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tv   At This Hour With Kate Bolduan  CNN  April 19, 2021 8:00am-9:00am PDT

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family that can cause extreme emotional response. you know, recall when officer lane approached the car, george floyd talked about losing his mother. he lost her in 2018. those wounds still right there on the surface. emotion. it could involve a divorce. bad financial news. right? mental illness, mental health issues like drug and alcohol abuse. all of those thins can cause someone to not resist but just not bring themselves to comply at that moment at that time. and this is nothing new. they train for it. they plan for it. they prepare for it. they have a policy on it. right? recognizing person's in crisis. he testified. he testified that they have
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4,000 calls for service for persons in crisis every single year. this is nothing new. they're there on a $20 counterfeiting charge. they train for this. they know about this. now george floyd certainly had struggles. you know that. the state put into evidence of that. courtney ross testified he struggled with opioid addiction. you into you that. and this is nothing new. the difference though on may 25, 2020, the officer wouldn't listen to him. wouldn't look at the signs and recognize the signs of what they had prepared for. and a reasonable officer and the defendant's place with all his training and all of his experience including that 40 hour crisis intervention course and subsequent refresher course, should have known that and should have recognized it. floyd was trying to get into the
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car. he was trying to work up the courage. he said he would count to three. he just couldn't do it. so the defendant arrives on the scene. he surveys the scene. he gets to the car and he slips on his gloves. >> you can't win, bro. >> please. >> you can't win. >> i'm not trying to win. >> get in the car then. >> get in the car! >> he knows. don't do me like that, man. please. >> get in this car, man! >> i am. i'm claustrophobic. >> you're messing with me. i'm claustrophobic, man. put me in the front? please? >> okay.
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okay. i'm not a bad guy, man. i'm nomet a bad guy. >> you're not going to win! >> so they don't listen. they just shove him into the car. into that tiny backseat. you saw the look on his face. you saw the look on george floyd's face when he glanced over into that car. looked like he had seen a monster. looking into that car. clearly this trained officer should have recognized that and understood that moment and that time, what is your goal? we're at this critical thinking m model go? where you take information. you assess the information. you reassess the information. you consider what is the goal? what is the plan? you're there for a $20 counterfeiting charge. allegedly. the chief testified they generally don't put people in custody for that.
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why is it necessary to shove them in the car? he predictable thing to happen, happened, right? he just couldn't be in the back of that car. and so they pull him out. they pull him out. and watch what happens. they pull him out of the car. >> please, man. i can't breathe. >> come on out. >> thank you. thank you. >> get on the ground. >> on the ground. >> okay. >> all right. they get him out of the car. he is handcuffed. he is on his knees. he is not going anywhere. there are four officers there. four officers. and what did george floyd say once they pulled him out of the car? thank you. thank you.
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now a reasonable officer in the defendant's position at that time should have recognized and understood he wasn't trying to escape. he wasn't trying to punch anyone, stab anyone. no. he wasn't trying to do that. the problem was the back of the car. just like george floyd tried to explain over and over. the problem was the back of the car. so if you can give them the benefit of the doubt that they made a bad judgement call and shoved him in the back of the car, at least when he came out in the struck ggle. it was over. he was on his knees saying thank you. done. no need. it could have been over there. what did they do? they took him from this position handcuffed on his knees and pushed him down to the ground. didn't need to. no tnot at all. for what? he's handcuffed. they push him down into what is
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you now know from watching the evidence in this case the prone recovery position. when he's down on the ground, he is pushed. he is literally in the prone recovery position. on the side. that allows the chest to expand and provides room for the lungs to expand and take in air so they can breathe. he's right there. so what happens after? they take him incredibly out of the recovery position and prone him. on the ground. for what? they secure someone in handcuffs and when you do that, you immediately roll them on their
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side. that's the position he was in. proning him was completely unnecessary. and this is where the excessive force begins. this is where the 9:29 starts. because they didn't just lay him prone. they did not do that. they stayed on top of him. with a knee on the neck and a knee on the back and the defendant's weight on mr. floyd pushing down with officer king aiding to the pressure, pushing down, holding his feet, officer lane holding his feet for 9:29. that's when the excessive force began. that's when the countdown began. now you need to sort of pull back and take a look. you learned a lot about policies and procedures. and tactics. you have to pull back and say
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would but for the defendant's actions pushing him down, george floyd have died that day? was it drugs? he just miraculously die of drug overdose in that time? maybe it was the tailpipe? maybe it was his enlarged heart. maybe not. use your common sense. use your common sense. believe your eyes. now i'm going to talk to you a little bit about the law. the judge already instructed you. and it's necessary to go over this a couple of times and you learned you got -- you got to go to medical school here as jurors. there are so many benefits to being a jury. you have to go to medical school. you got that free parking. great lunches. fabulous pay. so now you get a little bit of a free law school education.
