520 And so I am open minded to that.

00:21:51.040 But I will say, I think probably the most devastating thing we've seen so far for the defense is

00:21:57.020 the judge's ruling that the prosecution only has to prove that Derek Chauvin's behavior

00:22:01.600 was a cause of George Floyd's death, not the cause.

00:22:06.200 And so all we're going to get into the defense and the fentanyl and the drugs and all that,

00:22:10.180 which is pretty compelling.

00:22:11.380 But if all I got to prove is the knee on the neck was a cause, I'm feeling pretty good

00:22:18.300 as the prosecutor.

00:22:19.720 Of course.

00:22:20.840 So look, it starts with opening statement.

00:22:23.500 I want jurors who will somehow confuse the law.

00:22:26.680 I do.

00:22:27.520 I don't want jurors to follow the law.

00:22:29.120 I want them to be confused.

00:22:30.860 I want them to erroneously think that that has to be the reason and they failed to prove

00:22:36.560 even though that's not what the law says.

00:22:38.240 I'm looking for people who will confuse things.

00:22:41.500 The second thing is I want as many B people who who would be described as B L fill in the 1.00

00:22:47.820 blank.

00:22:48.300 And I'm not saying black because there were four blacks, which actually is higher than 1.00

00:22:53.160 the 20 percent that Minneapolis has.

00:22:56.900 I'm talking about blind.

00:22:58.300 I want blind jurors that can't actually see the videotape.

00:23:01.800 And I'm joking, but the truth of the matter is, once the video is in, that's a problem.

00:23:07.880 Let's look at the defense now.

00:23:09.260 OK, so we've given we've given a lot of what that what we're going to hear from the prosecutor.

00:23:12.700 The prosecutor, by the way, is claiming that George Floyd died by asphyxia and that they're

00:23:17.300 going to put on medical experts to say that their problem is that there was a medical examiner

00:23:23.940 in this case, the Hennepin County medical examiner who did rule it a homicide.

00:23:28.100 They did they did conclude homicide, but they said that George Floyd died of cardiopulmonary

00:23:35.280 arrest, complicating law enforcement, subdual restraint and neck compression, which is a very

00:23:41.640 weird way of saying it.

00:23:43.840 That almost feels like it's been massaged somehow.

00:23:46.240 But they say but but they basically say that he that there was no finding supporting a

00:23:54.060 diagnosis of traumatic asphyxia or strangulation that the underlying health conditions, including

00:24:01.020 coronary heart disease, heart disease and hypertensive heart disease likely contributed

00:24:06.480 to his death.

00:24:07.460 So you've got you get the medical examiner saying he did not die of traumatic asphyxiation

00:24:14.540 and I'll rule it a homicide because I understand what happened here with the knee on the neck.

00:24:19.100 But he died of something bad that happened to his heart in this moment.

00:24:23.980 Do I have it right, Mark?

00:24:25.480 Is that basically what happened?

00:24:27.240 That's it.

00:24:27.740 That's perfect.

00:24:28.500 One of the things I said at the top of this show was you focus on the scientific slash medical

00:24:34.920 evidence and you get them to acquit of of the most serious charges, obviously, or maybe

00:24:40.280 at all that recognizing that maybe his conduct was not ideal and even he acknowledges it because

00:24:47.740 then he wouldn't be in this predicament.

00:24:49.600 But that in order to make a cake, you need all the different elements.

00:24:55.000 Same with peanut butter and jelly.

00:24:56.360 You've got to have peanut butter, jelly and bread.

00:24:58.160 And what you're missing here is the essential element that this was the cause of death.

00:25:02.620 And and we have shown that there's a reasonable doubt as to the cause.

00:25:07.020 And you have an obligation.

00:25:08.420 You swore to all of us that you would follow the law, even if you didn't like it.

00:25:12.700 Forget about the crowds inside and outside.

00:25:14.460 You just lay into them that way and hope that they are empowered to make a difficult, courageous

00:25:20.560 decision based upon the medical and the science.

00:25:23.880 I don't think Eric Nelson.

00:25:25.060 I'm not disagreeing with you, Mark, but I don't think Eric Nelson did that in his opening

00:25:28.260 statement yesterday.

00:25:29.080 I know he didn't want to use, you know, the any kind of technology.

00:25:34.440 And he, you know, he just spoke to them.

00:25:36.140 And I have no issue with that.

00:25:37.580 But if I was going to use anything, I would highlight the the report of the very first

00:25:43.840 medical examiner who, you know, you say, folks, this guy has no horse in this race.

00:25:48.320 He's a doctor.

00:25:49.380 He just reports what he sees.

00:25:51.220 And here's what he sees.

00:25:52.320 What the prosecutor just told you in their opening statement, as far as I know, Mr.

00:25:57.760 Blackwell does has a J.D., not an M.D.

00:26:00.720 And he totally disagrees with what you were just told by this lawyer.

00:26:05.360 This lawyer says he died from his being choked.

00:26:07.600 And the doctor says that's not true.

00:26:10.620 Coming up in one minute, we're going to talk more about the defense strategy and really get

00:26:14.100 into where we think he's going.

00:26:15.700 And we're going to talk about the juries, the jurors that have been selected so far.

00:26:20.500 Who would the defense lawyers we're talking to be looking at as the juror they need?

00:26:27.540 Because keep in mind, when you're a defense attorney, it only takes one to get at least

00:26:31.100 a mistrial declared.

00:26:32.320 And there are a couple on this jury that may seem more police oriented.

00:26:38.400 It's tough to read the tea leaves, but we're going to try to next.

00:26:40.800 One of the M.E.'s, Dr. Andrew Baker, said if George Floyd were found dead at his home

00:26:48.640 with no other apparent causes, you'd call this an O.D.

00:26:52.080 He's saying I'm not I'm not saying that necessarily is what did in this case, but this is a huge

00:26:57.500 amount of fentanyl.

00:26:58.500 Now, the prosecutor tried to get ahead of this by saying he was an addict and what might

00:27:03.240 kill, you know, you or me wasn't going to kill George Floyd because he was a big guy.

00:27:08.160 You know, he's six, six and over 200 something pounds.

00:27:12.600 But that's a ton of fentanyl mixed with other drugs.

00:27:16.320 They said that he he said on tape that he'd been hooping that morning, which we're told,

00:27:22.120 forgive me, is a way of inserting drugs rectally so that you can get high faster.

00:27:26.940 The prosecutor is apparently getting ready to argue.

00:27:28.900 It was a reference to basketball.

00:27:30.360 They found drugs with George Floyd's DNA on it and saliva on them that he apparently tried

00:27:35.900 to swallow before the cops got there or while they got there.

00:27:38.300 The guy was like ingesting tons of drugs that morning and he was judged high by the people

00:27:44.040 he gave the twenty dollar counterfeit bill to and so on and so forth.

00:27:47.840 And so that's the defense.

00:27:49.080 This whole case that George Floyd died because he took enough fentanyl and methamphetamine to

00:27:55.620 kill even a man his size.

00:27:57.880 And Derek Chauvin, they're basically going to say Chauvin was in the wrong place at the 0.99

00:28:02.700 wrong time.

00:28:04.220 Yeah.

00:28:04.460 So so you add to that the drug use coupled with the extensive history of medical issues,

00:28:11.440 coronary disease, enlarged heart, swelling of lungs.

00:28:14.880 All that is the cause of death.

00:28:17.440 And by the way, I think it's time to mention it.

00:28:20.320 We only need one when I say we I'm not on the team, but they only need one.

00:28:24.620 And by that, I mean, get one person, one stubborn juror who says, yeah, I think there's a reasonable

00:28:31.540 doubt as to the cause.

00:28:32.820 I'm not going to find him guilty.

00:28:34.680 Then you potentially get your plea bargain when they consider not consider when they do

00:28:39.040 retry this case.

00:28:40.300 That's what you want.

00:28:41.280 If you can hang this jury up, that's a victory.

00:28:44.320 That's right.

00:28:45.280 I think a manslaughter is a victory, in my opinion, because don't forget there's two

00:28:49.560 charges of murder, one charge of manslaughter.

00:28:52.120 So if you get some sort of if you get that one mark, as you know, in a case of this magnitude,

00:28:56.840 the judge is going to put enormous pressure on the jury to to try to come to reach a verdict.

00:29:02.200 And it wouldn't be the first time that they say, OK, even though you think you should be

00:29:06.760 found not guilty and we think you've been found guilty of the top count murder, too.

00:29:10.140 Why don't we compromise in the middle and we'll just do the manslaughter, which is the

00:29:14.520 least the lowest charge facing it.

00:29:17.040 So this is 100 percent manslaughter, at least.

00:29:21.880 Right.

00:29:22.040 The only real debate we're having here is whether it's something more than manslaughter.

00:29:25.100 I mean, I realize the defense attorney is going for an all out, not guilty.

00:29:28.960 But my own legal assessment is this is 100 percent going to be a conviction of at least

00:29:33.720 manslaughter.

00:29:34.360 And what's really at stake here is whether it will be upgraded to murder, either third

00:29:38.640 degree murder or second degree murder.

00:29:41.020 Do you guys I mean, honestly, do you think there's any reasonable chance of an outright acquittal?

00:29:46.000 No, no, no, that's not reasonable.

00:29:51.460 No.

00:29:52.220 And I think the murder three, what got me on the murder three, because I always I always

00:29:57.560 said it's going to be a manslaughter, manslaughter until I really listened.

00:30:01.420 And I know I'm harping on this, but the video is bad.

00:30:04.980 But the audio to me is is worse, the play by play.

00:30:08.620 And that's where it says it's a you know, that's a disregard for human life.

00:30:13.020 When you have all of these human beings in broad daylight who seem very like credible

00:30:18.480 human beings, whether you believe or not, a woman who identifies herself as a fellow

00:30:22.860 public servant or as an EMS worker. 0.67

00:30:25.260 And they're saying, you know, you're killing him. 0.96

00:30:27.100 You're killing him. 1.00

00:30:27.920 You're killing him. 1.00

00:30:28.600 And to me, that's a reckless disregard of human life.

00:30:31.800 Well, can you just explain, Arthur, the difference?

00:30:33.800 Because we've got manslaughter.

00:30:35.780 It just I don't think most people understand second degree, third degree, and then the

00:30:39.740 lowest charge, which is manslaughter, which is the one Chauvin offered to plead guilty

00:30:43.840 to.

00:30:44.260 And the prosecution rejected it.

00:30:45.620 Okay, so the manslaughter, you don't have to have any, any intent to kill someone.

00:30:52.180 It's culpable negligence and individuals, the culpable negligence.

00:30:56.920 So the negligence that is very obvious creates an unreasonable risk and that the defendant

00:31:02.600 consciously takes chances of causing the death.

00:31:05.760 So it's a chance of causing death or a chance of causing bodily harm to another.

00:31:09.900 So you're not trying to kill anyone, but basically what you're doing, either you should know

00:31:15.480 that it could cause death or bodily harm, or you're so negligent that you create an unreasonable

00:31:21.740 risk of death.

00:31:22.960 So that's the lowest charge.

00:31:24.200 That's what everyone is saying.

00:31:25.320 He's definitely guilty of the third degree murder, which is the next lowest charge.

00:31:30.560 They have to prove beyond a reasonable doubt that kneeling on someone's neck for nine minutes

00:31:36.660 is eminently dangerous, dangerous, and shows a depraved mind.

00:31:42.780 So in and of itself, it's, that's a close call, except when you have all of these human

00:31:48.260 beings, again, reasonably credible human beings.

00:31:52.800 They don't seem like they're people who are mentally deficient, uh, saying, you know, you're 0.95

00:31:57.440 killing him, you're killing him. 0.99

00:31:58.920 That shows the depravity of his own mind. 1.00

00:32:01.920 Well, you can't, that's not true.

00:32:04.020 That's not true.

