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tv   The Faulkner Focus  FOX News  April 19, 2021 8:00am-9:00am PDT

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emotional response. you recall when officer lane approached the car, george floyd talked about losing his mother. he had lost her in 2018. those wounds still right there on the surface. emotion. it could involve a divorce, finding bad financial news, right? mental illness, mental health issues like drug and alcohol abuse. all of those things can cause someone to not resist but just not be able to bring themselves to comply at that moment at that time. this is nothing new. they train for it, they plan for it, they prepare for it. they have a policy on it, right? recognizing persons in crisis. you remember the chief took the stand, he testified that they have 4,000 calls for service
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for persons in crisis every single year. this is nothing new. they are there on a $20 counterfeiting charge. they train for this. they know about this. now, george floyd certainly had his struggles. you know that. the state put in evidence of that. courtney ross testified he struggled with an opioid addiction. you knew that. this is nothing new. the difference, though, on may 25, 2020 the officers just wouldn't listen to him, wouldn't look at the signs, recognize the signs of what they had prepared for and a reasonable officer in the defendant's place with all his training and all his experience, including that 40-hour crisis intervention course and subsequent refresher course should have known and recognized that. floyd was trying to get into the car and work up the courage.
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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 saunters up to the car and he slips on his gloves. [video playing] >> i'm not going anywhere. >> you can't win. don't get in the car. >> he know it. he knows it. you have to hear me. don't do me like that, please. >> i'm claustrophobic. >> start working with me. >> i'm claustrophobic. can i get in the front? >> get in the car. >> okay? >> i'm not getting in the car.
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>> they don't listen. they just shove him into the car into the tiny back seat. 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 at that moment at that time what is your goal? where did this critical thinking model go? where did that go? where you take in information, you assess the information and reassess the information and consider what's the goal, what's the plan? you are there for a $20 counterfeiting charge allegedly. the chief testified they generally don't put people in custody for that. why is it necessary to shove him in the car? they made the judgment call and decided to shove him in the car.
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the predictable thing to happen happened, right? he just couldn't be in the back of that car. so they pull him out. they pull him out. watch what happens? they pull him out of the car. [video playing] >> come on out. >> thank you, thank you, thank you. >> on the ground, on the ground. >> all right, folks. 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. what did george floyd say once they pulled him out of the car? thank you. thank you. now, a reasonable officer in the defendant's position at
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that time should have recognized and understood he wasn't trying to escape. he wasn't trying to punch anyone or stab anyone. 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 judgment call and shoved him in the back of the car at least when he came out in the struggle it was over. he was on his knees. he was saying thank you, done, no need. it could have been over there. but what did they do? they took him from this position, handcuffed on his knees, they pushed him down onto the ground. didn't need to. not at all. for what? he is handcuffed. they pushed him down into what
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is you now know from watching the evidence in this case, the prone recovery position. when he is down on the ground he is initially 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 he can breathe. that is a step that protects against the known danger of positional asphyxia. then they have him there. he is right there. so then what happens after? they take him incredibly out of the recovery position and prone him on the ground for what? a prone position is a transitory position, it is a position you use to secure someone in handcuffs and when you are done with that you immediately roll them on their side. that's the position he was in.
