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tv   The Five  FOX News  April 19, 2021 2:00pm-3:01pm PDT

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he had too big of a heart, the truth is derek chopin's heart was too small. >> thank you very much indeed, that does it for "your world with neil cavuto." neil will be back tomorrow. meanwhile starts right now. ♪ ♪ >> dana: hello, i am dana perino along with juan williams, katie pavlich, jesse watters, and pete -- it is 5:00 in new york city and this is "the five." ♪ ♪ so that was the judge giving the jury final instructions before they begin deliberations in the derek's open trial. we are also awaiting a news conference for minnesota's governor and other officials giving a safety update a head of. american cities are on edge and thousands of national guard troops are deployed in the minneapolis area, businesses there are boarding up their windows in the courthouse is surrounded by concrete barriers
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and razor wire. republicans tearing into democratic congresswoman maxine waters accusing her of inflaming the situation after joining a protest in minnesota and saying this. >> i would like to see the bill in congress passed. but i know that the right wing, the racists are opposed to it, and i don't know what is going to happen? i don't know whether it is first-degree. >> you have to stay on the street. >> we need to get more active, more confrontational. we need to make sure that they know that we mean business. >> dana: you will get our commentary on all of this in a minute, we will go to the courtroom, there is some additional activity after the judge gave the jury deliberation instructions. >> there are lots of laws in this coming your honor, and these comments from -- repeated
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comments go for a prosecutor told misconduct. >> i said when blackwell used "story" it did not seem to be belittling, however that continued use of it i did sustain the ultimate objection that counsel made to the use of the word story and instructed the jury to disregard. also shading the truth that i sustain the objection and instructed the jury to disregard. i'm not making any findings that it was the prosecutorial toll total misconduct of that was a mistrial, i think it was adequately said to disregard. with regard to other matters we have come i think that there are some bench conferences that you want -- that are fairly historical that you wanted to memorialize, but also a new motion based on the events this weekend, mr. nelson? >> as the court is aware and prior to coming into court this morning for our closing
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arguments, we have an chambers discussion about events of this weekend, specifically referencing that an elected official of the united states came first person was making what i interpreted to be, what i think is recently interpreted to be threats of the sanctity of the jury process, threatening and intimidating the jury and demanding that if there is not a guilty verdict that there will be further problems, your honor, and given the fact that this jury has not been sequestered and has been my position all along that the jury should have been sequestered at the outset, the jury has not been continually -- has not been continually told from staying away from media, only media about this case, there is a high probability that members of the
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jury have seen these comments, are familiar with these comments, and things that have happened throughout the course of this trial, and it is unfortunate that there was another situation that occurred during the course of this trial, but obviously, your honor, we have as was mentioned previously too, one of the jurors lives in the city brooklyn center as i recall -- >> i think that is the alternate way of justice. >> i do not believe so. >> go ahead. >> i would have to go back and double check my notes. but the sum total of this trial happening in such a public context, number one, number two, wall all of this media attention is profound, staying away from 99% of it, but that has required me to stay away from all media, i mean, this case has made -- found its way in to fictional television, your honor, i was
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advised of two television shows over the course of the past few days that specifically involve references to this particular case, and the reactions of the characters in the stories to this particular case. this jury has had despite all best efforts has been bombarded with information relevant to this case, it is impossible to stay away from it unless you literally shut off your phone or you shut up your tv, you shut up your computer, and no such instructions have been given over the course of the trial. >> to fair, the last two times i have advised it i said don't watch the news, pure and simple. >> but if you can't watch your favorite thursday night television show when it comes up, i mean, this is the problem, right? and why i have felt that this jury should have been sequestered from the very beginning. so i had moved based on that again for a mistrial.