00:32:04.560 You can't go by that as, as sympathetic as the crowd may be to the jurors and everybody

00:32:10.000 else watching this.

00:32:10.880 You can't go by what the crowd is yelling at the cops.

00:32:14.140 And if they're 10 feet away from him, it's not like they're a football field away.

00:32:17.980 And he's not moving.

00:32:19.200 Absolutely motionless.

00:32:20.920 And he's already told you, I can't breathe.

00:32:23.300 You have a knee on his back and on his neck.

00:32:25.820 And even when the EMS comes, he still doesn't get off of them.

00:32:29.720 He still doesn't say, step right in and take over.

00:32:32.700 And he's handcuffed the whole time.

00:32:35.340 I know that you want to know, what were you thinking?

00:32:39.220 Why after four?

00:32:40.220 And this goes right to the heart of whether it's second, uh, degree, uh, manslaughter

00:32:44.880 or third degree.

00:32:45.720 Like, how do we get from, all right, you were negligent, but what was in your mind at that

00:32:51.520 moment, what were you thinking?

00:32:54.440 And can we somehow find you guilty of something lesser because you mitigate your negligence

00:33:01.560 or recklessness, depending on what they find by you describing to us jurors and the court

00:33:07.000 of public opinion?

00:33:07.740 What the hell were you thinking?

00:33:09.520 And if he's got some type of explanation and maybe he does, and it sounds decent, then

00:33:14.620 maybe you put them on the witness stand for that purpose.

00:33:16.660 I looked at this under the actual guidelines, the Minnesota, uh, guidelines for somebody

00:33:21.680 like Derek Chauvin, who has no priors.

00:33:24.640 And it looks to me, uh, like this is according to the local newspaper that there's the presumed

00:33:30.960 sentence for second degree and third degree is 10 and three quarter years to 15 years.

00:33:36.960 And that the presumptive sentence for manslaughter is only 41 to 57 months, which is, I mean,

00:33:44.740 that's why we'll, we're going to see riots if it's only manslaughter. 0.71

00:33:47.840 I mean, but the prosecution is arguing for higher sentences than the presumptive sentences

00:33:54.880 than the, than the sentencing guidelines would, would dictate.

00:33:58.440 I mean, can that be done?

00:33:59.560 That seems unusual.

00:34:00.940 Can it be done?

00:34:02.700 It can really, you're damn right.

00:34:05.560 Well, I mean, they're not in a vacuum.

00:34:07.460 This is, if, if this wasn't a high profile case and an officer had an exemplary record

00:34:12.640 and, and screwed up one time majorly, then that's when it might be appropriate.

00:34:17.240 But no question.

00:34:18.980 This is all about the court of public opinion and he is going to be the sacrificial lamb.

00:34:23.720 Let's just flesh out these charges a little bit more because there was this whole controversy

00:34:27.060 over the third degree murder charge where the, this judge Cahill, who, by the way, everybody

00:34:31.640 seems like both sides says he's, he's a fair guy.

00:34:34.160 Like everybody expects him to be good.

00:34:35.500 So far, he didn't seem like a Lanseto, you know, wanting attention.

00:34:38.860 Um, so he, he said, no, you can't charge third degree murder.

00:34:42.900 Third degree murder is, is an act that's eminently dangerous to others, to others.

00:34:48.800 It's when a guy robs my store.

00:34:51.380 I run after him with my gun.

00:34:52.860 He runs into a crowd and I start firing at him in, in the crowd.

00:34:57.460 And so that's third degree murder because what I did was eminently dangerous to others.

00:35:02.900 And that's why this judge said, you can't charge that.

00:35:05.220 I'm not allowing third degree murder.

00:35:06.420 It went up to the appeals court.

00:35:07.480 The appeals court said, you're wrong.

00:35:09.580 You have to let them charge it.

00:35:10.760 And so this is, the jury's going to have this one.

00:35:12.780 That one confuses me.

00:35:14.000 And I just, if they do it the way you just said it, Arthur, just prove it's quote, eminently

00:35:19.740 dangerous.

00:35:20.940 Let it hang out there.

00:35:21.980 Forget the part, the part that it's to others.

00:35:24.520 And if it evidences a quote, depraved mind. 0.77

00:35:28.100 Okay.

00:35:28.660 I could see, I could see it, but I don't know how, like, how are they going to find it?

00:35:32.680 It was Emily dangerous to others court in, in, in, uh, Minnesota reversed the lower court

00:35:38.180 judge because they found in another case, not this case, but they found in another case

00:35:43.320 that similar, uh, facts fit into the third degree murder.

00:35:48.240 And they basically overruled the trial judge and said, no, you have to keep it in there.

00:35:52.680 So it's against the trials judge judges.

00:35:55.200 Now a trial judge often has the ability, even after a verdict, as you know, Megan, to throw

00:36:00.460 out a jury's verdict.

00:36:01.480 If he thinks it's against the weight of the evidence, et cetera, et cetera.

00:36:03.840 So let's see how the judge plays with that or how this plays out.

00:36:08.360 If the jury finds him not guilty of murder too, which I think is, that's a bit of a stretch.

00:36:13.980 And what's that one? 0.97

00:36:15.120 That's like, I'm going to keep my knee on his neck and make sure this guy dies.

00:36:19.100 It's like, I'm in it to make sure he's, if there's premeditation involved now, premeditation 0.83

00:36:24.540 doesn't have to be for days.

00:36:25.820 It could be for minutes.

00:36:27.200 And you could argue that nine minutes and 29 seconds can, you could have plenty of premeditation.

00:36:32.920 I believe the prosecutor said this was not a split second decision.

00:36:36.720 This was, I mean, gave the amount of seconds, 400 and something seconds.

00:36:40.380 But I think that, wait, wait, wait, wait, wait, wait, what's the difference then between

00:36:45.260 first degree murder, which is not charged and second degree?

00:36:48.860 Now you're stumping us.

00:36:50.160 I can tell you what it is in New York, killing a police officer or a law enforcement officer.

00:36:54.280 I kind of, that's the difference.

00:36:56.520 Stumped.

00:36:56.980 I thought you were a little off.

00:36:58.020 I think, let me just correct you.

00:37:00.760 He, the, the highest charge, my understanding for which he could be held accountable is the

00:37:05.020 second degree unintentional murder, which is that Chauvin caused Floyd's death while he

00:37:12.820 was assaulting him.

00:37:13.760 I don't think that it requires an intention to kill.

00:37:17.960 I agree with you.

00:37:18.800 That's what, that's what, that's what I saw in my research, although it's confusing because

00:37:22.080 it says caused his death while assaulting him.

00:37:25.160 And I think what they're saying is that assault needs to be like, it has to be an unlawful

00:37:30.700 assault.

00:37:31.260 And that's why the prosecutor yesterday was saying, or on Monday was saying members of

00:37:35.460 the jury use of excessive force against a citizen is an assault.

00:37:41.040 He's trying to get around preemptively the, the jurors knee jerk reaction of, well, a cop

00:37:46.060 is allowed to kind of assault you.

00:37:47.380 I'm like a cop, a cop's allowed to put hands on you that you don't want on you.

00:37:50.300 A cop's allowed to rough you up a little bit.

00:37:52.280 And his point is excessive force is not allowed.

00:37:55.520 And that actually is an unlawful assault and boom, you're the second degree murder.

00:37:59.720 Because if you cause the death while assaulting someone, you've committed this most serious

00:38:05.640 charge.

00:38:07.140 I mean, that's why I wanted that defined properly.

00:38:09.300 You know, there he's looking at 10 and 10 and three quarters years, the 15 years, you

00:38:14.400 know, I think that that's what this is.

00:38:17.700 Well, you know, that the pressure is going to be on the, I mean, the jurors have no say

00:38:22.900 in sentencing, but it's common sense.

00:38:25.200 Second degree, third degree, one's more serious than the other.

00:38:28.180 You know, that they're going to have an enormous amount of pressure.

00:38:30.700 And you started off this whole conversation, Maggie, we're talking about the emotions and

00:38:35.700 as much as they show the video in the beginning and the opening statements, you know, they're

00:38:40.600 going to show that video in the closing statements to pull on the heartstrings of the

00:38:43.560 jurors.

00:38:44.120 Is that the way the system is supposed to work?

00:38:46.600 Not, not ideally, but it's fair to show evidence in your closing statement.

00:38:51.300 And that is going to, the way it affected you and your family and it affected me, it's,

00:38:56.180 it's just naive to say it's not going to affect those 12 people.

00:39:00.720 Can I add to this?

00:39:02.380 You, you tell me one person in that town who doesn't know that the city paid out $27 million

00:39:08.340 for the, I mean, the unreasonable, unlawful actions of their officers.

00:39:15.620 That's the presumption going in.

00:39:17.900 They don't know about that.

00:39:19.520 Yeah.

00:39:19.620 But let's talk about the other video.

00:39:22.520 Let's talk about the body cam video, because when you watch the whole body cam video from

00:39:27.080 the police vantage point, right?

00:39:29.480 Like there, those four guys had body cams on that, that caught more than the prosecution

00:39:34.740 is showing us.

00:39:35.460 Um, and that's where you go to before the nine 29, that's where you go to what, what George

00:39:40.040 Floyd was like leading up to the moment.

00:39:42.700 He found himself in Derek Chauvin's unfortunate custody.

00:39:46.300 Um, he was belligerent.

00:39:48.500 He was strong.

00:39:50.420 The two police officers trying to get him under control.

00:39:53.400 Couldn't do it.

00:39:54.480 He was kicking.

00:39:56.300 He was pushing.

00:39:57.360 He, he totally resisted getting into that cop car twice.

00:40:00.720 They tried to shove him in torso first. 0.80

00:40:02.240 He wouldn't do it.

00:40:03.580 Um, they were out of control.

00:40:06.200 They were not able to control him.

00:40:08.240 That's when Derek Chauvin got there and said, is he under arrest?

00:40:12.360 And the other cops said, yes.

00:40:14.400 And Derek Chauvin did a technique that his lawyer is going to put experts on to say is

00:40:20.460 not only allowed, but was part of his training.

00:40:23.540 The prosecution is going to dispute this, but the defense told us yesterday, they're going

00:40:27.220 to put on experts who say Chauvin was taught this as an acceptable means of getting a defendant,

00:40:34.580 a suspect, somebody you're trying to take into custody under control.

00:40:38.340 And you know, that maybe he didn't do it exactly the right way.

00:40:43.080 Maybe he did.

00:40:43.820 We'll see what the defense is going to argue.

00:40:45.800 They're going to try to show the jury.

00:40:47.980 This is a man, George Floyd, a long criminal record.

00:40:50.960 Um, you know, they, they pointed out before prior to the trial that, you know, he was, he served

00:40:56.080 time for just assault assault, assaulting a pregnant woman by putting a loaded pistol up 1.00

00:41:00.520 to her pregnant belly, uh, and went away for that and didn't want to go away again.

00:41:04.680 And that's why he was belligerent.

00:41:06.880 He was, he was high.

00:41:08.200 He was on the fentanyl and these cops didn't know what they were getting here, but they

00:41:12.420 felt threatened.

00:41:13.340 And that's the situation Chauvin came into.

00:41:15.720 And as the defense lawyer pointed out yesterday or Monday, he's now he's getting surrounded

00:41:20.360 by a crowd, a belligerent, angry crowd, which is not unusual for cops, especially in today's

00:41:25.200 day and age, even prior to this.

00:41:26.940 Um, and they, he was scared of them too.

00:41:29.440 He had to worry about multiple threats.

00:41:31.220 Now that's going to be their story.

00:41:33.180 Yeah.

00:41:33.720 Megan, I'm glad you brought that up because it does two things.

00:41:36.720 It continues on this dialogue that this guy is not who you think he might be.

00:41:45.560 It's not all about nine minutes and 29 seconds.

00:41:48.120 You got to go back to how he chose to set in motion the series of events.