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the judge gave you a preview of that. we're going to go through that again. he's going to give you a copy of the instructions. you have them. you good tote keep those. and use those during your jury deliberations. he told you that you know, you have to decide these issues in any order. i'll be making suggestions in the order that you should do things, focus your deliberation ands make the conversation a little easy eshgs a little more focused. but you have the jury instructions as your guide. i think it's important for you to follow the judge's instructions to the letter. the words and definitions that the judge gives you, they mean what the judge says they mean. and know that the state is required to prove these charges beyond a reasonable doubt. proof beyond a reasonable doubt. he read this to you. proof beyond a reasonable doubt
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is ordinary prudent men and women would act upon in their most important affairs. and a reasonable doubt is based on reason and common sense. not a fanciful or capricious doubt or beyond all possibility of doubt. it's as the name implies. you as jurors are not required nor should you leave your common sense at the courthouse steps. as jurors, you must rely on your common sense. that's why you're here. we need you to apply that standard to these facts and to be a judge of the facts and apply those facts, findings of facts to the law. and so proof beyond a reasonable doubt is certainly a high standard. highest standard. its a standard that the state has met here. and the state does not need to prove its case beyond all doubt. it does not need to prove its case beyond what i'll call an
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unreasonable doubt. not required to prove beyond unreasonable doubt. unreasonable doubt is a doubt not based on common sense but based on nonsense. and you're not required to accept nonsense. you're not required to accept the notion that after the defendant kneeling on mr. floyd for 9:29 in the prone position, restrained, pressing down on him. and after that as he was rin pan and suffering that is not force. a witness testified to that. you're not required to believe something that just flies in the face of common sense, to believe that you would have to completely band on all notion of common sense not likely to produce pain. you don't have to accept someone
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who says that. you'd be better off asking a 9-year-old. you're not required to accept the proposition that car did it, that the car killed george floyd. you're not required to accept that. or to consider that it is the bystanders' fault for distracting the defendant. you're not required to believe this amazing coincidence that after this 9:29 prone restraint that at that point in time even though he was walking and talking, even though he was breathing, interacting with people, that he chose that moment to die of heart disease? to die of heart disease? is that common sense or is that nonsense? or that it was a drug overdose?
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you know that george floyd struggled with drug addiction and drug use. you know that. you know he developed -- requires a tolerance. you know what the toxicology report says in terms of the levels. you know what the testimony was about that. he didn't die of a drug overdose. that's not common sense. that's nonsense. believe your eyes. what you saw happen happened. it happened. the defendant pressed down on george floyd. so his lungs does not have the room to breathe. dr. tobin told you that. dr. smock, dr. rich, the experts, the experts testified. you can rely on them. dr. smock, dr. rich, the other doctors. they said like that commercial, right? they know a thing or two because they have seen a thing or two. they know a thing or two. dr. tobin knows a thing or two.