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it is a public trial and i think the court has accomplished that, but the media attention is so profound and is such -- i mean, it is such a modern comparison. it's such a modern problem to have were literally ion from this courtroom into the courtroom where i have been permitted to stay, during the course of this trial i received literally thousands and thousands and thousands of emails. so much so that i don't even look at that particular email anymore. but my phone gives me alerts on things that just happened, i mean, you can't avoid it. and it is so pervasive that it is -- i just don't know how the jury can really be said to be that they are free from bias, and now that we have u.s. representatives threatening acts
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of violence and relation to this specific case, it's mine bound. >> i will give you that congresswoman waters may to have given you something in appeals that could result in the whole trial being overturned. what is the state position? >> this is the concern that i raised at the beginning of the proceedings, along with jury selection is that we can't allow statements like this, to be considered a part of the record on appeal if there is a specific statement to that a specific u.s. representative made, then there needs to be some sort of formal offer of proof with the exact quotes, exact statement, or some kind of a declaration, and i'm sure mr. nelson can do that if he thinks that that is something that is appropriate. i don't know that this
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particular representative may specify a threat to violence, i don't know what the context is, i also don't know what television shows mr. nelson is referring to in terms of this, i just don't think that we can muddied the record with these allegations as to things that have happened without very specific evidence that is being offered before the court. as a practical matter, through the jury selection process, the court has provided instructions, has determined whether or not there are any outside influences, the law presumes that the jury follows the judge's instructions and the court has instructed the jury and the jury today that they are not to let any outside influence for public opinions sway their deliberations. in the law presumes that they could be capable of doing that. so without any sort of a specific offer of proof or information in the record, without any specific evidence
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that this particular jury was influenced in any particular way, i believe that the defendant's motion should be denied. because your honor, i make my comments in the context of this is all such an evolving situation. obviously a semiweekend preparing for closing remarks, and i certainly can supplement the record with news articles, i can supplement record with story lines of the particular shows that were brought to my attention, so i am making it to note the record at this particular point, and i can certainly supplement. >> you can supplement the record with ever media reports. i'm aware of the media reports. i'm aware that congresswoman waters was talking specifically about this trial and about the unacceptability of anything less than a murder conviction, and talk about being
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confrontational, but you can submit the press articles about that. this goes back to what i have been saying from the beginning, i wish elected officials would stop talking about this case especially in a manner that it is disrespectful to the rule of law and the judicial branch in our function. i think if they want to give their opinions, they should do so in a respectful and in a manner that is consistent with their oath to the constitution to respect the coweek role branch of government. the failure to do so i think is abhorrent, but i don't think it is prejudiced with additional material that would prejudice the story, they have been told not to watch the news, i trust they are following those instructions and that there is not in any way a prejudice to the event beyond the articles that we are talking specifically about the facts of this case. congresswoman's opinion really doesn't matter a whole lot, anyway, so the motion denied. with regard to there was a
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report to that council was made aware that a juror may have been talking to a major media outlet, we checked without, it appeared right from the beginning that it was thirdhand, hearsay, telephone games, that media outlet in fact took it very seriously, did a nationwide contact of all of the reporters and staff to check out any and apparently is none whatsoever, nobody from this major media outlets made any contact, and i find that credible and so just for the record, i pass that along. now, i think that we still have the memorialization, but we also have to talk about the blakely weaver. >> yes, your honor, so a couple of things, in terms of the memorialization of sidebar and objection, we have previously provided and have suggested that we provided our memoranda and of
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the objectives made and sidebars. i am going to propose rather than just simply reading through and taking an hour's time that we submit those objections in writing when that happen and in consultation with the state they can include their objections as well. >> it would be nice to include a stipulated pleading that says what the objection was and the courts ruling. there's no need to repeat the arguments, the only thing that you need to preserve for appeal is what the objection was and what the court's ruling was. so i would encourage both parties to get together and figure that out and file it reasonably quickly. does not have to be today, tomorrow, or even the next day, but just get on it while our memories are fresh. >> if there is a discrepancy between the memory as i'm expecting we will be able to come up with a stipulated document, but if there is anything that needs to be set out, we can just indicate or