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proneing him was completely unnecessary and this is where the excessive force begins. this is where the 9 minutes and 29 seconds start 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 adding to the pressure, pushing down, holding his feet. officer lane holding his feet for 9 minutes and 29 seconds. that's when the excessive force began. that's when the countdown began. now, you need to pull back and take a look. you've 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, would george floyd have died that day? the drugs, he would miraculously die of a drug overdose in that time? maybe it was the tailpipe, enlarged heart. maybe not. use your common sense. use your common sense. believe your eyes, what you saw, you saw. now, i want to talk to you a little bit about the law. the judge has already instructed you and it's necessary to go over this a couple of times. you have learned, you have to go to medical school here. benefits of being a jury. you got to go to medical school, you got the free parking, great lunches, fabulous pay. now you get a free law school education, the judge gave you a
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preview of that. we'll go through that again. he is going to give you a copy of those instructions. you have them. you get to keep those and use those during your jury deliberations. he told you that you don't have to decide these issues in any order. you can do it the way you all see fit. i will be making some suggestions as to the order i think you should do things like focus your deliberations and just make the conversation a little easier, 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 the definitions 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 proof that ordinary men and women would act upon in their normal affairs. reasonable doubt is based on reason or common sense or beyond all possibility of doubt. reasonable doubt as the name implies. is it a doubt based on reason and common sense. you jurors are not required to leave your common sense at the courthouse steps. as jurors you must rely on your common sense. that's why you are here. we need you to apply that standard to these facts and to be a judge of the facts and apply those findings of fact to the law. proof beyond a reasonable doubt is a highest standard. the standard the state has met here. and the state does not need to prove its case beyond all doubt or it does not need to prove its case what i'll call an
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unreasonable doubt. not required to prove beyond an unreasonable doubt. that would be a doubt not based on common sense but based on nonsense. and are you not required to accept nonsense. you are not required to accept the notion that after the defendant kneeling on mr. floyd for 9 minutes and 29 seconds in the dangerous prone position, handcuffed, restrained, pressing down on him, that after that as he was writhing in pain and suffering that that's not even a use of force. because it is not likely to produce pain. the witness testified to that. you are not required to believe something that just flies in the face of common sense to believe that you would have to completely abandon all notion of common sense not likely to produce pain. you don't have to accept someone who says that.
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you would be better off asking the 9-year-old. you're not required to accept the proposition that the car did it. that the car killed george floyd. you are not required to accept that or to consider that it is the bystander's fault for distracting the defendant. you are not required to believe this amazing coincidence that after this 9 minute and 29 second 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 had developed -- that requires a tolerance. you know what a toxicology report says in terms of the levels and you know what the testimony was about that. 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 did not have the room to breathe. dr. tobin told you that. dr. smock, dr. rich, the experts. the experts who testified, you can rely on them. dr. smock, dr. rich, dr. ice en schmidt. they said like that commercial, right? they know a thing or two because they've seen a thing or two. and 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 and this is a little bit of a different lay out than you see in your printed jury instructions. they are not intended to replicate the instructions completely but it is 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 the second degree and murder in the third degree manslaughter in the second degree the judge read you what the law says those things are. and the law breaks down these different charges into things called elements. first element, second element and third and fourth. each has to be proved beyond a reasonable doubt by the state in order for the defendant to be guilty of those charges. those are the elements that are required and the only elements that are required. again, like other pre-conceived notions you may have some ideas
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from watching tv, about other cases and shows and things, you may have some other ideas as to what the law requires. but again just like how it is lunch time in court and the judge tells you it is lunch time, you though when it's time to go, the judge says it's time to go, same thing. you know what the charges and elements are. you naoed to follow that. talking about murder in the second degree, first the death of george floyd must be proved. and then it must have 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 degree that the defendant at the time of causing george
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floyd's death was committing or attempting to commit assault in the third degree. that's a felony level assault under the laws of minnesota. and assault showed the defendant assaulted george floyd that he intentionally applied force resulting in bodily harm. the state did show that, the assault. and that the defendant inflicted substantial bodily harm on george floyd and that this act took place on may 25, 2020 in hennepin county. so as to 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
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memorial hospital on may 25, 2020. that element is there. and again you can consider these elements any way you want to consider them. my suggestion is that you consider them in the order as listed here, murder 2, murder 3, manslaughter in the second degree and in order of the elements and there is a lot here. 38 witnesses who testified. a lot of exhibits that were offered and it is easy to talk about everything at the same time. it really is. but it will help focus 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. you can do it any way you want. second element that the defendant causeded the death of george floyd. causation, what does that mean? what does causation means here? it means the defendant's act or
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acts were substantialal causal factor in causing the death. he is criminally liable for all of the consequences of his actions that naturally occur. including those consequences brought about by intervening causes. the fact that other causes may have contributed to george floyd's death does not relieve the defendant of criminal liability. you have to find 9 minutes and 29 seconds 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. now, if there was a superseding cause, then the defendant wouldn't be criminally liable. superseding causes come after the defendant's acts and alters the natural sequences of events and is the sole cause of death.