00:41:53.380 Again, I'm not justifying it, but when I saw what happened before, I went, Oh, Ooh, you

00:41:59.520 know, that's not on the cops.

00:42:00.520 That's on his choice.

00:42:01.720 But Mark, as you know, a lot of what Megan just said is not relevant unless you could show

00:42:06.860 that the police officer who's on trial knew about that when he entered the scene, did

00:42:12.320 he know he had prior convictions?

00:42:13.640 Did he know he resisted arrest before?

00:42:15.480 Did he know he went to jail?

00:42:16.780 Did he know he put a gun to a woman's belly before?

00:42:18.900 Or all of that is irrelevant unless you could, then the judge should never let it in unless

00:42:24.460 the cop knew about it and said, Hey, this is a bad dude.

00:42:27.900 He's taken down other cops before he's been in prison.

00:42:30.580 He knows how to handle himself. 0.99

00:42:31.680 He can take a spork and stick it in my neck. 0.87

00:42:34.460 So I really be better be heavy handed with him. 0.89

00:42:37.040 So that's why, even though we know that the jury should never know that.

00:42:40.720 Well, I kind of agree with you.

00:42:42.900 I kind of don't.

00:42:43.360 I think that they need context to know how he got there.

00:42:46.360 So the judge should let all what occurred right before in.

00:42:49.620 But as sure as I'm sitting here, there is no way in heck that the defendant is going to

00:42:54.700 say he didn't know from his fellow officers what just preceded him putting his knee on

00:43:00.040 his neck.

00:43:00.560 For sure he's going to say that.

00:43:02.600 And the other officers, all of whom are charged with aiding and abetting these murder

00:43:06.460 charges, they're on the prosecution witness list.

00:43:10.220 The prosecutor is going to call them.

00:43:12.060 So if I'm the defense attorney for Chauvin, I'm 100% using those guys to get in the body

00:43:18.100 cam from the cops and talk about their state of mind, these officers, and why they told

00:43:23.340 Derek Chauvin that George Floyd was under arrest.

00:43:25.700 It's because of all this stuff, the $20 bill, the drugs.

00:43:30.560 And the defense attorney yesterday made a point of saying there are other witnesses in

00:43:35.500 this case and they're George Floyd's friends who are going to show the jury just how far

00:43:41.260 gone George Floyd was.

00:43:43.620 And here's actually, we have a soundbite of that.

00:43:45.300 Listen.

00:43:45.940 You will hear from Chris Martin, who is the store clerk at Cup Foods.

00:43:51.100 Mr. Martin observed Mr. Floyd.

00:43:53.860 He watched his body language.

00:43:56.920 He interacted with Mr. Floyd in this moment.

00:43:59.720 And Mr. Martin formed the opinion that Mr. Floyd was under the influence of something.

00:44:05.360 Mr. Floyd's friends will explain that Mr. Floyd fell asleep in the car and that they

00:44:11.920 couldn't wake him up, that they kept trying to wake him up to get going, that they thought

00:44:16.720 the police might be coming because now the store was coming out and they kept trying to

00:44:20.900 wake him up.

00:44:21.360 Their point is, the guy was almost, you know, not dead, but like he was ODing.

00:44:29.320 That's what the defense's point is going to be.

00:44:31.300 He was ODing and, you know, he went from sort of this drug rage with the cops to ODing.

00:44:38.760 And that's why Chauvin's not guilty, Mark.

00:44:41.100 Well, good luck with that.

00:44:43.160 You've got to argue it.

00:44:44.380 Look, let's let Arthur and I both do this for a living.

00:44:47.720 The bottom line is, this is a case you don't want to try, but there's no there's no plea

00:44:52.680 bargain.

00:44:53.060 It's an ultimatum.

00:44:54.160 It's a it's a declaration of war, what they probably put on the table.

00:44:57.400 Therefore, you're forced to try this case.

00:44:59.140 You then look at it, you want to devalue Mr. Floyd as much as possible in front of the

00:45:04.000 jury, even though that's not what you want to say on the record.

00:45:06.220 I could say it because I'm not in the case exactly what they're doing.

00:45:09.040 They want to somehow point their finger at him, his prior actions, his actions before

00:45:15.000 the defendant got there and make him look as bad as possible.

00:45:19.020 Hope that you got one juror who doesn't fully understand the law and then pray that they

00:45:24.100 compromise and come up with a lesser charge.

00:45:26.600 So I like the legal analysis there.

00:45:31.460 Let's let's spend a minute talking about the jury, because as you point out, Mark, that's

00:45:35.240 the dirty little truth of criminal defense work.

00:45:37.700 You only need one.

00:45:39.060 You know, the prosecution needs all for a conviction and the defense needs all for an

00:45:43.780 acquittal.

00:45:44.240 But really, the defense only needs one in order for a mistrial, which is a win, right?

00:45:48.580 But for the defense, because then you're in a better position to force a plea.

00:45:51.680 Um, I'm looking at this jury.

00:45:54.220 I think it's extraordinary that it's it's as diverse as it is, given that this is a

00:45:59.440 predominantly white county.

00:46:01.240 Um, you've got something like I'm looking at U.S.

00:46:05.460 Census Bureau.

00:46:06.540 Black people make up nearly 14 percent of the residents in Hennepin County where this

00:46:09.740 happened.

00:46:10.440 Whites make up about 74 percent.

00:46:12.680 And yet we've got eight white, six black or multiracial on this jury of 14.

00:46:16.800 Two of them are going to be alternates.

00:46:17.980 Um, but it's pretty diverse now they asked every question under the sun of these, these

00:46:24.560 jurors.

00:46:25.040 I mean, they had to basically, you know, they had to offer their opinions on like global

00:46:28.380 warming, basically to get on this jury.

00:46:30.480 And, um, here's just a profile of a couple I'd be looking at if I were the defense attorney

00:46:34.940 juror number two, white man in his twenties from Minneapolis.

00:46:38.280 He's a chemist.

00:46:39.500 He said he's logical.

00:46:41.020 He hadn't watched video of the, of the death.

00:46:43.140 He had seen some photos.

00:46:44.280 He had some knowledge of the case.

00:46:45.440 He, um, when he was asked his feelings about black lives matter, he said he supports the

00:46:50.680 movement and the message, but not the organization quote.

00:46:54.180 I support the message that every life should matter equally.

00:46:56.920 I don't think the organization necessarily stands for that.

00:47:00.260 I don't know.

00:47:00.800 I mean, these are vast generalizations, but as you guys know, as lawyers, you make just

00:47:05.180 gross sweeping assumptions about people in the limited time you have to assess them

00:47:08.960 as jurors.

00:47:09.440 I'd be looking at him, Mark, if I were the defense lawyer as possibly my one hundred percent.

00:47:15.740 Um, I, that's what I will typically do when I've had cases like this, where you just need

00:47:21.880 one and I'll stare at that one.

00:47:23.860 And the judge knows I'm staring at that one.

00:47:25.580 I walk and I will position myself in front of that one juror in the jury box and just stare

00:47:30.920 at that one juror and do everything I can.

00:47:33.220 And of course include the others, but, but I know I want that one.

00:47:36.280 And I got that one juror in one major trial.

00:47:38.400 It's exactly what I did.

00:47:39.480 So just to tell you, Megan, how, how I'm not as good as Mark that when I do that, that one

00:47:43.460 juror.

00:47:43.900 So the big hung jury I got in Manhattan.

00:47:46.600 And at the end I met the jury in the back and I went over that one and I was like, thank

00:47:50.300 you so much, dude.

00:47:51.260 You ain't goes, you're great.

00:47:52.120 Mr.

00:47:52.320 I dollar.

00:47:52.780 Give me your card.

00:47:53.540 I was like, I knew you with me from the beginning.

00:47:55.300 He goes with you from the beginning.

00:47:56.760 He goes, I was the one pushing the whole jury for conviction.

00:47:59.680 Your guy is so guilty.

00:48:01.420 He goes, you're amazing.

00:48:03.220 You had six people in there saying he didn't do anything wrong.

00:48:06.240 And meanwhile, they had him on tape doing something wrong.

00:48:08.320 So I never know who the one is going to be.

00:48:10.420 And I usually shoot for three.

00:48:11.840 I try to get three people who I think are going to go my way.

00:48:15.980 But Mark, you know what you're saying about kind of let's question Mr.

00:48:20.660 Floyd's background.

00:48:21.320 I thought the defense attorney was pretty tepid in his attacks on Mr.

00:48:26.000 Floyd.

00:48:26.400 And yet when you watch some of the news coverage last night, there were a lot of people who

00:48:30.460 were like, Mr.

00:48:31.500 Floyd's not on trial and he was attacking him too much.

00:48:34.660 And, you know, it's a real, it's a real slippery slope and a tightrope that you're walking

00:48:38.960 on and bringing out facts that are in evidence and not offending certain people on the jury

00:48:43.480 who may identify in some degree or another with Mr.

00:48:46.980 Floyd.

00:48:47.200 You and I both know we're not there to win over the talking heads on TV.

00:48:53.340 No, I'm worried about the jurors though.

00:48:54.880 If I'm offending the talking heads, maybe I'm offending a juror as well.

00:48:57.920 I don't, I don't, I don't give, you know, what about what these, you know, people in the

00:49:02.380 studios are saying.

00:49:03.500 I'm concerned about what those jurors are saying.

00:49:05.900 And my only chance, one of my greatest weapons is to put the blame more on the decedent

00:49:12.720 than my client.

00:49:14.040 And that is standard procedure.

00:49:16.840 And if you don't do that, then you're not the lawyer for the job.

00:49:19.220 And if it offends people, well, that may happen, but you may not offend any of the jurors.

00:49:24.420 You may offend some of them, but it only takes one to not be offended and go, you know what?

00:49:30.160 Hmm.

00:49:30.620 All right.

00:49:31.000 So maybe we should reduce the charge.

00:49:33.100 That's, you know,

00:49:33.680 You know what offends me a little bit, Megan, is all of these people who don't work in the

00:49:38.600 prosecutor's office who are coming in as pro bono people on this prosecution.

00:49:44.180 Yeah.

00:49:44.320 What's up with that?

00:49:45.200 That's just not supposed to be how the system works.

00:49:48.140 And I honestly, if I'm that prosecutor, if I'm Keith Ellison, I think it's almost an insult

00:49:53.140 to my office that what my staff isn't good enough to handle this relatively simple.

00:49:59.300 I don't want to use the word simple, but relatively straightforward prosecution.

00:50:04.240 Oh no, we need to bring in four or five pro bono people who've been ahead of this

00:50:08.420 division and ahead of that division and they're in private practice and they're federal former

00:50:11.920 prosecutors like, no, no, no.

00:50:13.780 I don't need anyone.

00:50:14.720 And this is my office and my people are competent enough to handle it.

00:50:17.660 How did that happen?

00:50:19.020 I'll take the other side on that.

00:50:20.520 I disagree.

00:50:21.700 In other words, look, if my ego is not my amigo, I'll take whatever help I can get to

00:50:26.760 win a trial that is absolutely necessary to be won from the prosecutor perspective.

00:50:31.420 If someone's willing to offer some assistance, I'll take whatever they're willing to offer.

00:50:35.700 As a leader, Mark, as a leader, what does that say to your chief of the homicide bureau?

00:50:40.420 If you're the VA or you're the attorney general, what message are you giving to the head of your

00:50:46.680 division that he can't handle it himself or she can't handle it himself and I got to bring

00:50:51.140 it outside force?

00:50:52.400 Arthur, that is your message.

00:50:54.880 Your ego is telling you that that's the message.

00:50:57.880 My ego says, I'm not afraid to welcome anyone who wants to come onto my dream team.

00:51:03.580 As long as they know their boundaries, they know their place, they're certainly willing

00:51:07.480 to contribute.

00:51:08.580 I'll take more people.

00:51:10.280 Why not?