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contrary memories. >> absolutely, i think that would be the best way to memorialize it in any case. all right, other than blakely, do we have any other issues to make a record of? >> no, your honor, i just think administrative questions about timing -- >> we can do that in chambers discussion. with regard to blakely. >> sure. i have not yet had mr. show ben executes a written waiver. again, i do have it. we can print it, and i can do it away from court. >> if you would. >> mr. chauvin. you can take your mask off. you are aware during the course of these proceedings the state has filed what is called the blakely notice or the notice to seek an aggravated sentence, yes? >> correct. >> i've explained to you the basis on which the state is seeking to have an aggravated
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sentence and in the event of a conviction if any on one of the accounts here, correct? >> correct. we have discussed those and i have specifically advised you that you have a right to have a jury decide whether or not the state has proven those grounds for an aggravated sentence beyond a reasonable doubt. you have the right to have a jury decide if you have violated it, correct? >> correct. >> and i have advised that the state has to prove those beyond a reasonable doubt. >> correct >> and we can waive that right if you are connected, waive your right to a trial and let the judge make those decisions. i have advised you about that? >> yes, you have. >> do you want a jury to make a decision about the proof required for the aggravated factors if there is a condition, or you willing to waive your
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right to a trial and allow judge to make those decisions? >> i am willing to waive it and have the judge dispute those issues. >> i will address you individually, because this is another one of the decisions you have to make for yourself, this is a waiver of your jury trial right when it comes to aggravating factors. normally we would submit a verdict form with a question and yes or no options, and that's what generally the jury would consider. in order to say yes, the jury would have to be convinced beyond a reasonable doubt. the burden of proof does not change, it's only that i will be the one who is answering those yes or no questions. it was always true that based on whatever the answers are that i would be the one deciding if it constitutes a legally substantial compelling circumstances and we would expect briefs on that. do you understand that? >> yes, i do. >> basically i will answer those questions instead of the jury and applying the standard of proof beyond a reasonable doubt, is that to which you want to
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have happen? >> yes, sir. >> i would ask that you file a written blakely order in addition. >> your honor, i just have a question on the form that was provided and we can again -- >> it is an administrative memorialization, so we can do that off the record. counsel, i'm going to talk with the instructions, give me 20 minutes and then why don't you come on back, all right? otherwise we are in recess until we hear from the jury. >> dana: all right, we are back now, so the jury has received their instructions and then there was a discussion, i want to bring in the rest of "the five" to talk about this a little bit. there was a move by the defense attorney eric nelson's essay, he wanted to ask for a mistrial. one, he thought because the jury had not been sequestered that that was a problem, he also then
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pointed to comments that we have been talking about on the channel a bit today, those are the comments by congresswoman maxine waters in which she suggested as he saw in that clip, maybe just before we went back to the judge calling for confrontation if the verdict does not turn out the way that she wants. so lots happen here. we're also waiting on a press conference, we will take you live, the governor of minnesota and other state officials to talk about safety in the area as you can imagine, minneapolis on edge very much so. jesse watters, can i start with you in terms of reflections of the day or maybe what we just heard especially the judge's, probably the most critical that we have heard talk about the comments of maxine waters. >> jesse: yes, he called those comments abhorrent and really admonished her, said that she was not respecting the balance of power, and wasn't respecting her oath to uphold the constitution. but he didn't say that that
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would trigger a mistrial, and i'm sure defense will use that on appeal if that's the case, if you look at what maxine waters said, it's definitely more explicit and more insightful than what president trump said on january 6th, but do i think that the house is going to vote to expel her? absolutely not. she has a get out of jail free card and no one is going to touch a hair on her head. i do think just looking at the trial, derek tobin is going to get convicted of all three charges. the defense was not able to move the trial out of the county where the crime was committed, the prosecution did a great job and the jury selection in the videos are very powerful and it speaks for itself. if the murder 2 charge, dana, it does not even have to be intentional, it can be unintentional, the fact that the knee was on the neck in a felony manner because the death and not even the sole cause of death, just a primary contributor to the death. to the third degree murder
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charge, again, not the sole contributor, just a dangerous act, and then the second degree manslaughter charge, that is just basically negligence, and that's a lay up for the prosecution. the only thing there is they don't do murder 2 murder 3, which is basically 12 and half years for each one considering chauvin has no record, manslaughter charge only carries four years, so that's the only thing they get him on. to the streets are going to go nuts and the judge will be under a ten of pressure to overspend. that's what i worry about, and maxine waters did not help the situation there. >> dana: one of the things, and i want to get to pete from minnesota, let's get juan in here quickly, the defense attorney started his closing arguments by reminding the jury that reasonable doubt is the standard and that is true across trials all across america, that's the way that it is.