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we don't have that here. we know how george floyd died. this is the use of force. we talk about use of force, that's been defined by the different witnesses who have testified looking at what happened from the point, the knee went to the neck and back. lawful restraint, the assault started and how long it lasted, 9:29. that's what killed george floyd and that's why he died. believe your eyes that unreasonable force pinning him to the ground, that's what killed him. this was a homicide. you heard this from forensic pathologists, the experts. you've heard this. the experts have weighed in and
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dr. langenfield told you that. the cause and manner of death the restraint by law enforcement killed him. he told you that. dr. tobin, remember dr. tobin, he told you specifically how it happened. he walked you through the asphyxia. he told you how it happened. and the other doctors who testified, dr. smock, dr. rich, they told you how it didn't happen. it wasn't a sudden cardiac event. it wasn't a heart attack or drug overdose. it wasn't any of those things. dr. tobin came back and explained it wasn't carbon monoxide. no. you know how george floyd died. and you heard this. but specifically dr. tobin provided fairly extensive detail and was very clear that
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george floyd died as a result of a low level of oxygen. low level of oxygen caused a brain injury and an arrhythmia that caused his heart to stop. it is not a cardiac event. the heart disease didn't cause him to die. it was the low level of oxygen. it was the asphyxia that caused him to die. and we know that happened. we know that happened because they observed during the restraint at 20:24:21. they observed a seizure, a telltale sign of oxygen deprivation. dr. tobin told you that and even dr. fowler told you that. after mr. floyd experienced a seizure, he passed out. after his pulse and start stopped. that cardiopulmonary arrest was the result of the police subdueal and restraint and neck
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compression. we know from dr. tobin george floyd did not die primarily from a cardiac event as has been suggested. now, george floyd was not in perfect health. he had narrowed arteries, high blood pressure, no question about that. no question he was experiencing stress. even before the officers shoved him onto the sidewalk unnecessarily, gratuitously and disproportionately. it did not cause his heart to fail. his heart failed because of the defendant's use of force 9:29 that deprived mr. floyd the oxygen that humans need to live. and dr. tobin knows because he is a pull monologist. he is a lung doctor. he is a lung dr. he was the
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only person able to calculate lung capacity and lung volume. he could do that. dr. baker didn't do it. he referred to the pull monologist dr. tobin. dr. fowler couldn't do it. he would refer to a pull monologist. dr. tobin, a critical care position who spent years treating patients in intensive care who is experiencing respiratory failure and wrote the book on the subject and was able to tell you what this looks like. what he was able to observe. what he was able to observe was oxygen deprivation and asphyxia, 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 forces that were used in this situation, right, involved multiple factors. george floyd was handcuffed. he had impaired chest movements and placed prone, shoved prone on a sidewalk. the knee is pushing on his neck and back downward. the pavement, the force of the pavement being unyielding, it was like he was in a vice. that he was being squeezed in a vice and he calculated, right, between chauvin, the defendant, officer king pushing down on him approximately 90 pounds of force. and the position and the force combined such that it was if it -- it was as if george floyd's left lung had been surgically removed. that's 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 just being in the prone position even though you heard some studies from the defense saying the prone position isn't dangerous, dr. tobin disagreed. he said that the lung capacity was reduced by 24% just by the prone position. 43% when you consider the additional pressure. dr. tobin's opinion corroborates the police training and what the police have known for 30 years. there is a danger in the prone position. the danger is positional asphyxia, the worst thing that can happen there is death. and it wasn't just the lungs. the pressing up against the
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neck. remember when you touch that it reduced the capacity of airflow such as if mr. floyd was breathing through a straw. his shallow breaths did not produce enough oxygen. not enough oxygen could get to the lungs and that's what killed george floyd. here is what didn't, right? this wasn't a sudden cardiac arrhythmia. dr. smoke, dr. rich and dr. tobin agreed not a sudden cardiac arrhythmia. that's now how this looks. dr. baker, no medical evidence of a heart attack. we heard from dr. rich. he actually treats people who have heart attacks and he found there was nothing on -- in his