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about how this works. so looking at the charges this is a different layout than you see in the printed jury instructions. they're not intended to replicate the instructions completely. but it's meant to be sort of a guide for you to look at the different elements in a particular context. and so the charge of murder in second degree, manslaughter, second degree, the judge read you, you know, what the law says those things are. and the law breaks down these different charges into things called elements. first element, second element, third element, fourth element. and each of these has to be proved beyond a reasonable doubt by the state in order for the defendant to be guilty of those charges. now those are the element that's are required. those are the only elements that are required. you know, again, like other preconceived notions you may
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have some ideas, you know, from watching tv, about other cases and shows and things you may have some ideas it's too what the law requires. but again, you know, just like, you know how it is lunch time in court. the judge tells you it's lunch time. you know when it is time to go. the judge tells you it's time to go. same thing. you know what the charges are. you know what the elements are because the judge tells you what the elements are. so you need to follow that. talking about murder in the second degree, first, the death of george floyd must be proved. and then it mur be proved that the defendant caused the death of george floyd. and the fact that other causes may have contributed to george floyd's death does not relieve the defendant of any criminal liability. it just does not. and for murder in the second
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degree, the defendant at the time of causing george floyd's death was committing or attempting t attempting to commit assault in the third degree. that is felony assault in minnesota. assault -- showed the defendant assaulted george floyd and intentionally applied unlawful force to mr. floyd without mr. floyd's con sent resulting in bodily harm. state has to show that. state did show that. the assault. and that the destine inflicted substantial bodily harm on george floyd. and that this act took place on or about may 25, 2020 in, hennepin county. as for the first element, george floyd died. that was established. that was established by the emergency room physician. george floyd was pronounced dead at the hennepin county memorial
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hospital on may 25, 2020. so that element is met. and again, you can consider these elements any way you want to consider them. my suggestion is you consider them in the order as listed here, murder two, murder three, manslaughter, and second degree and in order of the elements just because there say lot here. you know, 38 witnesses who testified. this are a lot of exhibits offered. its easy to talk about everything at the same time. it really is. but it will help folk is your deliberations if you look at these different elements in order to have sort of a logical way to focus your deliberations. i encourage you to do that. second element, the defendant caused the death of george floyd. causation? what does that mean here? it means that the defendant's
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act or acts were substantial causal factors, substantial causal factor in causing the death. he is criminally liable for all of the consequences of his actions that naturally occur. including the consequences brought about by intervening causes. the naktfact that other causes have contributed to george floyd's death does not relieve the defendant of criminal liability. you have to find as the nine minutes and 29 of compression on his knee with his knees on his neck and on his back, being held down was a substantial factor in george floyd's death. if there was a superseding cause, then the criminal wouldn't be criminally liable. those are cause that's common after the defendant's acts and alters the natural sequences of events and -- and is the sole
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cause of death. and dwoent have that here. this is the use of force. you talk about use of force, that's been defined by the different witnesses who testified looking at what happened from the point the knee went into the neck and back and unlawful restraint, the assault started. and how long it lasted. that's what george floyd -- that's what killed george floyd. that's why he died. believe your eyes. unreasonable force pinning him to the ground, that's what killed him. this was a homicide. you heard this from the experts. the experts weighed in. the doctor told you that mr.
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floyd died. dr. baker ruled this a homicide and told you the cause and manner of death. the restraint and subdual by law enforcement, what they did killed him. told you that. dr. tobin, remember dr. tobin, told you specifically how it happened. he walked you through that. the affixa. he told you how it happened. dr. tobin explained it wasn't carbon monoxide. no. so you know how george floyd died. and you heard this. but specifically, you know, dr. tobin provided fairly extensive
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detail and was very clear that george floyd died as a result of a low level of oxygen. low level of oxygen caused the brain injury. and a pea arrythmia which caused his heart to stop. that's not a cardiac vent. it's not that his heart disease, that didn't cause him to die. it was the low level of oxygen. it was the as fixa that caused him to die. we know that happened. beknow that happened because they observed during the restraint of 20:24:21, they observed a seizure, the telltale sign of oxygen depravation. even dr. fowler told you that. and after mr. floyd experienced the seizure, he passed out. after his pulse stopped, heart stopped. that cardiopulmonary arrest that, was the result the police
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subduel and restraint and neck compression. we know from dr. tobin george floyd did not die primarily from a cardiac event as has been suggested. now george floyd who is not in perfect health, sure he had narrowed arteries, high blood pressure, no question about that. he was no question he was experiencing stress. even before the officer shoved him on to the sidewalk unnecessarily. but none of this caused george floyd's heart to fail. it did not. his heart failed because the defendant's use of force, the 9:29, okay, that deprived mr. floyd of the oxygen that owe needed, humans need to live. and dr. tobin knows because he is a pulmonologist. he is a lung doctor. he's hay lung doctor. he is also a physiologist.