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the prosecution, they stood up later and said, use your common sense, believe your eyes, what you saw, you saw. and then of course it's a video of the 9 minutes and 20 minute nine long video that jesse just referenced, i will get your overall take on today's events. >> juan: what you heard from the defense was well, the possibility that it was the carbon dioxide from the running car or an angry mob surrounding the events as they took place, dana, so i think that the defense was trying to come you know, some said muddy the waters and try to get people away from the idea of that the prosecution said, seeing what they saw with her eyes and hearing what they heard from the witnesses. to me, picking up on what jesse was just talking about, i thought the prosecution's case was very strong, but you know,
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it is rare that a policeman gets convicted in the united states. we tend to give them the benefit of the doubt in these situations, but in this case i think that if you listen to the prosecution and you listen to the defense, you have to say that derek chauvinism not prosecuted here, and found guilty, then a policeman can basically do anything, anything to an american citizen especially to a black man without any repercussions, because it was such an egregious act. as to maxine waters, not jesse, as to maxine waters, clearly what she did was wrong. i don't think that we need any more violence years. i don't think that violence is even going to help the case of people who are upset about what happened to george floyd. i think that it would in fact dilute attention on the real problem which is police brutality and instead allow
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people to talk about rioting or disruptions in the streets. >> dana: pete, if i can go to you, one thing from eric nelson, the defense attorney said that a reasonable police officer understands the intensity of the struggle and he talked about the fact that there was this chaos that was going on in the situation and george floyd was resisting, i want to get your take on that, but we are waiting on this press conference from the governor of minnesota and local officials in minneapolis, given your knowledge of the area, give us a sense of what that might feel like tonight? >> pete: it will be a tense scene, no doubt. watching it all today, and i did, i'm going to disagree with my good friend jesse watters and say that the defense did as good of a job as possible of attempting to introduce reasonable doubt. and watching the jury trial today, reaffirmed a lot of why the american justice system is a
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beautiful thing. for all the frets and irresponsible ones of maxine waters and all of the talk of race on the outside, there is not one mention of race inside the courtroom except for this odd implicit bias determined that the judge gave at the end, other than that the defense in the state stayed away from it and made their best possible case. the defense introduce that reasonable officer standard that you mention, the defense used body cam footage of the officers more often, the state use people that were watching the perspectives, ultimately the defense tried to humanize the decisions of chauvin, not that you can defend the 9 minutes and 20 seconds, but what about the 20 minutes before that where he is absorbing information in trying to determine what the right decision is. minute-by-minute of the decisions he was making when he called emt that he did not escalate force, he is talking, he is breathing, i'm not justifying it, but the defense
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did a strong job of making a case in front of a jury, six minority members, six white members. it's not the judge, it's not the lawyers, it is the jury of peers and ultimately end that reaffirms how a lot of my faith in the system, derek tobin got a fair trial today. we will see what happens. >> dana: katy, let me get your general thoughts, and we are waiting for the press conference that we will bring to you live. >> katie: if you watched any number of hours of the trial and especially the closing arguments today, it is very obvious that what the american people have been told by the majority of the media in terms of this being as clear cut case is not the case at all. it is complicated, it is nuanced, they are more videos than the 9 minutes we have been shown through social media and news networks over the past almost year now, the reason why the defense asked for a mistrial as a result of congressman waters comments is because it is
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about painting the jury, she is intimidating the jury if they were to see that, given she is in a crowd, minneapolis has been under siege, they have seen businesses burn down, people make threats over the weekend. read one of the use of force witnesses on behalf of the defense, the former home was actually vandalized with animal blood and a pig's head because he is a former police officer, so this intimidation is an issue especially because the jury was not sequestered away from media in a time where social media and these kinds of issues bleed into all of the other news items that we are talking about into culture as well, it's pretty astonishing that the judge did not require that the jury stay away from media other than just saying, yes, other than just saying, don't turn on the news, well, not turning on the news is not the only way that people get information. we'll see what happens, but really quickly in terms of what is going to happen with this use