00:51:11.100 As long as they don't undermine my effort in any way.

00:51:14.240 Well, I thought this guy, Jerry Blackwell, who I don't understand it, to be honest, he's

00:51:18.280 assisting the prosecutors pro bono.

00:51:20.560 He's the founder of the Minnesota Association of Black Lawyers.

00:51:23.940 I don't understand like drafting somebody in like a ringer to try the case for the prosecution. 0.92

00:51:29.320 And what does that say to every other person who gets killed and there's another murder

00:51:33.080 trial?

00:51:33.760 Are you going to bring in someone as one life more important than the other or one defendant

00:51:37.180 is more important than the other?

00:51:38.620 Then are you going to have all this extra help on every murder that takes place in a certain

00:51:43.140 community?

00:51:43.900 Are you going to be fair?

00:51:45.460 Are you going to pretend that this case is like every other case?

00:51:48.160 Really?

00:51:48.640 Well, you know what?

00:51:49.940 You're supposed to try.

00:51:51.240 That's as part being part of the system.

00:51:53.040 You're supposed to try to treat equal justice under the law.

00:51:56.720 Period.

00:51:57.220 Amen.

00:51:57.480 Well, I mean, listen, it's he's better than Keith Ellison, the attorney general of 0.96

00:52:02.300 Minnesota, who's a nightmare and an anti-Semite. 0.89

00:52:05.280 And that's been pretty proven and is in love with Louis Farrakhan. 0.95

00:52:07.940 All right.

00:52:08.120 I'll take this guy, Blackwell, over Keith Ellison any day of the week and twice on Sunday.

00:52:13.660 And I my impression of him, along with the defense attorney, Nelson, for that matter,

00:52:18.060 is they both seemed reasonable.

00:52:21.140 They both seemed sort of calm, almost avuncular.

00:52:25.200 Um, they didn't seem like hotheads in any way.

00:52:28.540 They both like in terms of manner.

00:52:30.500 I think they're on par.

00:52:32.400 I'd give like maybe a slight edge to Blackwell, the prosecutor.

00:52:35.420 I would have liked to seen a little more energy out of Eric Nelson.

00:52:38.960 Um, I'm not a big fan of starting off a defense opening statement right after all of this blistering

00:52:44.420 stuff from the prosecution with the words reasonable doubt.

00:52:47.640 To me, that's almost waving a right white flag. 0.72

00:52:50.340 I mean, I would have started off with saying, stand up, Eric, five foot nine, 140 pounds.

00:52:57.160 Think of yourself, ladies and gentlemen, walking it.

00:52:59.620 It's David versus Goliath to six, six, 260 pounds.

00:53:03.760 Think of the disparity.

00:53:05.120 It's the heavyweight champ against the featherweight champ.

00:53:07.560 Something that's going to pull them into your side.

00:53:10.080 A little bit golden rule, objection, asking to put themselves in his position, but anyway,

00:53:16.220 whatever, you know, you get the point.

00:53:18.820 Just to clarify, you're not allowed to make the jury.

00:53:21.360 Uh, well, you're not allowed to make the jury for its own safety, which is the one I was

00:53:24.200 thinking of, but you're not allowed to what make the jury.

00:53:26.240 All the great stuff that you see in cheesy law dramas on TV where I yell and my wife can't

00:53:31.000 stand watching those shows with me.

00:53:32.280 Cause I go, you can't say that.

00:53:33.620 You can't do that.

00:53:34.800 Yeah.

00:53:34.980 Well, you know what, Megan?

00:53:35.900 I go by the rule.

00:53:36.840 I'd rather ask for forgiveness than permission.

00:53:38.940 Objection sustained.

00:53:39.660 What the jury didn't just hear what I just said.

00:53:41.640 Oh, I think it just, it's a hard drive that just got wiped out from their memory.

00:53:44.920 So let me, so let me ask you, Arthur, in the, in the Harvey Weinstein trial, you said,

00:53:48.200 Mr. Weinstein stand up so the jury can see, Oh wait, Oh, put your walker to the side.

00:53:51.700 Sorry.

00:53:52.260 I had to.

00:53:53.700 You feel better now.

00:53:54.980 I do.

00:53:55.640 You feel better.

00:53:56.500 You got it out of your system.

00:53:58.300 It's great.

00:53:59.180 You can't ask yourself in the position of the, of the defendant, but you do it creatively

00:54:05.500 with, with the minute they object, you just say, you go from, um, you go from

00:54:09.520 imagine you're in his position.

00:54:12.200 Instead of that, you just say, imagine a person, blah, blah, blah.

00:54:15.660 And you just change it.

00:54:16.400 You just shift it.

00:54:17.200 Mark, you're telling me when you have like a one witness ID case and you're the defense

00:54:20.840 attorney and that the witness is, is not the pillar of society in closing argument,

00:54:26.460 you didn't say, Mr.

00:54:27.600 The four person, would you even let him hold your wallet for five seconds?

00:54:30.960 Would you trust him with your driver's license or your, your $20 bill?

00:54:34.920 You wouldn't trust him with that.

00:54:35.960 Then you can't trust him with my client's life.

00:54:38.280 I will do whatever it takes that I can get away with to win the case.

00:54:42.080 Well, listen, so, so the, the bit, one of the biggest problems that Chauvin's going to

00:54:46.360 have, even if, even given the size differential is, um, they're, they're going to put on testimony,

00:54:51.860 the prosecutor from the police chief, his police chief, according to the prosecutor saying,

00:54:57.700 this was an inex, this was not an appropriate use of force.

00:55:03.080 It wasn't lawful and it wasn't within the police department's policy.

00:55:06.040 That's not good.

00:55:07.020 Right.

00:55:07.460 I mean, I don't like, I don't know.

00:55:09.780 I feel like the police chief saying that, and that's what I'm expecting.

00:55:12.920 Like the, the defense is going to argue the opposite, but the, the, the police chief is

00:55:15.920 on the prosecutor's side and they fired Chauvin the next day.

00:55:19.540 That's a bad fact for officer Chauvin.

00:55:22.060 Uh, no one's going to mark.

00:55:25.640 I'm not disagreeing with you, but hold on.

00:55:27.700 I will.

00:55:28.400 I said, what am I doing on the defense side?

00:55:30.040 I say, you know, my client became the sacrificial lamb, you know, people are going crazy.

00:55:35.400 There were riots.

00:55:36.300 You know, he had to say that this was not something that he was taught and that's just

00:55:40.400 not true.

00:55:40.960 And we're going to show you how the techniques that were taught to him, he implemented and

00:55:46.880 he did it properly.

00:55:48.480 If you could say that with a straight face, I'm going to give you another juror.

00:55:51.880 Uh, that's interesting to me.

00:55:53.340 If I'm the defense lawyer, looking for one, looking for one, uh, white woman in her 1.00

00:55:57.680 forties, works in insurance, bachelor's degree in communication.

00:56:01.620 She has not seen the bystander video of George Floyd in its entirety, obviously until the

00:56:05.860 courtroom.

00:56:06.840 Um, she believes there's discrimination in the criminal justice system against black

00:56:10.600 people and other minorities, but also said the police make her feel safe.

00:56:13.640 And she has strong respect for them, somewhat favorable view of black lives matter, but

00:56:17.820 is not involved in the movement herself.

00:56:19.640 Also said she has a quote, very favorable view of blue lives matter and said she would

00:56:25.640 be quote, terrified if the police departments were dismantled.

00:56:29.800 Uh, but she does believe some change needs to happen.

00:56:32.300 Now, keep in mind, they did dismantle the police in Minneapolis, Minnesota.

00:56:36.480 It was a disaster.

00:56:37.460 They already had to refund the defunded police because it was such a nightmare, but I think

00:56:44.180 she's interesting.

00:56:45.180 Very, very favorable.

00:56:46.540 Blue lives matter.

00:56:47.320 Mark.

00:56:47.620 She's, I'd be looking at her too.

00:56:49.800 She's worthy of extra eye contact for sure. 1.00

00:56:53.040 But I still think the best case scenario, Megan, is what you said is, is the manslaughter.

00:56:57.100 I mean, I think that's, that's the victory for the defense and that's kind of a loss to some

00:57:01.600 degree for the prosecution.

00:57:02.860 Um, yes.

00:57:04.380 So, all right.

00:57:05.420 So one, one other thing just to get people up to speed on, like the, I would say the,

00:57:09.440 the prosecution's biggest witness so far was not, uh, the 911 operator, though she was

00:57:15.660 fine.

00:57:16.160 It was not the, the woman who just, they used just to introduce a tape she had taken from

00:57:20.580 across the street of the incident, which I thought added absolutely nothing.

00:57:23.020 And clearly the woman didn't want to be there. 1.00

00:57:24.720 And the biggest buzz about her on Twitter was about her false eyelashes. 1.00

00:57:27.380 Um, but it was the, the third guy, um, Donald Williams, and he was the one who, he was the

00:57:34.780 most vocal guy that you hear on the videotape. 0.97

00:57:37.560 Like you're a bum, you're a bum, effing this, effing that at the cop. 1.00

00:57:41.080 And I mean, I would say, frankly, he's sort of the voice of the people as you watch the 0.99

00:57:45.020 thing go down, you're, you know, you're rooting for Donald Williams, you're on Donald

00:57:48.120 Williams side.

00:57:48.840 And it turns out, um, he's a mixed martial arts expert and basically got certified to

00:57:53.940 testify.

00:57:55.020 I thought this was kind of unusual because it wasn't actually certified as an expert, but

00:57:58.100 they're allowing him to be an expert in mixed martial arts, talking about how Chauvin had

00:58:02.300 him in sort of a blood hold and it was inappropriate.

00:58:05.220 It was cutting off the airway, uh, airway.

00:58:08.120 And, um, Nelson, the defense attorney got his chance to cross-examine Williams on Tuesday

00:58:13.880 and, um, really went after him about how he, he's got a, he's got an ax to grind against

00:58:20.960 cops and he's too angry to be an objective witness in this.

00:58:26.800 And here's just a transcript of what happened, uh, on, on the stand on Tuesday morning. 0.97

00:58:31.160 Defense attorney, you told the BCA that you wanted to quote, beat the shit out of the police 0.99

00:58:35.760 officers. 0.99

00:58:36.640 Williams, that's what I felt.

00:58:38.620 Nelson, you were angry.

00:58:40.460 Williams, no, you can't paint me as angry.

00:58:42.460 I was controlled with professionalism. 1.00

00:58:44.900 Nelson, you called him a fucking pussy ass bitch. 1.00

00:58:48.800 Williams, if, if that's what was heard on the video, I guess I did. 1.00

00:58:53.800 That's good.

00:58:54.620 It's a good cross.

00:58:55.540 Shouldn't he have just owned his anger?

00:58:57.260 Yes, I was angry.

00:58:58.560 A man was being killed.

00:59:00.180 Right.

00:59:01.040 Right.

00:59:02.200 We were all angry.

00:59:03.460 I mean, the truth is we were all angry.

00:59:05.460 And I think that that guy given the play by play, um, you know, I don't, anyone would

00:59:11.420 be angry.

00:59:11.860 So it's not like he, she comes off as being unreasonable by, by calling the guy, those

00:59:17.320 curse words that you just said, because I felt the same way.

00:59:20.440 I mean, I was watching that thing, but I was yelling at the TV and I know obviously what

00:59:24.780 happened, but come on, get off him, get off him. 1.00

00:59:26.680 And that's, I think that those emotions, you know, you can't overcome that when you're

00:59:32.420 a juror.

00:59:32.960 I mean, the best, again, the best case scenario is Mark Iglars gets his one or two jurors

00:59:37.960 who say, no, I want to walk him out of the courtroom.

00:59:40.420 And they say, we ain't walking them out of the courtroom.

00:59:42.640 We'll compromise and we'll give you the manslaughter.

00:59:45.060 And, you know, by the way, Megan, all these jurors now, because it's so easy, they all cheat,

00:59:49.480 right?