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he is the only person who testified that is able to calculate lung capacity, lung volume. he can do that. dr. baker couldn't do it. he deferred to the pulmonologist, dr. tobin. dr. fowler couldn't do it. he would defer to a pulmonologist. and dr. tobin who also happens to be a critical care physician, he spent years he treating patients, treating patients in intensive care who experienced respiratory failure. and dr. tobin literally wrote the doobook on the subject. he was able to tell you, right, what this looks like. what he was able to observe. what he was able to observe. it was oxygen depravation, asphyxia. it was asphyxia. because under the conditions that mr. floyd was being restrained, that the defendant put him in, that cut off his oxygen, it would have cut off
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oxygen of someone who was perfectly healthy, anyone. the force ths that were used in that situation involved multiple factors. george floyd was handcuffed. he impaired him. he was placed prone, shoved prone on the squidewalk. knees on his back and neck downward, it was like he was in a vice. he was being squeezed in a vice. and he calculated, right, between chauvin, the defendant, oufr king, pushing down on him approximately 90 pounds of force. and the position and the force kbinld such that it was if it was as if george floyd's left lung was surgically removed. that is how much of a reduction of air capacity there was here.
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to the point that mr. floyd was desperately trying to make space to breathe, pushing his shoulder, pushing his face against the pavement to lift up to give space to breathe. his lung capacity based on dr. tobin's calculation had just been in the prone position, even though you heard some studies from the defense saying, you know, prone position is not dangerous. dr. tobin disagreed. he said that lung capacity dr. tobin's opinion corroborates the police training and what the police have known for 30 years. the danger, the worst thing that can happen is death. and it wasn't just the lungs.
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the pressing up against the neck. remember when you touch that. it reduced the capacity of air flow such that it was as if mr. floyd was breathing through a straw. right? shallow breaths. did not produce enough oxygen. not enough oxygen could get to the lungs. and that's what killed george floyd. here's what didn't. here's what didn't. this wasn't a sudden cardiac arrythmia. right? dr. thomas, dr. smock, dr. tobin agreed, no the a sudden cardiac arrythmia. that's not how this looks. he found there was nothing on his -- in his review, nothing in
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george floyd's heart to suggest that the denl owe rath originat the heart. nothing. over the course of this case you heard a lot of things that didn't happen. hypotheticals that don't apply. right? you know why george floyd died. you know how he died. he is a man is, no one is, right, so you heard about drugs. you heard about drugs in the car. pills in the car. and in the squad car, in his car. you heard questions about is he chewing gum? does he have a pill in his mouth? none of that matters. you know what huis drug level
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was. you know that from the toxicology report f drugs are found in the car, they're not in george floyd's system. there is no poivnt in talking about those. let's talk about what is in his system and the toxicology report. you heard from the doctor, right, in what he testified was that george floyd's fentanyl ratio, that was well below the ratio of people who die from a fentanyl overdose. even below the median. and george floyd's methamphetamine level, that was 94% lower than the group for driving population for driving under the influence. and dr. rich and dr. smock, they treated patients who were under the influence of fentanyl and methamphetamine and they testified, these drugs did not kill george floyd. they didn't. we know that he had a tolerance because he used drugs in the past and the experts all agree,
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the video shows that george floyd did not die the way someone who dies from a fentanyl overdose dies. his breathing, that didn't slow down. right? he didn't fall asleep. dent go into a coma. no. this looked nothing like a fatal fentanyl overdose. dr. tobin, the only doctor in this case who actually calculated george floyd's respiratory rate and the best doctor to do so given his training and given his experience, he stated that the fentanyl in george floyd's system did not depress the less pieration. it didn't. he did not die of drug overdose. that's not how he died. he didn't die of excited delirium. dr. smock testified about excited delirium. told you, explained to you he didn't -- george floyd did not exhibit any of the signs of
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excited delirium, one of which being super human strengths. nonsense. there is no super human strengths. there are no super humans. impervious to pain. nonsense. you heard him. you saw him. was not impervious to pain. suggestion that this tumor is called an incidental tumor, relatively rare, maybe causes headaches. did that cause his death at that particular moment in time at that time at that place after the restraint after the subduel and after the 9:29 that tumor that causes headaches, that killed him? no. that's just a story. and dr. rich specifically testified that he looked in george floyd's medical records and did he not find references
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to headaches. and you heard about carbon monoxide. dr. tobin explained this car that had a cad liddic converter that is outside that was hay hybrid and there was no evidence was even on, right, that that did not kill him. okay? he explained carbon mondayoxide saturation level and oxygen saturation level and based on the calculation of oxygen saturation level at 98%, at most it could have been a 2% carbon monoxide, same as anybody else. same as people walking around talking, breathing. this wasn't carbon monoxide. that is just a story.