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it officials, it is not just minneapolis and minnesota, it is places in california, it's in new york, and it will be interesting to see the differences between what ron desantis has said about what they will do with writers versus may be the minneapolis governor and minnesota will say about consequences for doing so. >> dana: let's hear from someone who is they are, mike tobin in minneapolis has more for us. good afternoon, mike. >> good afternoon, dana, certainly was an interesting development with someone from the outside coming here even the ability to get an admonishment from the judge in this case of the defense trying to raise every specter that they can, but the fact that the judge acknowledged that it is a problem and acknowledge the fact that the jury is not sequestered, they are not blind. they started off this case knowing the impact that the derek tobin case, the george floyd case had on not just the community, but the nation. so that has to weigh in their decision-making's as they go
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into deliberation. what is happening out side the courtroom, there is a native american group that has joined the demonstrators, the crowd of demonstrators pretty small pocket, about 30 people and when you get a verdict, things will change, particularly if the crowd out here does not like the verdict, things are going to go, it is quite a flash point, the one thing though security officials in the collective network called operation safety net, the one thing they could not predict was the shooting death at the hands of police of daunte wright, that has tapped into the resources and their manpower and in addition to the call of the national guard, they are calling on a law-enforcement group from outside the state to supplement the manpower, because you have such a flash point and it could be such a big load for them to carry. >> dana: can i ask you one other question, they are going to have the press conference, the state officials, what are the business owners asking for? what are they expecting?
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we can accept that businesses are just going to be destroyed, and i think that there is so much frustration in the community there. >> there is a tremendous amount of frustration, but there is also a real sympathetic stance that most of the businesses have out here. we have been talking about the business owners for quite some time. there are many people in the nation who have looked at that video, the 9 minutes and 20 seconds and come up with another argument. or aren't horrified. in particular as we go through the trial you get 3 minutes after george floyd stopped moving. when you talk about people about that even if you are a pro cop, there's not much of an argument you can make. that would back what you saw on that tape. for the defense say don't pay attention just to the video, pay attention to everything going around him. we will see what the jury has to say, but when you talk to the business owners they want to operate their business, they are going through enough with covid, but the fact that you have a retail establishment with boards up on it you just expect that it
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minneapolis. you go to a restaurant and can't see through the windows because the boards are up. everyone wants to get through this and get through in one piece and get through it without another the big wave of destruction, but again the business owners are rather sympathetic to the people who are very upset over what they have seen with this case and the daunte wright case. >> dana: let's go back to our panel here, jesse watters we will give you another chance to come in here and maybe that aspect, the business owners understanding and being sympathetic, but we have talked to a few that they don't want to lose their livelihood. >> i would not be sympathetic if my store burn down twice in less than a year, no. especially if this is going through the correct legal process and just to talk about that process, you know, pete made a point that the defense did the best job they could introducing evidence that george
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floyd resisted and had a bad ticker, was a substance abuser and ingested a dangerous amount of narcotics which was causing his body to react in a certain way. but if you go to just the murder the murder 3 charge, it does not even account for the drugs. you can say they need to the neck primarily because the deaths and also drugs were a factor and you still get the conviction. even if the need to the neck was not felonious, you still get the conviction. so i'm just seeing a very tall hill to climb for the defense, especially when the prosecution brings in an overwhelming amount of medical examiners and people testifying to the fact that the knee did cause the death. but if this guy goes to jail for any time, it's going to be rough and he is not going to do well in prison, he is a police