00:59:49.640 They're not supposed to look at the law.

00:59:51.100 They're not supposed to see what the sentencing is now when Mark, well, at least when I was

00:59:55.580 trying cases, they'd have to go to the library and pull out a book and find it.

00:59:59.100 Now they just say, Hey Siri, what's the sentence of manslaughter?

01:00:02.600 And so they'll probably, they're not allowed to, but they do it.

01:00:07.260 They do it all the time.

01:00:08.500 They go on Google.

01:00:09.600 They did a thing recently, one of the bar associations, and they asked jurors anonymously

01:00:14.440 how many of them did go on social media during the course of the trial.

01:00:18.900 And it was like a ridiculous number, 35%, 40% said that they do.

01:00:23.860 Wow. 0.62

01:00:24.240 It's just so easy.

01:00:25.360 And a case like this, if they leave the courthouse and they get into a cab, there's going to

01:00:29.740 be radio on in the cab.

01:00:30.800 There's going to be TV on the cab.

01:00:31.960 You're going in an elevator now.

01:00:33.120 It's there.

01:00:33.760 It's omnipresent.

01:00:35.400 Back in the day, when I was trying cases, they'd be sequestered in a murder case.

01:00:39.080 They would be in the custody of the court officers, no newspapers, no radio, no TV.

01:00:43.640 They'd go from the courthouse to the hotel room, back to the courthouse.

01:00:46.620 And they'd be able to talk to their family on the phone where the courthouse are listening

01:00:49.820 in.

01:00:50.240 They were really, it was really much more pure than it is today.

01:00:54.040 I'm less concerned about them checking this possible sentence as I am about what's going

01:01:00.240 on outside of the courthouse.

01:01:02.140 The minute they check their, uh, habitually check their social media and then they see

01:01:07.260 all the posts, it's unavoidable.

01:01:09.800 They know that they, there is intense pressure for them to find this cop guilty of the main

01:01:16.140 charge.

01:01:16.600 They know that they feel it.

01:01:19.340 So that's the toughest thing as a defense lawyer.

01:01:21.680 I have a very similar case where there's a lot of pressure down here in South Florida

01:01:25.440 on a guy that I'm representing.

01:01:26.920 And I, I, I'm, I'm studying this trial because, you know, there's, there's, you've got to take

01:01:32.140 this on.

01:01:32.820 You've got to get them to promise you that they're not going to, you know, they're not,

01:01:36.760 but they're going to, there's no way to avoid it.

01:01:38.700 Right, right.

01:01:40.120 Because the jury, the, the jury's not sequestered.

01:01:42.480 So they are, I mean, they might be once the deliberations start, but they're not right

01:01:46.000 now.

01:01:46.120 So they are out there and you're right, it's everywhere, but, but they know, I mean, there

01:01:51.580 were protests in 60 countries after the death of George Floyd.

01:01:55.020 It led to the biggest civil unrest we've seen in this country in decades.

01:01:59.260 And you'd have to be living under a rock.

01:02:01.460 This is part of the reason why the judge Cahill didn't agree to the change of venue motion

01:02:05.880 because he's like, good luck finding a jury anywhere that doesn't know about this case

01:02:10.720 or know about this video.

01:02:12.900 Moving it to the country is not going to be any more fair to him than moving it, you know,

01:02:16.680 than having it here in the city.

01:02:18.600 I think you could, you could make an argument.

01:02:20.640 I mean, I actually think I disagree with him on that, but okay.

01:02:23.840 It's happening where it's happening, but that's going to weigh on these jurors.

01:02:27.700 Everyone knows what happens in today's day and age.

01:02:29.720 Look what happened in Ferguson, Missouri, when they didn't indict over Michael Brown's death,

01:02:33.420 right?

01:02:33.660 Like we had riots and we saw everything burned and everything burned even after George

01:02:38.160 Floyd was killed.

01:02:38.980 Nevermind a jury had its say.

01:02:41.820 And I do think these jurors are going to be scared.

01:02:44.640 Frankly, can we be honest?

01:02:46.780 It's a little scary just talking about it, isn't it?

01:02:49.100 It's a little scary just being honest about the fact that George Floyd did have a pretty

01:02:54.000 decent criminal record and he was on drugs and there may be a defense here.

01:02:59.200 Like, you know, everybody says you're racist if you say that, but this is a legal case.

01:03:02.820 You got to be able to make a defense.

01:03:04.560 Well, it's even bigger than that, Megan.

01:03:06.120 I mean, look, George Floyd was a victim.

01:03:08.640 He was definitely a victim.

01:03:09.940 In my opinion, he's not a hero.

01:03:12.340 He's not a martyr.

01:03:13.660 He's not someone who should be, he's not a role model and people are making him into

01:03:19.080 that and you know, whatever.

01:03:20.200 I may get thrown off your podcast for saying that, but I mean, that's the truth.

01:03:24.100 Do I want Luca to be like, Hey, you want to grow up and be like George Floyd?

01:03:27.240 No, you don't.

01:03:27.900 I mean, you don't want to be like the defendant in this case or, or like George Floyd who was clearly,

01:03:32.620 I mean, the guy's eating drugs in the amount that would put down a small horse on top of

01:03:37.580 his criminal record, et cetera, et cetera.

01:03:39.260 So I have no problem saying I totally disagree with this exalted view of George Floyd.

01:03:45.400 With that being said, the guy definitely did not deserve to die.

01:03:49.960 The guy definitely was, was mistreated.

01:03:52.840 The police officer, in my opinion, used absolute excessive force, especially after the guy was

01:03:58.600 absolutely immobilized, not moving handcuffed down there for four minutes.

01:04:03.080 But you know, is he a hero?

01:04:04.360 Not, not, not in my eyes or anyone who I know who's being reasonable about his eyes.

01:04:09.240 He's not a hero.

01:04:10.040 He's, he's a victim and he should be mourned as a victim.

01:04:13.180 All right.

01:04:14.620 I'm going to let that be the last word for now, but stay up on your homework guys, because

01:04:19.280 we'll have you back often and continue to follow this.

01:04:22.160 I just feel like there's going to be very few places we can go for truly fair coverage

01:04:25.420 of this trial, right?

01:04:26.740 For the very reasons we're discussing.

01:04:28.460 I really want this to be one of them.

01:04:30.140 And I know you guys well enough to know we'll get that.

01:04:32.700 So may I say a pleasure, pleasure talking to you again.

01:04:35.740 Thank you, Megan.

01:04:36.460 Be well.

01:04:38.120 We're going to get to our next guest in just one second.

01:04:39.980 But first, I want to bring you a feature here on the Megan Kelly program that we call

01:04:43.620 Asked and Answered, where we try to answer some of our listeners' questions.

01:04:48.740 And our executive producer, Steve Krakauer, has got one for me today.

01:04:51.960 Hey, Steve.

01:04:52.520 Hey, Megan.

01:04:53.060 This one comes to us at questions at devilmaycaremedia.com.

01:04:57.220 And it's relevant for today's show.

01:04:58.860 So it comes from Joe Humphrey.

01:05:00.180 He wants to know, I know you ultimately branched out from practicing law, but do you have any advice

01:05:04.440 for someone preparing for law school?

01:05:06.820 Hmm.

01:05:07.700 Don't do it.

01:05:08.860 No.

01:05:09.260 No, I don't mean it.

01:05:12.200 Preparing for law school.

01:05:14.080 I mean, I remember when I was in that position, you don't really have to do anything to prepare

01:05:17.640 for law school.

01:05:18.420 But when you actually get in law school, you have a lot to do.

01:05:20.560 And that is to treat it like it's your full-time job.

01:05:22.720 You know, I used to get to the law library at eight in the morning, and I did not leave

01:05:26.320 all day except to go to class.

01:05:27.820 But in between class, I went right back to the law library.

01:05:30.340 And I studied every waking minute that I wasn't actually in class being taught.

01:05:34.000 Because that's frankly great training for the law.

01:05:38.340 You know, the law is a jealous mistress, and it will always be with you.

01:05:42.160 It will always be trying to seduce you into another tryst.

01:05:46.220 And unfortunately, you're going to have to give it to her.

01:05:48.340 So you might as well start now, understanding that lifestyle and throwing yourself into it.

01:05:51.840 And law school is an enormous opportunity to develop your brain, to just become a greater

01:05:56.120 intellectual, to improve your thinking.

01:05:57.820 So why wouldn't you?

01:05:58.900 It's a gift.

01:05:59.760 You get into law school, you hit the lottery.

01:06:02.500 You should be thanking your lucky stars every night if you can afford it.

01:06:07.100 Because I would say, you know, greater than any other experience I've had in my life,

01:06:10.880 that was critical to the way I think as a human, my three years in law school.

01:06:15.020 I love my time at Albany Law School.

01:06:16.760 I have nothing but great things to say about the school and my time there.

01:06:19.660 But it is what you make of it.

01:06:20.980 You want to phone it in.

01:06:22.300 You just want to, like, learn black letter law or try to, like, learn enough to ace the

01:06:25.340 exam.

01:06:25.720 Okay.

01:06:26.700 A better way might be to actually try to enjoy it and let it sink in and, you know, throw

01:06:32.060 yourself into the Socratic method where they make you stand on your feet and take you down 0.98

01:06:35.920 the lane of an argument that may or may not be correct.

01:06:38.040 And like the mouse in the maze you discover too late, you've gone down the wrong lane.

01:06:42.640 You got to back up.

01:06:43.700 But that's fun.

01:06:45.140 You know, logical reasoning thought through to its successful point or unsuccessful point is fun,

01:06:49.920 I think, for the brain.

01:06:51.800 For me, I love moot court.

01:06:53.200 That was also an important skill to develop as a professional and you could use that doing

01:06:57.360 anything.

01:06:57.780 So just enjoy it and take it deadly seriously.

01:07:01.060 Deadly seriously.

01:07:01.960 You just, you can't, you can't phone that in.

01:07:04.820 And there's no better prep for what's coming your way after.

01:07:08.800 So good luck.

01:07:10.820 Okay.

01:07:11.220 We're going to get to Michael Belsky in one second.

01:07:13.580 But first this.

01:07:20.840 Michael Belsky.

01:07:22.060 Thank you so much for doing this.

01:07:23.440 I've been wanting to talk to you for a long time.

01:07:25.720 I want to talk to you about Freddie Gray's case.

01:07:27.560 I want to talk to you about this case.

01:07:29.460 But you're somebody who knows a thing or two about defending a police officer in the

01:07:34.060 national spotlight in a case that there's all sorts of considerations at play.

01:07:39.180 It's not just about the evidence.

01:07:40.640 It's about the public pressure.

01:07:41.820 It's about, you know, public servants who feel like they, they, they got to do what

01:07:46.720 they got to do, irrespective of what the law may dictate.

01:07:49.760 I think we're looking at a lot of that in this George Floyd case.

01:07:54.280 So you tell me, cause you, you've actually been there.

01:07:56.900 You represented police officer.

01:07:58.760 I call him the Baltimore six charged in the Freddie Gray case.

01:08:02.140 And you've got a complete exoneration for your, for your client.

01:08:05.580 Lieutenant Rice.

01:08:06.460 He's, he's been exonerated.

01:08:09.320 But you tell me whether you see similarities between Derek Chauvin's trial and the trial

01:08:13.900 that you handled.

01:08:15.540 Sure.

01:08:15.800 I mean, there's, there's a lot of similarities, you know, and a lot of different

01:08:19.740 differences.

01:08:20.100 Every, every case is different and that's why we have juries.

01:08:24.380 But, you know, from a, from just an optic standpoint, there are a lot of similarities.

01:08:29.240 Number one, there's a tremendous amount in both cases, public scrutiny and public interest

01:08:34.740 in it.

01:08:36.280 You know, just procedurally, there were settlements in both cases on the dawn of trial.

