Rewriting Floyd’s Death Next Task for Accused Killer’s Defense

April 13, 2021, 2:38 PM

Defense attorney Eric Nelson must rewrite the narrative of George Floyd’s final moments in jurors’ minds after medical experts for the prosecution detailed his death in exacting detail and fellow police officers turned on the accused killer, Derek Chauvin.

Prosecutors marshaled a wide cross section of Minneapolis employees to paint Chauvin as an outlier who violated police department policies on using force and failed to provide Floyd with required medical aid.

Nelson, starting his case Tuesday after the prosecution rested, is expected to emphasize the chaotic nature of the scene as police sought to subdue Floyd while onlookers shouted at the officers and filmed the arrest, arguing it inhibited their ability to restrain Floyd and provide him with medical aid. In his questions to prosecution witnesses, Nelson also sought to frame Floyd’s death as the result of the fentanyl and methamphetamine found in his system at the time of his death combined with underlying health conditions.

“The defense did score some points in cross-examination by getting some of the experts to acknowledge that Floyd’s pre-existing medical issues along with drug use may have been a contributing cause of breathing issues and could have caused an increase in heart rate,” Julie Rendelman, a New York defense attorney who has been following the trial, said in an email.

Attorneys for the state worked chronologically through the events of May 25, 2020, recreating George Floyd’s death through the eyes of bystanders, paramedics, and fellow officers. Medical experts and trainers who teach police officers how to safely apply force to suspects in custody all described how Chauvin’s actions allegedly caused Floyd’s death by asphyxiation. Even Minneapolis Police Department Chief Medaria Arradondo called Chauvin’s actions excessive and violations of department policy.

Chauvin was filmed kneeling on Floyd’s neck and back for more than nine minutes, sparking nationwide racial justice protests and calls to hold Chauvin and other officers on the scene criminally responsible. Chauvin faces a maximum penalty of 40 years for the second-degree murder charge. The third-degree murder charge carries a penalty of up to 25 years, and manslaughter a maximum sentence of 10 years.

Nelson must sow doubt in jurors’ minds that Chauvin intended to harm Floyd, Rendelman said.

“Keep in mind that even if the jury believes Chauvin’s actions are the cause of George Floyd’s death, there is another hurdle for the prosecution to overcome: proving that Chauvin acted with intent to cause injury under the Murder 2 statute; acted with depraved mind to prove Murder 3, and acted with criminal negligence to prove Manslaughter,” she said. “While the prosecution has done a fine job thus far in providing an avenue to convict on Manslaughter and possibly Murder 3, Murder 2 is a bit tougher due to the intent aspect.”

Prosecutors at the end of their case brought in Floyd’s younger brother to testify Monday. He described his sibling as a community leader, athlete, and devoted family man.

Floyd was “a leader to us in the household,” Philonise Floyd testified, fighting back tears. “He just knew how to make people feel better.”

“He was one of those people in the community. When they had church outside, people would attend church just because he was there,” Philonise Floyd said.

‘I Can’t Breathe’

The defense has yet to bring its own witnesses to the stand. Among them will be medical experts who will counter that there’s no evidence that Floyd’s airflow was restricted from Chauvin kneeling on his neck. Nelson also asked state witnesses questions about whether the drugs found in Floyd’s system also contributed to his death.

Floyd’s ex-girlfriend had testified he developed an opioid addiction after being prescribed pills for a sports injury.

Prosecutors spent more than two weeks building the case that Chauvin’s actions directly caused Floyd’s death.

Floyd’s death was brought on by “a low level of oxygen,” Chicago-based pulmonologist Martin Tobin said during questioning from the state on April 8. Tobin said the combination of handcuffing, Floyd’s position on the ground, and the weight of Chauvin’s knees on Floyd’s neck and back all inhibited his ability to breathe.

Floyd had to “fight against” each of these components “with each breath,” Tobin said.

Lindsey Thomas, a forensic pathologist who examined Floyd’s body, unequivocally blamed the police officers for the death.

“The activities of the law enforcement officers resulted in Mr. Floyd’s death,” she said April 9, labeling Floyd’s death a homicide.

Thomas said reviewing videos of Floyd’s death helped her rule out heart attack or a fentanyl overdose as possible causes of death.

Though Floyd was shouting that he couldn’t breathe, Tobin and other medical experts said his ability to talk doesn’t mean he was breathing normally. Tobin pinpointed on video of Floyd’s death the moment when he lost consciousness, more than three minutes before Chauvin lifted his knee from Floyd’s neck and nearly 10 minutes before Floyd was put on an ambulance ventilator.

Rendelman called Tobin a “compelling witness.”

“He made it clear that even a healthy person in Floyd’s position would have died as a result of Chauvin’s actions, a devastating conclusion for the defense if the jury finds this witness credible,” she said.

In viral bystander footage of Floyd’s death, an officer was heard saying “if you can talk, you can breathe.” Lt. Johnny Mercil, a police instructor on use of force, said during his April 6 testimony that that phrase has been used in Minneapolis police training.

Tobin said that this “mantra” is dangerous because it gives an “enormous false sense of security” because a person can lose consciousness within 8 seconds when oxygen is blocked from the brain. “It doesn’t mean you’ll be breathing five seconds later,” he told the court.

Paramedics also testified that Floyd hadn’t received any medical care prior to their arrival as the state sought to build a case that Chauvin violated his duty to care for someone in his custody.

Cops Turn on Chauvin

Chauvin “betrayed” the Minneapolis police badge when he “used excessive and unreasonable force upon the body of Mr. George Floyd,” special prosecutor Jerry Blackwell said during his opening argument. The prosecution’s case was notable for the number of police officers who testified against Chauvin, including his shift supervisor and the department chief himself.

Paramedics, police officers, a witness versed in martial arts, and an off-duty firefighter on the scene of Floyd’s arrest were called by prosecutors to characterize Chauvin’s use of force on Floyd as excessive and beyond the confines of police procedure.

“Of all the things we do as police officers for the MPD, it is my firm belief the one singular incident we’ll be judged on is use of force,”Arradondo said during the state’s questioning. “While we want to make sure our officers go home at the end of the day, we want to make sure and ensure our community members go home too.”

Michael Brandt, a Minneapolis area defense attorney, said he’s curious whether Nelson will put Chauvin on the stand.

“If I knew that Chauvin was going to be a likable guy and a very credible witness, I think I would put him on the stand,” Brandt said in an email. “That would give him the opportunity to explain why he did what he did and he could look the jurors in the eye and they would hopefully see some empathy from him. The downside though is I’m sure the state is just salivating to cross examine him.”

To contact the reporters on this story: Adam M. Taylor in Washington at ataylor@bgov.com; Ayanna Alexander in Washington at aalexander@bloomberglaw.com; Ian Lopez in Washington at ilopez@bloomberglaw.com

To contact the editor responsible for this story: Andrew Childers at achilders@bloomberglaw.com

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