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officer, everyone has seen this tape and he would have to be put in isolation. so whatever happens, it's not good to be good for derek tobin. >> dana: juan williams, may be another round from what you heard from mike tobin postmark >> juan: i was listening to what mike had to say in terms of the community in one of the realities is we are talking about store owners and the potential for disruption, but i think that you have to talk about people who feel like, you know, that was a horrific videotape! and you saw a man lose his life, and in fact what you are hearing now from people who were in the stores, people who own those stores is they wish they had acted differently and not put george floyd's life into the hands of the police, i think that you have to understand that this is all across america and is being reflected in terms of efforts to reform policing, this
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is a major moment that people feel especially people of color that they are not treated as citizens, but a suspects based on their skin color and want some kind of change to take place. i think that that is a deeply widespread felt grievance here of the american people that you have to of course have law enforcement, this is not about law enforcement that is good, people want to law enforcement in their communities, but they don't want to be abused and they don't want to be viewed as suspects and treated as criminals. i just think that's a really important point, because we all empathize with someone with property damage and an ongoing business that is disrupted, but i think you have to focus on the larger issue which is watching the man meal on another man's neck, let's just put race aside even though that we know it is a
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central factor, but let's put it aside and say that that's outrageous. >> dana: one other thing, senator tim scott of south carolina has put forward a very comprehensive police reform bill that was roundly rejected by the left polluting from some moderate senators in the congress, do you think that was the wrong move? if there was an opportunity to actually get something done and it was rejected? >> dana: yes, because it was so weak, dana, the idea i think was tim scott who is someone i know well, tim scott did not -- he wanted to do what he could to get something from his colleagues that would pass in the u.s. senate, and to do that he had to do almost the least possible in order to have the sense that it was going to pass, because if he put his name on it and it was embraced by the democrats, it would be the clear
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expectation that this will pass the senate. and we are talking about a time when it was a republican majority. so a lot of the moderates, as you point out, it's not even the far left, it's the moderates in the senate that said this is so weak that it really does not amount to substantial change and would give people down the opportunity that we already act, we don't need to do anymore. before but katie, they did not even try to have a discussion? if you think it's too weak, try to make it stronger? >> katie: and it's funny because we have been talking about getting rid of the filibuster and the democrats used the filibuster to tamp down and get rid of tim scott's criminal justice form which could've been a bipartisan step forward and a lot of agreement along both sides of the aisle. but he said that there was evidence in this case that this was about race, we did not hear about that in the trial, and he
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says that george floyd was approached by the police and treated like a criminal because of his skin color when he was called because he used a fraudulent counterfeit $20 bill at the store which is a federal crime. and so the police were called to the scene for legitimate purposes and derek tobin was called they are as back up after the situation erupted with resisting arrest. so to say that there was no reason why the police were called and he was simply targeted because of his race is completely counter to the evidence that we have seen over the course of this trial and on that issue, we have seen a lot in the media about what they think the case is about, but when you listen to the testimony and the arguments both from the prosecution and the defense, we have seen a very narrow view of what has happened here so far in social media and with the narrative, but if you look past that and listen to the arguments being made, there are reasons why certain things happened, for example the defense said there was a nine minute situation because they were waiting on cms
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to get there to deal with the situation. you also heard about how chauvin was called as back up. you heard from certain people who are in the department and also outside witnesses say that well, actually the knee on the neck was a valid and allowed use of force by -- depending on if there was enough resistance, you can see the whole video, there was a lot of resistance that went on, so just to say it is about him being targeted by race is counterintuitive but what the prosecution has been arguing for weeks now. >> juan: can i respond very quickly? i did not say that it was about race in that sense, katie, i am saying that as americans it is central to the way that we as americans are viewing this case a white cop on a black man. the second thing to say is when you're talking about the emergency medical people, remember that one of the people who testified was an ems person who came on the scene and said