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you don't have to be dr. tobin to recognize this. you don't have to be dr. tobin to recognize this. you can see this with your own eyes. you can see what happened. but he couldn't breathe. he said he couldn't breathe. the defendant was on top of him, on his back, on his neck with i had knees pressing down. of course. you saw how his body deflated into the ground. there are multiple moments in time that things could have gone different. and george floyd would have lived. cpr. if he would have left him on the side recovery position in the first place, or just placed him in the side recovery position shortly after the restraint. he wouldn't have died.
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their on force witness said putting somebody in the side recovery position is pretty fast. pretty easy thing to do. not complicated. no. professor said rotate them 90 degrees, quick. could have done that. relieve the pressure. could have done cpr, chest compressions. was supposed to. a policy he was supposed to follow. right? a duty to provide medical aid. you're not just supposed to phone that in. yoo you are supposed to use your training, provide medical aid. even dr. fowler is critical. no one started cpr. so that should have been done. the defendant knew how to do it. he had the training. he knew better. he just didn't do better. george floyd didn't have to die that day. shouldn't have dude that day. but for the fact that the defendant decided no the to get up and not to let up, george floyd died.
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and these actions were a substantial factor in george floyd's death. and these actions, make no mistake, these actions were not policing. these actions were an assault. so as the judge instructed you, for second-degree murder and it's actually very simple, if you find that the defendant committed this third degree assault while committing the assault he caused george floyd's death, the defendant is guilty of murder. that's the way felony murder works in minnesota. so there are two elements. will right? the defendant assaulted george floyd. what does that mean? assault. that is the intentional infliction of bodily harm upon another or the attempt to do so. intentional infliction of bodily harm. that requires proof that de
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defendant intectionally applied harm to the person without consent and the act resulted in bodily harm. intentional. did it on purpose. he did the thing on purpose. bodily harm. physical pain. illness or impairment of a person's physical condition. again to be very, very clear, state does not have to prove that the defendant had an intent to kill george floyd. this was an intentional act. that you see before you. he did this on purpose. and that's clear. this was also unlawful force. officers are only authorized by law to use reasonable for the.
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this is not reasonable force as i'll explain. and george floyd clearly did not consent to having the defendant's knee on top of him for 9:29. when you hear someone gasping for breath, calling for their mother, begging you to get off, what -- how could you think anything else? the state does not have to prove untent. we don't have to show that the destine tended to cause george flowed harm. don't have to show. that you don't have to find that the defendant is trying to cause harm or had the purpose to cause harm to conclude this was an assault. you do not. state doesn't have to show that the destine tenddefrt defendant intended to kill him. the only thing about the defendant's intent that we have to prove is that he applied
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force to george floyd on purpose. this wasn't an accident. and it's pretty simple. you know, if you're doing something that hurts somebody and you know it, then you keep doing it, you're doing it on purpose. >> please. i can't breathe. somebody is telling you they can't breathe and you keep doing it, you're doing it on purpose. what else is going to happen? when you push somebody down on the pavement, everybody knows this. everybody knows what happens when you push somebody against the pavement. right? you learn this pretty early on. we learn this pretty early on.