01:08:41.180 There were protests and, you know, and significant public interest in it in both cases.

01:08:47.580 Um, you know, from a factual perspective, there are a lot of similarities.

01:08:51.740 Um, there's allegations in both cases that the police used unreasonable force, that the

01:08:56.960 police didn't treat the situation as a reasonable police officer would.

01:09:00.580 Um, you know, just in even more specific factual similarities in both cases, there were literally

01:09:07.240 allegations of, um, a resistance of arrest to the point that a vehicle began rocking.

01:09:13.380 I mean, just eerily factually similar, um, allegations, but there are also a lot of differences.

01:09:20.800 Yeah, yeah, yeah.

01:09:22.200 So, but before we get to those, let's, let me stop and ask you about one of the things

01:09:26.060 that I'd like to flesh out.

01:09:27.580 I mean, on the eve of, of trial, in this case, it was announced that the city of Minneapolis

01:09:33.320 entered into a settlement with George Floyd's family in which they get paid $27 million.

01:09:40.020 That's a big settlement.

01:09:41.460 And, you know, if I were the defense attorney, I would have been going nuts about that being

01:09:46.380 made public when it was and renewing my change of venue motion, which this judge really didn't

01:09:51.400 want to entertain anyway.

01:09:52.480 But you tell me whether that plays into the prosecution's argument, you know, that this

01:09:58.200 is, it's an admission by the city.

01:09:59.640 Like I'd be up there saying Chauvin was fired the next day.

01:10:02.180 You're going to hear from the police chief that this was excessive force and the city

01:10:05.560 paid $27 million to the family.

01:10:07.900 So what are we doing here?

01:10:08.960 Just convict and let's put an end to this. 0.57

01:10:11.640 Right.

01:10:11.780 I mean, it's, it puts the defense at a tremendous disadvantage, right?

01:10:16.080 Because you're right.

01:10:16.780 It is a tacit admission by the government that a wrong was committed.

01:10:22.200 And it's very difficult to divorce yourself as a lawyer from, from that conclusion.

01:10:27.260 But like every fact, it is also a double-edged sword because a juror could look at the situation

01:10:33.260 and look at the facts of this case and have questions and say, well, some element of justice

01:10:38.180 has been served.

01:10:40.020 And I'm now sitting on a criminal trial, not civil trial.

01:10:43.080 Well, and because some element of justice has been given, maybe I'm going to err on the

01:10:48.640 side of caution and give the benefit to the officer.

01:10:51.020 I don't know.

01:10:51.660 I don't know what the 12 people will think, but like every fact, it could go both ways.

01:10:57.420 But yeah, it's a very, very difficult fact to get around if you're defending this case.

01:11:02.740 There's a lot of prejudice incurred by the fact that the state is tacitly admitting wrongdoing.

01:11:07.380 And the same thing happened in the Freddie Gray case on the Donna trial, there was a civil

01:11:11.000 settlement and it's, it's difficult.

01:11:13.540 When I watched the, the opening statements, you know, you could see the clear strategy

01:11:18.080 that for the prosecution, it was nine 29, nine minutes, 29 seconds.

01:11:21.440 That's what this case is about.

01:11:22.460 And the defense was broad, broad, broad, broad, all the stuff leading up, um, you know, the,

01:11:27.840 the broader crime scene when it was happening, um, the crowd getting in Chauvin's head and

01:11:32.720 making the officers feel in danger and making the show and have to focus on them and not

01:11:38.400 just on what was happening to Derek, uh, to George Floyd, you know, one wants it very,

01:11:42.920 very narrow.

01:11:43.440 One wants it very, very broad.

01:11:44.940 What were your impressions of the openings?

01:11:47.360 I mean, Megan, that's such an astute observation.

01:11:49.520 And that was exactly my, my, uh, my observation of the opening statements was that the government

01:11:54.460 was myopically focused on the nine minutes as they should be, um, that their focus was on

01:12:01.920 those nine minutes and the defense was painting a much broader picture that there's a crowd

01:12:06.960 gathering, that there's, you know, there's a danger to the people around that, that, that

01:12:11.840 there were situations that unfolded leading to the nine minutes.

01:12:15.700 And my, my perception of the opening statements was, I think the state, the government did a

01:12:19.900 very effective job in talking about those nine minutes in a way that, that, that honestly,

01:12:25.680 I hadn't thought about before.

01:12:27.120 Um, you know, focusing on those last four minutes and the amount of time that went by

01:12:32.900 after Mr. Floyd stopped speaking.

01:12:35.200 And I thought they were very effective with that.

01:12:37.680 I think there were ineffective in certain other aspects.

01:12:41.960 And I, I think they sort of, sort of omitted everything that, that surrounded those nine

01:12:48.780 minutes and surrounded where Chauvin and Mr. Floyd were.

01:12:52.800 I, you know, similarly, I think the defense did a very good job at painting a very broad

01:12:59.000 picture and, you know, sort of allowing us to see and feel and hear what Officer Chauvin

01:13:04.460 saw around him and not just with Mr. Floyd, but the crowd and the minutes leading up to

01:13:09.560 the situation.

01:13:11.120 But at the same time, I think that there are questions left unanswered by the defense's

01:13:14.360 opening statement about what happened during those nine minutes, particularly the last four

01:13:19.580 minutes.

01:13:19.920 Um, and so I, I think you're right.

01:13:21.820 I think both sides focused on what they wanted to focus on.

01:13:24.860 I walked away from opening statements, asking myself, these are two totally different stories,

01:13:30.920 two totally different tellings of the same story.

01:13:34.200 And I have a lot of questions.

01:13:36.760 Um, and I'm eager and hungry for the facts to understand exactly what did happen both in

01:13:43.600 those nine minutes and in the moments surrounding it.

01:13:45.780 So you tell me, because the prosecutor was saying, Blackwell was saying, you got four

01:13:50.140 minutes and 45 seconds where George Floyd was crying out for his life.

01:13:53.660 You got four minutes and 44 seconds where he was unconscious, breathless, or pulseless.

01:13:59.240 And the grinding went on just the same.

01:14:01.880 That's what, that's how he put it.

01:14:03.540 And, and reminded the jury that use of force has to be evaluated from moment to moment.

01:14:07.840 Um, so even if you can say the knee on the neck, if the defense can prove that this was

01:14:13.160 an acceptable technique generally, and that even that it was an okay technique for George

01:14:17.280 Floyd for the first four 45, how do you, how do you prove it was okay for the second

01:14:21.600 four 44, right?

01:14:22.660 That seems to be where the prosecution is going.

01:14:24.060 But my impression was, although the, it would have been helpful if the defense had made this

01:14:28.800 more clear, um, he's definitely going to say the technique was okay.

01:14:32.840 And it was taught to Chauvin and, and Chauvin was small and Floyd was big.

01:14:36.240 And that's why the first half was okay.

01:14:38.580 And I think his explanation for the second half is going to be the crowd.

01:14:41.940 It's interesting because the prosecution's painting the crowd as a bunch of heroes.

01:14:45.020 They, they took the time to put a screen grab of the crowd on, on, you know, the screen

01:14:50.540 for the jury.

01:14:51.100 And they're going to call, they've already called a bunch of them.

01:14:53.700 The children came on Tuesday, uh, you know, the younger people who watched it.

01:14:58.500 And so the, the prosecution say, these are citizen heroes who, who saw something wrong

01:15:03.160 and tried to step in and videotaped it.

01:15:04.860 And without the videotape, we probably wouldn't be here, right?

01:15:07.060 Because cops tend to get protected.

01:15:08.640 That's their, that's going to be their case.

01:15:10.280 And the defense is going to say it, the crowd, maybe their heart was in the right place, but

01:15:16.160 they were a bigger problem than they were an asset for George Floyd and everybody else

01:15:20.220 there because they were distracting the officers who, unlike you or me, do need to worry about

01:15:27.380 an angry mob surrounding a crime scene and police officers who are now outnumbered.

01:15:34.380 Yep.

01:15:34.960 So two, two points on that.

01:15:37.360 One, I think you're right.

01:15:38.380 You asked the question or you suggested that maybe the defense could have done a better

01:15:41.320 job in explaining sort of those last four minutes or the crowd.

01:15:44.940 But what's interesting is I think that was intentional because I think there's a question

01:15:49.240 mark as to whether Officer Chauvin, even at this point, is ever going to take the stand

01:15:53.600 one way or the other to explain what the crowd meant to him.

01:15:57.000 And I think that ambiguity, that, that grayness was a sort of intentional because the defense

01:16:03.300 doesn't necessarily at this point know where they're going, but you're right.

01:16:07.040 I mean, the crowd is an issue and the defense will go there because Officer Chauvin had a

01:16:12.880 duty to protect not only himself and Mr. Floyd, but the crowd.

01:16:17.400 And if Mr. Floyd, based on Chauvin's perception, presented a danger to the crowd, he has a responsibility

01:16:23.460 to, um, to protect them.

01:16:25.740 But the interesting thing from the state's perspective, the government's perspective about the crowd

01:16:30.660 is this, and I haven't heard a lot of people talk about this, but there's been a lot of focus

01:16:35.040 about this one person in the crowd who, uh, had medical training.

01:16:39.340 And I suspect, and I, I, you can mark my word on this, that this is going to become a part

01:16:45.040 of the state's theory down the road relative to, in the very least, the manslaughter case

01:16:49.800 is that in those last four minutes, if what started out as an innocent use of force became

01:16:56.040 a crime, and in those last four minutes, even if the cause of death wasn't related to anything

01:17:02.600 Officer Chauvin did and defense can prevail on that, there's going to be this argument

01:17:07.820 that if Officer Chauvin had stopped using force when Mr. Floyd stopped moving or stopped speaking,

01:17:16.240 there would have been an opportunity perhaps for somebody from the crowd to intervene and

01:17:21.900 alter the outcome.

01:17:22.780 And that's going to be an argument relative to the manslaughter charge.

01:17:27.600 But how, I, that's, that's smart.

01:17:29.780 And I, you're probably right about that.

01:17:31.300 Cause I mean, for sure, we, we saw the prosecution talking about how he didn't even get off George

01:17:35.700 Floyd's neck when the EMTs had arrived.

01:17:38.060 It wasn't until they had the gurney next to George Floyd's lifeless body that Chauvin finally

01:17:44.140 removed the knee.

01:17:45.900 Um, and, and there had been pulse checks by that point, which didn't produce a pulse.

01:17:50.860 So, and still he was on there.

01:17:52.640 So that's definitely going to be, those are key moments, but I also think that, you know,

01:17:58.080 if I'm, if I'm Nelson representing Derek Chauvin, I'm going to say members of the jury, you,

01:18:03.400 how did he know this woman really was a firefighter, an EMT worker?

01:18:08.480 How, how do you, like, she's yelling obscenities at them. 0.99

01:18:12.260 Like how, and, and by the way, this is going to be again, a defense argument.

01:18:17.920 How do I know George Floyd is actually unconscious or subdued or whether he's just pretending or

01:18:24.180 whether he's, I've fallen asleep.

01:18:26.400 How do you know as a police officer, because you're taught, this is going to be the argument.

01:18:31.340 This is a safe technique.

01:18:32.840 This is a technique that doesn't cause death.

01:18:34.740 And yet here you have a defendant saying all the stuff we've heard defendants say many,

01:18:38.280 many times.

01:18:38.860 I can't breathe.

01:18:39.920 I mean, that's actually one of the sad things is that it's been used so many times now that

01:18:44.220 I think there are some officers who dismiss it easily.

01:18:46.620 But anyway, I think they'll easily be able to dismiss the EMT because it's like, how does

01:18:50.760 he know?

01:18:51.960 From Officer Chauvin's perspective, you're right.

01:18:53.700 I mean, you're absolutely right.

01:18:56.220 How did he know?

01:18:56.940 And how could he have known that that would have altered the outcome?