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she was concerned about his health and asked that this stop and was told, no, leave it alone. and i think it is very important that the thin blue line here includes the police chief, medical experts, and others who are on police forces who have testified, this was unnecessary use of force. so when i say to you that we know race is a principal consideration given race and policing in america, that's what i'm saying, i agree with you in terms of the judge and others have kept race for the most part out of this case. >> katie: i am not taking aside, i'm just simply pointing it out. >> juan: i appreciate that. >> dana: we heard from the young man that worked at the cub foods and he recognizes that there is a counterfeit bill that george floyd attempted to use,
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called the police, but when he testified, he wishes that he had not ever called, that's what people in a pretty tough position. you can't try to pay for things with counterfeit money. >> jesse: that's right, but he did call and we are dealing with what comes from there. and i want to live in a country that most peoples are not like this were an immigrant store owner can call the cops over a $20 counterfeit and the cops actually show up and actually do something about it and don't ask for a bribe, don't look the other way, and don't walk away. the actions that happen afterward are in dispute, but our system is predicated on blind justice, black or white and the ability to call the police and they show up and do something about it at risk to their own lives, and as katie and others have pointed out, to dispute what happened not just in the 9 minutes, but before hand and you have a big guy and lots of officers trying to do him and what the defense did so well and i relate to this as a
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platoon leader who has been in contact who has been second-guessed. it's easy to look at a videotape and say this is what happen here and there, but when you are receiving information in bits and pieces, you arrive late, you are trying to assess the safety and security with the situation. you call the amt, you think they are going to be there, because he is talking, he can breed, all those things are factors that the defense introduced. as to the press conference we are about to hear from, here's the sad part, leadership in minnesota has been abysmal in addressing security. so governor kim wall and as locals call them baby mayor fry, jacob frey who really became mayor to imagine green spaces and then found out that he had to do real things, i will be surprised if they do anything serious. we had a national guard who was shot in the windshield last night because -- the national guard will be in the middle of this and if it goes sideways, our minnesota
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leaders prepared to stand behind law enforcement and the national guard to protect businesses? there is a lot of doubt, and that's a scary thing for the blue in the green who will be on the streets. >> dana: let's go to the streets, matt finn live outside the courthouse to give us an update they are. >> right outside of the courthouse and the immediate area is calm. there is a growing crowd of demonstrators as you can see behind me the national guard is here. they have been here the entire time beginning in early march. the courthouse has been a fortress with razor wire and barricades behind us and people getting in and out how to be escorted and greeted by armed guards through security. in the entire area of downtown minneapolis has felt like a ghost town for weeks now. reminding our crew of the early days of the lockdown last year when major cities became ghost towns. that's what it is felt like for weeks, and increasingly by the day in the week more and more businesses have been boarding up and more and more corporate buildings have been boarding up
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right around the corner from us right now their buildings that are actively boarding up in the final moments before we can anticipate a verdict at some point. we talked to a lot of businesses in this area especially in the lake street corridor were, that was hit very hard. many were boarding up weeks ago and said that they started putting together plans in preparation for this verdict. we are on the standby. and businesses did express to us that they were a bit unsatisfied with the leadership in the city especially after hundreds of millions of dollars in damage last year, half a billion with a b damage in this area, so owner said that they wished the mayor stop by or some of the leadership had visited and asked them about all the destruction to the property. some of these businesses that lived through last summer's riots had just reopened their doors in recent weeks, now some say they will board up again and others say that they cannot afford to. >> dana: matt finn, if you will stick around that will be helpful to us, and i'm sure you
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will be busy for the next few days. i want to play for you again, everyone on the panel, what the judge said in reaction to the defense's bringing up the comments of congresswoman maxine waters, california who was in minnesota and said that there should be more confrontational approach if the verdict does not go the way that she wants, which is a total conviction on all three counts. let's listen to the judge who says he will not grant a mistrial, he said that they might be able to use it on appeal and said this. >> now that we have u.s. representatives threatening acts of violence and in relation to the specific case, it is mind-boggling to me. >> i will give you that congresswoman waters may have given you something on appeal that may result in the whole trial being overturned. >> dana: i want to bring in