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review nothing in george floyd's heart to suggest that the death originated from the heart, nothing. you know, over the course of this case you heard a lot of things that didn't happen and hypotheticals that don't apply. you know why george floyd died. you know how he died. you heard a lot about drugs. you heard about his struggle with addiction. there are some things george floyd was obviously not a perfect man. who is? no one is. so you heard about drugs, you heard about drugs in the car, some pills in the car. 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. because you know what his level, the drug level was. you know that from the toxicology report. if drugs are found in the car,
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they're not in george floyd's system. there is no point in talking about those. let's talk about what was in his system. the toxicology report. you heard from the doctor, and what he testified was that george floyd's fentanyl the -- it was well below the ratio of people who die from a fentanyl overdose. it was below the median. george floyd's methamphetamine level was 94% lower than the group for driving population for driving under the influence. and dr. rich and dr. smock, they treated patients who are under the influence of both fentanyl and methamphetamine. they said these drugs didn't kill him. he had a tolerance because they
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used drugs in the past and the video showed george floyd did not die the way someone dies from the fentanyl overdose dies. his breathing didn't slow down or fall asleep or go into a coma. it looked nothing like a fatal fentanyl overdoes. dr. tobin, the doctor who calculated his respiratory rate, the best doctor to do so given his training and experience, he stated that the fentanyl in george floyd's system did not depress his respiration, it didn't. he did not die of a drug overdose. that's not how he died. he didn't die of excited delirium. dr. smock explained to you george floyd did not exhibit any of those signs.
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one of which being super human strength. nonsense. there is no super human strengths. no super human strengths. no super humans. impervious to pain. nonsense. you heard him and you saw him. he was no impervious to pain. that's nonsense. parra gangly ohm yeah, suggesting the tumor called an incidental tumor relatively rare maybe causes headaches, that that caused his death at that particular moment in time at that time, at that ace after the restraint, after the subdueal and after the 9:29, a tumor that causes headaches, that killed him? no. that's just a story. dr. rich specifically testified that he looked in george floyd's medical records and he did not find references to
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headaches and you heard about carbon monoxide. the car killed him. dr. tobin came back and explained this car, which had a catalytic converter, that was outside, that was a hybrid and there is no evidence was even on, that that did not kill him. he explained carbon monoxide -- oxygen saturation level and based on his calculation of oxygen saturation level at 98%, at most it could have been a 2% carbon monoxide same as anybody else people walking around talking an breathing. it wasn't carbon monoxide. that's just a story and it is simply wrong. you don't have to be dr. tobin
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to recognize this. it is probably nice to be dr. tobin but you don't have to be dr. tobin to recognize this. you can see this with your own eyes and you can see what happened, that he couldn't breathe. he said he couldn't breathe. defendant was on top of him on his back, on his neck with his knees pressing down. of course. you saw how his body just sort of deflated into the ground past the point of consciousness. there were multiple moments in time that things could have gone different and george floyd would have lived. cpr, left him in the side recovery position in the first place or put him there. he wouldn't have died. their own force witness testified putting somebody in a
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side recovery position is pretty fast, pretty easy thing to do. not complicated. professor said you just rotate them 90 degrees quick. you could have done that. relieved the pressure. could have done cpr. chest compressions. was supposed to. had a policy. had a policy he was supposed to follow. a duty to provide medical aid. are you not just supposed to phone that in. you are supposed to use your training and provide medical aid. even dr. fowler was critical no one started cpr. he said 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 died that day. but for the fact that the defendant decided not 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 is 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. there are two elements. the defendant assaulted george floyd. what does that mean? assault is the intentional infliction of bodily harm upon another or the attempt to do so. intentional infliction of bod lie harm requires proof the
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defendant intentionally applied unlawful force to another person without that person's consent and then 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. so 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. that's clear. he didn't again trip and fall and find himself there. this was also unlawful force. officers are only authorized by law to use reasonable force.