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assault in the third degree requires that the destfendant inflicted substantial bodily harm. a temporary but substantial loss or impairment of the function of bodily member. or organ. organs. the lungs, the heart, temporary loss of consciousness qualifies, substantial bodily harm. certainly a permanent loss of consciousness. it would constitute substantial bodily harm. you look at this point in the restraint. you see that absence of expression absence of muscle tension, he's unconscious. he lost consciousness. that is substantial bodily harm. that's his name. so when you consider the charge
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of second-degree murder, try to break it down into parts. find an order. the defendant caused george floyd's death. he did. the state proved that beyond a reasonable doubt. and at the time of causing the death, the defendant committed or was attempting an assault in the third degree. and that's been proved beyond a reasonable doubt with those being proved in the venue. second degree felony murder. the defendant is guilty. so going back and talking about murder in the third degree, you can see that there is some elements in common. we discussed the first element,
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the second element and then the fifth element about the venue element, i'll call it, may 25, 2020 in hen pin county. hennepin county. so for third degree murder, the difference for third degree murder is that the defendant had to cause george floyd's death by committing an act eminently dangerous and performed without regard for human life. again, the state is not required for this charge either to show that the destine tended to kill george floyd. he committed an act that was eminently dangerous and performed without regard for human life. it many you prove, the state must prove that the act was highly likely to cause death. that the defendant acted with a
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reckless disregard for human life. that this was -- he was consciously indifferent. consciously inch different to loss of life that his actions could cause. the defendant's act was eminently dangerous to others. it was likely to cause death to mr. floyd. and if common sense in and of itself would not suffice, its dangers of prone restraint of positional asphyxia has been known in the law enforcement community for about 30 years. this is known if common sense wasn't enough. defendant's own use of force witness admits that. and again when we talk about danger, what is the danger, potential danger of positional as fiasphyxia is death. the medical experts that know a thing or, two right? dr. tobin, dr. smock, dr. rich, they agree. the defendant's actions created a high risk of death. and the defendant consciously
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disregarded the loss of life that his actions could cause and did cause. he knew the risks. he knew the risks of as fix yachlt he had other worngs no the just from his training. he had other warnings from people. >> he's not resisting arrest right now, bro. >> he's passed out. >> he's not breathing right now, bro. you think that's cool? you think that's cool though, right? what is wrong with you? what is your badge number, bro? you think that's cool? you think that's cool though, bro? you're a bum, bro. you're a bum for. that you're a bum for that, bro. you get mad. he is not breathing right now. >> what the. [ beep ] >> he can't breathe right nouw, bro. >> it was plain and apparent to everyone that was there what was
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happening. he is going unresponsive. he passed out. he's not talking. what are you doing? we know that the defendant chose not to listen to bystanders, not to these bystanders. but how about to fellow officers on the scene? >> roll him on his side? >> no. >> okay. >> roll him on his side? staying put where we got him. that's what the defendant said. he's staying put where we got him. roll him on his side means roll him into the recovery position. he could have listened to the bystanders. he could have listened to fellow officers. he could have listened to his own training. he knew better. he just didn't do better. he knew kneeling on somebody's neck in addition to the positional asphyxiation is dangerous. anyone can tell you that. a 9-year-old can tell you that. did tell you that.
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conscious indifference? indifference? do you want to know what indifference is? sound like? >> i'm done. my stomach hurts. my neck hurts. everything hurts. get me some water or something. please. please. i can't breathe, officer. excuse me, officer. >> takes a lot of oxygen to talk. >> indifference. picking rocks out of the tire. commenting about the smell of the man's feet who you're
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pressing down, grinding on. as his voice slows, fades, as he tells you you're going to kill me. i can't breathe. my stomach hurts. my neck hurts. ah-ha. everything hurts. takes a lot of oxygen to complain about it. indifference. did the defendant ever listen? ever consider medical attention? knowing the failure to give cpr. not even dr. fowler. this isn't protection. this isn't courage. and it certainly, certainly is not and was not compassion. it was the opposite. of that.