01:18:59.660 But from a pure legal perspective, from a manslaughter charge and the necessity to prove

01:19:05.120 causation, it could be an issue even if he didn't know.

01:19:09.020 But I think you're absolutely right in what the defense is going to argue in this case.

01:19:13.000 You're going to hear all of these witnesses take the stand and say, you know, people saying

01:19:18.220 I can't breathe or people, you know, feigning, not that Mr. Floyd did this and I'm not saying

01:19:23.440 that, but people feigning, you know, non-movement, people, you know, saying that, you know, I can't

01:19:33.600 breathe again.

01:19:34.060 Like whatever.

01:19:34.640 Those are tactics used by people all the time to resist arrest.

01:19:39.460 And I'm not saying that's what happened in this case.

01:19:41.460 I'm not saying that it isn't.

01:19:43.040 But you're right.

01:19:43.520 How was Officer Chauvin to know whether that was genuine or not?

01:19:47.800 And that's going to be a part of the defense of this case for sure.

01:19:50.700 You know what I'm finding, Mike?

01:19:51.280 And what matters is what's in his mind.

01:19:52.980 You know what I'm finding, Mike?

01:19:54.140 I'm finding like when I discuss this legally with lawyers or when I think about it logically,

01:19:58.620 I can argue the case.

01:20:00.420 You know, I can argue the case for the defense.

01:20:03.000 And then you see the videotape again and you're like, hell no, this guy's got to go to prison.

01:20:09.020 He's got to go to prison for as long as we can possibly send him to prison because you

01:20:11.920 have to send a message to him and every other cop out there that we will not tolerate this

01:20:16.800 kind of inhumanity when there's another life present.

01:20:21.020 The prosecution kept saying yesterday they opened with the duty of a police officer in

01:20:27.000 Minneapolis to protect with courage and serve with compassion, serve with compassion.

01:20:34.120 And that even when they have somebody in their in their custody, that they would never employ

01:20:39.000 unnecessary force or violence.

01:20:42.240 It's like he he violated his duty to the community, to George Floyd in and you're going to have a

01:20:51.580 parade of cops up there, you know, the police community.

01:20:56.500 There's going to be some to defend him, but they're not largely behind Derek Chauvin.

01:21:00.860 Right.

01:21:01.660 Yeah.

01:21:02.260 I mean, the video tells a very damning story.

01:21:06.200 It does.

01:21:06.860 And it's going to be very hard to defend against the optics of that video, period.

01:21:12.700 End of story.

01:21:13.660 I mean, but the video is only a part of it.

01:21:17.060 The defense was right in their opening statement by saying there's a lot more to this case than

01:21:21.260 the video.

01:21:23.100 And that's why we have jury trials. 1.00

01:21:24.900 That's why we have 12 people sit there for a month and listen to the medical examiner explain

01:21:29.860 what the cause of death was.

01:21:31.300 Listen to people talk about what reasonable use of force is and isn't.

01:21:36.600 But at the end of the day, the video is a video and it does be a damning picture.

01:21:40.440 One that defense is going to have to figure out how to mitigate.

01:21:45.340 It's so emotional.

01:21:46.780 It's emotional.

01:21:47.740 It's like one side, you can make the logical argument, you know, the fentanyl and all that.

01:21:54.020 But when you see the tape, it's emotions take over.

01:21:56.900 And honestly, just common sense takes over. 0.98

01:21:59.000 It's like, get the hell off his neck. 0.97

01:22:01.140 Get up. 0.99

01:22:01.800 Get up.

01:22:02.260 That's how you feel when you watch it.

01:22:03.400 The same way the narrator of the tape feels, you know, Donald Williams.

01:22:08.620 Let me ask you about judge versus jury, because in the case of the Baltimore Six, correct me 0.96

01:22:13.740 if I'm wrong, but didn't you guys have judge trials?

01:22:16.360 So we did, Megan.

01:22:17.660 I mean, it was interesting how that came to be, but we ultimately did.

01:22:23.200 We started with a jury trial.

01:22:24.520 The first officer that went at a jury trial resulted in a hung jury.

01:22:28.300 And by a series of very fortuitous circumstances, we ended up with a court trial on the least

01:22:35.700 egregious of the six officers, which allowed us to sort of watch the judge and understand

01:22:43.420 his perspective and listen to his ruling and dissect it and come to understand where he

01:22:50.400 was coming from, which sort of led the way to the other officers, including my client,

01:22:54.340 ultimately taking court trials.

01:22:56.420 So, yeah, we had court trials.

01:22:57.560 So how does that play?

01:22:59.180 You know, you guys, you have six cops who were exonerated with it by a judge versus this

01:23:07.400 case where you've got a jury who are subject to all the same pressures and pulls as any

01:23:12.260 other human being is, notwithstanding the admonitions they'll get from the court to maintain

01:23:16.380 their fairness and, you know, decide the case based on the evidence only in the courtroom.

01:23:21.100 It's you're playing to 12 people instead of one.

01:23:23.540 And you said you can look at this as a lawyer and you can analyze the legal issues in a detached

01:23:30.520 and objective way, which is what a judge is, you know, equipped to do.

01:23:35.660 Juries don't have the experience of doing that and they're much more emotional and visceral

01:23:39.960 as they should be.

01:23:41.640 And, you know, it's talking to 12 people who are not lawyers is very different than talking

01:23:47.500 to one judge who is a lawyer.

01:23:49.300 Um, and, uh, it's a challenge, um, but there are 12 people and 12 people that come from

01:23:55.300 different avenues and different walks of life with different life experiences.

01:23:59.720 Um, and I, you know, it depends on who those 12 people are as to how you talk to them.

01:24:06.040 Um, but it's a very different game talking to 12 people than to one lawyer for sure.

01:24:10.080 Um, what, what about you represented a cop accused in a case where his fellow cops were

01:24:16.800 also accused.

01:24:18.260 So in that case, forgive me, cause it's been a while.

01:24:22.200 It's back in 16, this trial took place, but I thought everybody had their own lawyer.

01:24:25.260 Each cop got his own lawyer.

01:24:27.040 And, but, and now, and now that's the same situation.

01:24:30.780 So each of these other cops, there's three others.

01:24:33.780 They've been charged with aiding and abetting second degree murder, third degree murder and

01:24:37.720 manslaughter.

01:24:39.040 And we're told that the prosecution's going to call them.

01:24:42.600 So what, what do you, how do you see that situation?

01:24:45.940 The three versus the one, are their interests aligned?

01:24:48.960 What, what's going to happen there?

01:24:50.020 You think?

01:24:50.960 I mean, you know, their charge, as I understand it with crimes at this point, the prosecution

01:24:55.120 calls them, what are they going to do?

01:24:57.180 Are they going to invoke their right not to testify?

01:24:59.800 Are they going to testify?

01:25:00.940 I mean, there's a lot of avenues and a lot of off ramps that this could take.

01:25:05.700 And I don't know how that's going to play out.

01:25:07.720 Um, you know, I can certainly envision a world where they take the stand and invoke their

01:25:11.800 fifth amendment right, because they have pending trials.

01:25:15.220 Um, what's interesting in this case is that the government, um, elected to try the most

01:25:18.940 culpable person first and the less culpable people second.

01:25:23.640 Um, often you see it in certainly in our case, you saw it in the reverse, um, where the government

01:25:29.680 wanted to get the information, um, on the less culpable people before they, they took their

01:25:35.560 shot at the, at the more culpable person.

01:25:37.840 Um, so I don't know how that's going to play out.

01:25:40.040 That's going to be interesting.

01:25:40.960 And then that's going to be a decision that those officers are going to have to make time.

01:25:44.640 Um, if I were advising them, I would be very reluctant to allow them to testify knowing

01:25:50.080 that they have pending, um, trials, but you don't know what's going on behind the scenes

01:25:54.480 and what conversations are being had about potential immunity or potential deals.

01:25:58.820 I don't know.

01:26:00.440 You've got, as I look at the transcript, you've got the one guy, officer Lane, who appears

01:26:05.180 to be the only cop who's expressing any concern that mirrors what the, what the crowd is saying.

01:26:12.760 Like Lane says, roll him on his side and show and says, no, leave him staying put where we

01:26:17.920 got him.

01:26:18.360 Lane says, okay, I just worry about the excited delirium or whatever, which is a thing where

01:26:23.680 you, that that's the defense is going to argue that I think excited delirium, as I understand

01:26:27.420 it, which is like so excited that, that it becomes dangerous, that your adrenaline is

01:26:31.560 flowing.

01:26:31.820 And if you have underlying conditions as Floyd did, it could become obviously problematic.

01:26:37.800 Then Floyd says, again, I can't breathe.

01:26:39.420 And Chauvin says, that's why we've got the ambulance coming lane.

01:26:42.240 Okay.

01:26:42.540 I suppose Chauvin it's fine lane.

01:26:45.500 I think he's passing out.

01:26:47.140 Uh, the crowd starts screaming that Floyd's not breathing lane.

01:26:50.440 He is breathing.

01:26:51.200 And then Kung, I think it's King is how you pronounce the other guy.

01:26:54.420 Yeah, he's breathing lane.

01:26:55.740 Want to roll him on his side?

01:26:57.420 Chauvin doesn't verbally respond.

01:26:59.700 Lane checks the pulse.

01:27:00.760 You got one.

01:27:01.880 Kung responds eight seconds later.

01:27:03.360 I can't find one.

01:27:04.380 And then anyway, but my point is if I'm representing lane, I guess my first thought is I'm better 1.00

01:27:10.080 off than the others because I have a guy who's trying to, to take into consideration the state

01:27:16.040 of, of George Floyd.

01:27:17.280 I think you could also make the case.

01:27:20.640 Maybe he's more culpable than the other two, because he, he recognized there was cause for

01:27:25.960 concern and he did nothing.

01:27:27.040 Just saying a few words isn't good enough.

01:27:29.180 Right.

01:27:29.440 And, and, and if I'm him and I'm his attorney advising him, I'd be very nervous to put him

01:27:35.440 on the stand and testify in this case, absent some, some cushion or some understanding that,

01:27:41.680 you know, what he testifies to is somehow protected.

01:27:45.240 Um, because there are innocuous or potentially innocent statements that he may believe he's

01:27:50.700 going to make, that could come back, you're right, to haunt him.

01:27:53.480 Um, I don't know.

01:27:54.460 I'd be very nervous if I were him in that situation.

01:27:56.640 And I'm sure these are conversations that are all being had behind the scenes right now.

01:28:00.700 By the way, that guy, Lane, he, all, all four of these guys were fired the next day.

01:28:05.440 It was his first week as a Minneapolis police officer.

01:28:09.160 He was 37 years old.

01:28:10.340 I mean, the thought that he's going to be able to sort of overrule the, the, the 20 year

01:28:14.740 veteran who's in control, I think is a lot to ask of a first week cop.

01:28:20.120 The other guy, Kung 26, um, he's for what, for what it's worth, he's mixed race.

01:28:26.540 He identifies as African-American.

01:28:27.960 It was his first week as a Minneapolis police officer.

01:28:31.300 And then there was Tao Tao, who you see quite a bit on the tape, trying to keep the crowd

01:28:35.800 back.

01:28:36.820 Um, and he, he had been there a longer time, I guess.

01:28:40.720 But what about, can you, can I just ask you about the complaints against Derek Chauvin?

01:28:44.400 We're told that in his 20 years or so on the force, he had 17 complaints against that,

01:28:48.380 against him, told that two of those resulted in some sort of disciplinary action.

01:28:54.460 Um, 17 misconduct complaints, two ended in discipline.

01:28:58.960 Um, how does that, like, I'm looking at Tao Tao.

01:29:02.420 He had six complaints against him.

01:29:03.980 None resulted in disciplinary action.

01:29:05.520 He was only 34.

01:29:06.880 Chauvin's 44.

01:29:07.560 So it has more time in life and on the job.