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this was not reasonable force as i will explain. 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? that he did not consent to this. now the state does not have to prove -- we don't have to prove intent or show the defendant intended to cause george floyd harm. we don't have to show that. we don't need to find the defendant was trying to cause harm or the purpose to cause harm to conclude that this was an assault. you do not. the state doesn't have to show the defendant intended to violate the law. we don't have to show that. we don't have to show that the defendant intended to kill him. the only thing that about 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 is pretty simple. if you are doing something that hurts somebody and you know it and you keep doing it, you are doing it on purpose. >> i can't breathe. i can't breathe. >> somebody is telling you they can't breathe and you keep doing it, you are 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. you learn this pretty early on. assault in the third degree
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requires that the defendant inflicted substantial bodily harm on george floyd. substantial bodily harm meaning a temporary but substantial loss or impairment of a function of a bodily member or organ. organs, the lungs, the heart. temporary loss of consciousness qualifies, as substantial badly harm. a permanent loss of consciousness would constitute it. look at this point in the restraint and you see the absence of expression, the absence of muscle tension. he is unconscious. he has lost consciousness. that's substantial bodily harm. he did that. that's his knee. so when you consider the charge
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of second degree murder, try to break it down into parts, define an order. 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. 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. there are some differences. we've already discussed the first element of the death of george floyd, the substantial causal factor, the seckelment and then the fifth element
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about the venue element, may 25, 2020 in 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 that was imminently dangerous and performed without regard for human life. and again the state is not required for this charge either to show that the defendant intended to kill george floyd. that he committed an act that was imminently dangerous and performed without regard for human life. it must prove -- the state must prove that the act was highly likely to cause death. that the defendant acted with a reckless disregard for human life. that this was -- he was
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consciously indifferent. constitutionally indifferent to loss of life that his actions could cause. the defendant's act was imminently dangerous to others, likely to cause death to mr. floyd. as if common sense in and of itself would not suffice, the dangers of prone restraint 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? what is the potential danger of intentional asphyxia is death. all the doctors agreed. the defendant's actions created a high risk of death. and the defendant consciously disregarded the loss of life
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that his actions could cause and did cause. he knew the risks of positional asphyxia due to this position. everybody in law enforcement knows that. he had other warnings not just from his trainings. but he had other warnings from people. >> he isn't resisting a rest now. >> he is passed out. >> he isn't breathing right now. you think that's cool? what's your badge number, bro. you think that's cool right now? you think that's cool though, bro? you are a bum for that. you are a bum for that, bro. you just came here. he stopped breathing right now. >> it was plain and apparent will everyone who was there what was happening.
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going unresponsive. he is passed out. he is not talking. what are you doing? now we know that the defendant chose not to listen to bystanders, not to these bystanders. how about to fellow officers on the scene? >> roll him on his side? >> roll him on his side? staying put where we got him that's what the defendant said. he is staying put where we got him. roll him on his side means roll him into the side recovery position. he could have listened to the bystanders and fellow officers and his own training. he knew better, he just didn't do better. he knew that kneeling on somebody's neck in addition to the positional asphyxia, just the pressure is dangerous. anyone can tell you that. a 9-year-old can tell you that and did tell you that.
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conscious indifference. indifference. do you want to know what indifference is? what it sounds like? [video playing] >> please, please, i can't breathe, officer. >> stop talking. >> [inaudible] >> indifference. leisurely picking rocks out of the tire. commenting about the smell of a man's feet who you are pressing
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down and grinding on as his voice slows, fades, as he tells you you are going to kill me, i can't breathe. my stomach hurts, uh-huh. my neck hurts, uh-huh. everything hurts. it takes a lot of oxygen to complain about it. indifference. did the defendant ever listen, ever consider medical attention? no one defunded that decision, the failure to give cpr, not even dr. fowler. this isn't protection. this isn't courage. and it is 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 for third degree murder. when you are 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 act with a mental state consisting of reckless disregard for human life, a conscious indifference to the loss of life that the dangers, the imminently 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 there are some elements in common. the first, the third is in common with the charges. what difference is the defendant caused the death of george floyd by culpable negligence. culpable negligence where it 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 kill george floyd. culpable negligence intentional conduct that the defendant may not have even intended to be harmful but that an ordinary
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and prudent reasonably prudent person would recognize as involving a strong probability of injury 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 and his specialized knowledge about the dangers of positional asphyxia and common sense if you putier knee on somebody's neck there is a strong probability of injury. he knew that, too. a high probability of death. permanent or protracted loss or impairment of a bodily member or organ. the heart, the lungs, the loss
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of consciousness. 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 for somebody else, it means you have to use your knowledge, your training as a first responder. you are required to perform cpr. it's a requirement. he failed to do it. he had the training.