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so back to the instructions. and the elements of third degree murder. when you're deliberating, ask yourselves, did the defendant cause the death of george floyd by an intentional act that was imminently dangerous to others? absolutely. the state proved that. did the defendant add to the mental state consistenting of reckless disregard for human life? a conscious indifference to the loss of life that the dangerous, the eminently dangerous act could cause? yes, he did. and you will find based on that that the state has proved the defendant is guilty of third degree murder as charged.
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so back to the charges. let's talk about manslaughter in the second degree. again, you can see that there is some elements in common. the first, the third is in common with the other charges. so what's different about manslaughter in the second degree? is that the defendant caused the death of george floyd by culpable negligence. culpable negligence. where created an unreasonable risk and consciously took a chance of causing death or great bodily harm. and again, you do not need to prove, the state does not need to prove that he intended to -- that he intended to kill george floyd. culpable negligence, intentional conduct. the defendant may not have even intended to be harmful but that
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an ordinary and prudent reasonably prudent person would recognize is involving a strong probability of injuries to others. you can look for yourself and you can see exactly what was happening. the bystanders who were at the scene looked for themselves and it was plain to them. they took video. you saw it. it was plain to you. strong probability of injury and with the defendant, his specialized knowledge about the dangers of positional asphyxia and the common sense that if you put your knee on somebody's neck, there is a strong probability of injury, he knew that too. permanent or protracted loss or impairment to the function of a bodily member or organ. the heart. the lungs. the loss of consciousness.
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would an ordinary and reasonably prudent person know that this is dangerous? everybody who watched knew it was dangerous. a 9-year-old saw it was dangerous. the defendant knew exactly what he was doing because he was right on top. he was right on top of him. but his negligence goes beyond his intentional assault of mr. floyd. his negligence includes his failure to act in your custody means in your care. in your custody means in your care. there is a duty to provide medical assistance. that duty includes not only calling the ambulance, it means that you have to use your knowledge, your training as a first responder. you're required to perform cpr.
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it's a requirement. he failed to do it. he had the training. you have seen the training records, exhibit 119. take a look at all the in services, all of the hours. he knew what to do. he just didn't do it. he knew better. he didn't do better. harm, he w let genevieve han son the off duty firefighter do it. he didn't. he had the knowledge, he had the tools, he just ignored it. so when you consider this charge that the defendant caused george floyd's death by culpable negligence, where he took an unreasonable risk and consciously took a chance of causing death or great bodily harm. you will find that element has been proved beyond a reasonable doubt. he is guilty of second-degree
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manslaughter, guilty of all three charges. after all of this, you have another question you have to address, after seeing all of this, finding the assault, finding the murder was committed, the manslaughter was committed, you have another thing to consider and that is, was this just okay? was this fine? is this okay? because the defendant was a police officer? was this an authorized use of force? was it justified? was it justified? >> it was not. let's look at the instruction of the kind and degree force a police officer may lawfully use in executing his duties it's limited by what a reasonable police officer in the same situation would believe to be necessary and force beyond that is just not reasonable.
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if you look at the facts that a reasonable police officer in the same situation would have known at the precise moment that the officer acted with force. looking at all of the totality of the facts and circumstances to see whether these actions, the defendant's actions were objectively reasonable. was this objectively reasonable? no. you saw the instruction be that the law does not provide an excuse for police abuse, it does not. let's start with the basic of premises. that's very important. that restraining george floyd in this manner on the ground, prone, handcuffed, knee on the neck, knee on the back, body weight on top of him, start with the premise that that, in fact, was a use of force. the defense called a witness who
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actually testified that that was not a use of force because that is not likely to produce pain. no. no. not true. likely to produce pain actually produced pain. you know, the problem with terms like super human, super human strength, you forget those people don't exist. humans feel pain. human beings feel pain, human beings need to breathe. don't accept any notion to the contrary. you need to reject that testimony. you need to reject it. let's discuss the standard what would a reasonable police officer do? what would a reasonable police officer do? you don't look at this from george floyd's perspective. you don't look at it from the bystanders perspective, what a
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reasonable bystander do. under the law you don't look at it from the defendant's perspective either. you look at it from the perspective of a reasonable officer and the evidence in this case has shown over and over that the defendant is not that officer. because he did not act as a reasonable officer would. remember charles mcmillian? well, the defendant explained his actions, he explained the basis of his actions to charles mcmillian. here's what he said. >> yeah. i thought he didn't get in the car. >> probably on something. >> that was his justification for using this level of force. he's a big guy, he's a sizable guy, he might be on something, we have to control him. control is the restraint.