01:29:10.840 How do we know whether, is that bad?

01:29:14.040 Should we be looking only at the disciplinary action or should we be looking at the number

01:29:17.920 of complaints?

01:29:19.300 I mean, I'd want to know more about the complaints and, and what they were.

01:29:23.300 Obviously, um, police officers have a lot of complaints brought against them for benign

01:29:28.880 things like, um, you know, being late to work or, or missing a court date.

01:29:33.780 Not that that's benign, but, but less serious and serious complaints.

01:29:37.440 And, you know, 17 in, or 25 in, in an extended period of time, maybe a lot, um, depending on

01:29:46.760 what they are.

01:29:47.520 Um, I'd want to know more about them, but certainly, um, he doesn't come in with clean hands in that

01:29:53.280 respect, but, um, I, that doesn't surprise me.

01:29:57.340 Um, I, I really would want to know more about what those were.

01:29:59.940 Mm-hmm.

01:30:01.080 They say he was also, Chauvin also, uh, received a medal of valor in 2006 and 2008, a commendation

01:30:07.520 medal in 2009.

01:30:09.140 Uh, one of those was for handling a case in which they had to restrain somebody.

01:30:13.940 And he, that the medical professionals had said that he handled it in a way that saved

01:30:18.680 the person's life.

01:30:20.260 Um, but, and, and so that stuff's going to be used for him and against him saying, you

01:30:24.140 knew how to do a proper arrest.

01:30:25.460 You knew how to do a proper restraint.

01:30:27.540 You were even given a commendation for it.

01:30:29.760 You know, why didn't you do it here?

01:30:31.200 Why didn't you do it here?

01:30:32.760 Exactly.

01:30:33.260 That's every fact.

01:30:34.760 Every fact in this case is going to be a double-edged sword.

01:30:37.520 I mean, every fact, um, could be used by the state or could be used by the defense.

01:30:42.540 And certainly that, that is the perfect example.

01:30:46.280 Um, yeah.

01:30:47.400 So if you have to take odds on what's going to happen, what do you think?

01:30:52.100 I, I think I, wow.

01:30:54.660 I, I, I hate that question.

01:30:56.920 I know.

01:30:57.740 Um, but I think those last four minutes are troubling.

01:31:01.720 Um, I really think the defense is going to have an uphill battle, getting an all out

01:31:07.060 acquittal, um, based on the fact that four minutes went by at the very end, um, where

01:31:12.520 he continued to use force, um, at a time where force probably wasn't one or wasn't

01:31:19.540 wanted to, it's going to be what caused the death of Mr. Floyd.

01:31:22.620 Do you think this is a manslaughter case or a murder case?

01:31:25.960 I would want to know more facts.

01:31:27.900 I watched the opening statements and I learned things that I didn't know that, that, that

01:31:32.760 moved me in both directions.

01:31:34.380 And so I'd want to know more specifically about the causation issues and what ultimately

01:31:39.420 caused the death.

01:31:40.340 There were things that I didn't know in both ways that, that, that moved the needle for

01:31:45.260 me.

01:31:45.560 And I want to hear the medical testimony before I, before I, I make that, that decision.

01:31:51.360 I certainly think that manslaughter is, is, is, you know, is certainly on the table.

01:31:56.960 Um, and I certainly think that murder could be depending on how the evidence comes out.

01:32:01.440 And it could not be, I want to know more.

01:32:03.500 I'm hungry for facts in this case.

01:32:05.800 I want to know more.

01:32:07.460 And I think that we all should.

01:32:09.720 The medical testimony, as much as you want to hear it and I want to hear it is going to

01:32:13.760 be disappointing because you're going to have dueling experts who say exactly the opposite.

01:32:20.140 It's going to be sky is blue, sky is not blue, grass is green, grass is not green.

01:32:25.160 And it's up to the juror, the jury to sit there and assess the credibility of each witness

01:32:29.860 and decide who they believe.

01:32:31.180 But don't expect some learned expert to take the stand and say, this is definitively how

01:32:38.640 he died.

01:32:39.940 And, you know, that's the end of it.

01:32:42.300 There's going to be dueling experts and it's going to be unsatisfactory.

01:32:45.980 Right.

01:32:46.060 But you do have the medical examiner's report, which tends to not necessarily support the

01:32:50.880 states.

01:32:52.000 No, it says he didn't die of asphyxia.

01:32:55.060 It says like it wasn't and that there was there was no bruising to the neck.

01:32:59.360 And I mean, this guy, his report suggests that Chauvin didn't actually hurt George Floyd.

01:33:06.560 That's right.

01:33:06.880 But then you have this weird jury instruction or law in Minnesota, which is the law in most

01:33:12.220 places.

01:33:12.700 And that is the state need not prove that Officer Chauvin actually caused the death, but

01:33:18.100 that his actions were a substantial contributing factor to the death.

01:33:21.380 Right.

01:33:21.540 That's that's what the law is.

01:33:23.180 And I didn't hear the state really say that a lot.

01:33:25.840 And I was actually a little surprised by that, because I think at the end of the day, those

01:33:31.360 words are going to be the grovelment of this case.

01:33:36.880 Substantial contributing factor.

01:33:38.440 And the medical examiner's report where they ruled that the death was a cardiac event that

01:33:44.460 was complicated by him being subdued.

01:33:47.200 And the jury is going to have to take all those words and make sense of it.

01:33:50.780 And I think that's the conversation that's going to be had by the jury ultimately.

01:33:56.040 Yeah.

01:33:56.160 I mean, good luck convincing the jury that Chauvin had nothing to do with this.

01:34:00.560 Right.

01:34:00.700 It's like I agree with you.

01:34:02.980 It's like, you know, the prosecution made the case on Monday.

01:34:06.820 Yes.

01:34:07.380 George Floyd was an addict to suggest like he'd been an addict for a long time.

01:34:11.580 He'd been an addict in the cars on the road, playing basketball, living his life.

01:34:16.680 He never died.

01:34:18.000 It's like to suggest it was pure coincidence.

01:34:20.920 And I guess, you know, the defense will say it wasn't just coincidence.

01:34:23.140 It was the fact that he had so much fentanyl in him.

01:34:25.880 He was popping methamphetamines like they were, you know, fruit.

01:34:30.140 And and even if Chauvin hadn't come along, George Floyd limited his own lifespan in that

01:34:36.140 moment.

01:34:36.420 OK, what I want to ask you one other thing, because we all watch the Freddie Gray trial and

01:34:42.560 it's been one of my it's just been something that really frustrated me that those those

01:34:46.660 six officers were they were exonerated.

01:34:50.100 You know, you had a D.A. in that case making, you know, very public statements that we shouldn't

01:34:55.040 have heard a mayor in that case who seemed to have their thumb on the scale.

01:34:58.900 There was a lot of problems in that case.

01:35:00.280 But still, we hear Freddie Gray's name mentioned as somebody who's on the list of people we're

01:35:04.480 supposed to think was unfairly killed by police, even though that was never proven at

01:35:09.520 all. Anyway, how is your client doing, Lieutenant Rice?

01:35:13.600 Is he back on the force?

01:35:14.980 And how would you say having gone through this has affected him?

01:35:19.580 Sort of caveat that by saying not only was he exonerated in a court of law, but also all

01:35:23.940 six of the officers were exonerated by trial by internal trial board from the police department.

01:35:30.480 And it has, you know, obviously taken a tremendous toll on him.

01:35:34.340 There's no doubt that that there is no doubt that there is a systemic problem in this country

01:35:40.940 with the relationship between community and police officers.

01:35:46.320 And the fact that these six officers from my case were sort of poster children for for

01:35:53.380 that problem weighs very heavily on that case is very different than this case.

01:35:59.540 Um, you know, as we started this conversation by saying very different, um, and it's, it's,

01:36:05.600 it's hard on them being lumped into, you know, very real cases of police misconduct.

01:36:12.120 Um, you know, but yeah, he, my client is back on the force.

01:36:16.200 He's doing his thing and, um, you know, and life goes on, uh, you know, but it's, it's very

01:36:25.740 difficult.

01:36:26.140 There is a real problem in this country.

01:36:28.200 There really is.

01:36:29.300 And I think we all know it.

01:36:30.860 Um, that was not the case, the Freddie Gray case.

01:36:35.120 And this well may be the case.

01:36:37.580 Um, but every case is different.

01:36:40.160 Um, and here we are.

01:36:42.060 Yeah.

01:36:42.620 I mean, even the prosecutor, uh, in this case said, was sure to point out to the jury,

01:36:47.440 this case is not about all police.

01:36:51.020 And I do think that's an important thing to remember.

01:36:53.560 You know, you can, you can back police, you can black, you can back black lives matter,

01:36:58.720 um, and still come to an independent assessment of the facts here.

01:37:03.240 And that in fact is the obligation of the jury.

01:37:05.520 And I also think of those of us who are, you know, in a privileged position to talk about

01:37:11.140 it publicly, you know, not to, not to rush to judgment anyway, to keep an open mind.

01:37:16.300 Um, but if we get to the point of, of guilt or not guilty for that matter, then we have

01:37:22.640 to accept it.

01:37:23.320 We have to respect the jury's decision one way or the other.

01:37:26.220 Um, this is going to be a tough one.

01:37:27.600 It's an emotional one.

01:37:28.600 Thank you, Mike.

01:37:29.580 Thank you, Megan.

01:37:30.180 It's good talking to you.

01:37:34.520 And our thanks to Mark and Arthur, our, our legal dream team, uh, as well as to Mike

01:37:39.100 Belsky, who we'll have on again to talk about this case as it goes on.

01:37:42.020 And I want to tell you, do not forget, go ahead and subscribe to the show right now because

01:37:47.180 we've got Jordan Peterson on Friday.

01:37:51.580 I mean, that's, that's a dream come true.

01:37:54.240 He's agreed to come on and I can't wait for this conversation.

01:37:59.360 So seriously, do subscribe so you don't miss it.

01:38:01.640 If you're subscribed, then we sort of give you the knock on the shoulder, the tap on the

01:38:05.480 shoulder on Friday morning saying, Hey, here it is.

01:38:08.700 Do you want to download or not?

01:38:10.300 And you do.

01:38:11.460 And then, um, send me a review.

01:38:12.640 It's funny because when I was, I was on break, uh, these past couple of weeks, but we put a

01:38:16.600 lot of, uh, interviews in the hopper, which hopefully you guys have been enjoying.

01:38:20.020 And, um, I, I do read all the reviews, as I said, and I've, I read a couple where people

01:38:23.800 are like, I don't believe you that you read the reviews.

01:38:25.880 Well, I do.

01:38:27.040 I'm still reading all of them.

01:38:28.880 And I do love hearing from you.

01:38:30.440 So if you have thoughts on any of the interviews on this case that we've just been discussing,

01:38:34.100 please go to the Apple reviews and let me know what you think.

01:38:38.000 And, uh, you know, sort of weigh in because I do listen to you all.

01:38:41.840 And on this one in particular, the Chauvin trial, I'd, I'd love to hear what you have

01:38:45.940 to say.

01:38:46.340 It's just so fraught, isn't it?

01:38:48.420 It's just makes me feel uncomfortable, but we've got to keep talking.

01:38:51.540 A lot of our subjects make you feel uncomfortable, but the only way through is through.

01:38:56.300 Keep talking.

01:38:57.080 And we'll do that on Friday with Jordan.

01:38:58.440 See you then.

01:39:00.160 Thanks for listening to the Megan Kelly show.

01:39:02.320 No BS, no agenda, and no fear.

01:39:06.940 The Megan Kelly show is a Devil May Care media production in collaboration with Red Seat Ventures. 0.56

01:39:21.540 Thank you.

The Megyn Kelly Show - March 31, 2021

The Derek Chauvin Trial： What You Need To Know, with Arthur Aidala, Mark Eiglarsh, and Michael Belsky ｜ Ep. 83

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