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he knew how to do it. you've seen his training records, exhibit 119. look at all of the in-services and all of the hours. he knew what to do. he just didn't do it. he knew better. he didn't do better. he wouldn't even let genevieve hanson the off duty firefighter do it. he wasn't going to do it himself. you could let somebody else do it, but 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 and took a chance of causing death or great bodily harm you will find that element has been proved beyond a reasonable doubt that he is guilty of second degree manslaughter. guilty of all three charges.
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so 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 ex ecuting his duties. it -- and force beyond that is not reasonable, what would be necessary. when you look at the facts as a
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reasonable police officer in the same situation would have known at the precise moment that the officer acted with force, right? you are looking at all of the totality of the facts and circumstances to see whether this defendant's actions were objectionably reasonable. was this objectively reasonable? no, you just saw the instruction the law does not provide an excuse for police abuse. it does not. let's start with the most basic of premises. that's very important. that restraining george floyd in this manner on the ground, prone, handcuffed, knee on the neck and the back and body weight on top of him. starts with the premise that that in fact was a use of force. the defense called a witness
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who actually testified that that was not a use of force because that was 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 that 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, okay? it's not what a reasonable victim would do. you don't look at it from the
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bystander's perspective. you don't look at it from the defendant's perspective, either. you look at it from the prospective of a reasonable officer. 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 mcmillan? well, the defendant explained his actions. he explained the basis of his actions to charles mcmillan. you recall that? here is what he said. >> he is probably on something >> that was his justification for using this that was his justification for using this level of force. he is a big guy, a sizable guy, he has to be on something and we
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have to control him. his two justifications, george floyd was big and that he might be on something. you know the standards, you've heard of 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 are not authorized to use force to respond to risk. anybody poses a potential risk. big, small, in between, everybody is a risk. not everybody is a threat. the act of being large is not a crime. it's not a risk, 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 not a threat.
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force is not authorized against someone, and when questioned, their expert conceded that the combination of the two, being large and being on something is not justification for use of force, it just isn't. that's not what they get to do. the defendant's entire basis, his explanation to charles mcmillan at the time, at the scene, 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. it's not procedure, is not the use of force, it's not following protocols.
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we talked a lot about things that might've happened, we talked about a lot of stuff that didn't happen. you 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, they had plenty of resources, four officers, a fifth one off in the distance, it he wasn't going anywhere, he wasn't doing anything, didn't need to be put into prone position, that's a temporary position to facilitate handcuffing, the defendant was on top of him, grinding his knees into him, pressing down on him, continuing to twist his arm and twist his wrists, buck up against handcuffs, a pain
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compliance technique, simply the infliction of pain, not a reasonable use of force. and that's not authorized by the minneapolis police department, kneeling on top of someone on their neck and their back effectively using a maximal restraint technique, they considered using it, thought about using it, decided not to, they didn't need to. if you are going to restrain someone like that, the policy off authorizes the use of the rip hovel coming up to put the person immediately in the recovery position, why didn't they do that? the conduct didn't warrant it, they knew it, they didn't want to have to get a sergeant out there to do a forced review, it
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was memorial day. you heard that comment. they just held him in this dangerous position against policy. a reasonable officer wouldn't do that, a reasonable officer follows the rules, reasonable officer follows the training, the force that carries the risk of death is deadly force and you recall the mpd defensive tactics and control guide, deadly for force is just not authorized in a situation. when someone is passed out on the ground, unresponsive, no. you really can't even claim that mr. floyd was engaged in passive resistance, charles mcmillan kept saying get up and get in the car. get up and get in the car and george floyd said "i will." i can't."
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he doesn't even have the opportunity, he saying he will get up and get in the car, he isn't given the opportunity to do that. that is at least an attempt to comply. force 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 and reevaluate the situation, to take in the information and react. the defendant didn't do it. defenses made the argument that the crowd justify the defendant's use of force that the blame should fall on the bystanders. for displaying concern over a man's life? what? this was a distraction and there was some concern that the defendant doesn't appear to concerned. it wasn't the bystander's


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