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that's the force. his two justifications were that george floyd was big and that he might be on something. well, you know the standards, you've heard the standards many times, you know the difference between a risk and a threat. officers are authorized to use force to respond to a threat. they're not authorized to use force to respond to a risk. anybody poses a potential risk, big, small, in between. everybody is a risk. not everybody is a threat. being large, the act of being large, it's not a crime. it's not a risk -- i'm sorry it's not a threat. it's merely a risk. being on something, being on something, it's not a threat. it may be a risk. but it's not a threat.
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and force is not authorized against someone merely because they're on something. and when questioned, their force expert witness, conceded that the combination of the two being large and being on something is not a justification for the use of force. it just isn't. that's not what they get to do. right. so the defendant's entire basis, his explanation to charles mcmillian, at the time, at the scene, right afterwards, after he got up off of mr. floyd tossed him on the gurney and walked away like it was nothing, that was his explanation. it's not good enough. that's not procedure. that's not the use of force policy. it's not following the rules. we talked about things that
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might have happened, could have happened, potentials. hypotheticals. we talked about a lot of stuff that didn't happen. we need to focus on what did happen, what did happen. george floyd was not a threat. he never was. he wasn't resisting. he just wasn't able to comply. they should have recognized that. they do it all the time. they had him handcuffed and they had plenty of resources, four officers, a fifth one off in the distance. he was handcuffed behind his back and he wasn't going anywhere. he wasn't doing anything. he didn't need to be put in the prone position to facilitate hand kufg. the defendant was on top of him, stayed on top of him, grinding his knees into him, pressing down on him, continuing to twist his arm twist his wrist so it would buck up against the hand
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cuff, a pain compliance technique is simply the infliction of pain, not a reasonable use of force. that's not authorized by the minneapolis police department. kneeling on top of someone on their neck and back, effectively they were using a maximum restraint technique. remember the rip hobble. they considered using it. thought about using it. decided not to. they didn't need to. he wasn't doing anything that warranted it. the policy authorizes the use of the rip hobble. they didn't do that. the policy about applying the rip hobble you have to put the person immediately in the side recovery position, you know, why didn't they do that? the conduct didn't warrant it. they knew it.
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they didn't want to have to get a sergeant down there to have to do a force review. it's memorial day. they talked about that. they just held him in this dangerous position against policy. a reasonable officer wouldn't do that. a reasonable officer follows the rules. a reasonable officer follows the training. the force that carries a risk of death is deadly force and you recall the mpd defense tactics and control guide, like deadly force is just not authorized in this situation. no force. when someone is passed out on the ground unresponsive. no. you really can't even claim that mr. floyd was engaged in passive resistance at this point. remember charles mcmillian kept saying get up and get it in the car. and george floyd said, i will.
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i can't. he doesn't even have the opportunity. he's saying he will get up and get in the car. he isn't given the opportunity to do that. that's not resistance. that's compliance. at least an attempt to comply. force must be reasonable. it must be reasonable at the point it starts, at the point it ends and all points in between officers are required to reassess the situation, reevaluation the situation, to take in the information and react to it. the defendant didn't do it. the defense has made the argument that the crowd justified the defendant's use of force, the blame should fall on the bystanders for displaying concern over a man's life. what? this was a distraction, there was some concern, the defendant doesn't appear too concerned. it wasn'


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