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andy mccarthy, former prosecutor as well who has been watching all day, you are on the phone with us here, you have to work pretty hard as a california congresswoman to affect a jury in minnesota, but that's potentially what just happened, get your thoughts on that. >> yes, dana, i think that obviously the importance of her comments are that she is a california or united states congresswoman, but as far as being able to affect the trial, the problem is that you have this powder cake in brooklyn center which is just 10 miles from the courthouse where the chauvin trial is taking place, and one of the jurors is from that area and the number of them have people in the area that make it so problematic. you can't look at this in a vacuum. at the defense made a motion to sequester the jury after what happened in brooklyn center,
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they actually made a sequester motion before that, and i think that the judge has done a very good job with the trial, but i do not think he made the right rulings in not sequestering the jury once that happens, instead the jurors were sent home this weekend wall all of the protesting, a lot of which devolved into rioting took place. so what maxine waters did here has to be added to that equation, it can't just be looked at in a vacuum. >> dana: andy, i will give my colleagues a chance to ask you a question if they have one, i wanted to ask you since we have not how your thoughts at the end of the closing arguments, you know, we have talked this morning on "america's newsroom" that reasonable doubt is the standard that the defense has the get into the jury's mind. do you think that the defense was successful? or did the prosecution make a better case? >> i think that both sides did a
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good job, the problem here continues i think to be that they are arguing the kind of alternative reality about causation. so the prosecutors are arguing as if the plethora of problems that mr. floyd had is a coronary problem, the drug use, some other things, but they don't make any difference, like it is in either or, either chauvin and the other police had to have killed him, or it is the medical problems, so you have the defense side acting like what chauvin and the police officers did had no effect which seems to be absurd on its face and hands the prosecutors claiming that the other array of problems that floyd had were irrelevant, which also does not really make a lot of sense to me. >> dana: jesse watters has a question, jesse. >> jesse: that was exactly
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what i was going to ask, how do you think they did in introducing the toxicology report reports and the drug history of george floyd and if they were able to convince the jury that that was the substantial cause of death, not that the knee did not have anything to do with it, but the reaction to the drugs under duress, whether that was a convincing enough case to plant that reasonable doubt in those jurors? >> jesse, i think that obviously they have a much better shot on the murder count than the manslaughter account in making that flight, but the problem is the judge instruction to the jury is not an either or, what he is going to tell the jury and the prosecutors hammered this at the end, jerry blackwell, the last prosecutor to speak in rebuttal, with the jury is going to be told is they need to find
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that what chauvin and the other author servers did was a substantial causal factor. it does not have to be the only one, it does not have to be a situation where it did not interact with other possible causes, so i don't think that they are going to get very far with the causation argument. i think that the subtle argument which they may make some and roads in is that these other array of problems that george floyd had were not irrelevant and that it was reasonable for the officers to think that they were -- what they were using, even though it looked awful was nonlethal force and that if you are dealing with a normal person as opposed to a person who had this plethora of problems, they would not have believed that they were putting him in such serious jeopardy of for his life. >> pete: andy, we played the clip of maxine waters going to minnesota and saying anything
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but a first degree conviction leads to more confrontation and we saw the exchange with the judge and the recognition of that. the motion for mistrial was denied, but says that -- forgive me, i'm not a lawyer, does that mean that if it does not go chauvin's way, it can be retrieved -- reintroduced to go again. >> i can assure you that america is going to forgive you for not being a lawyer. [laughter] but the answer is, really, the judge, we are told this, this will end up being a major issue on appeal. and i don't think it's going to be a matter of the prejudicial old publicity and actually to the point of threatening the jury, but that rises or falls just on maxine waters in a vacuum, i think that there is a whole string of activity here, and there is background here. there has always been a motion
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on the table that derek show and could have gotten a fair trial and that the case should've been moved out of the -- out of hennepin county. so this is not something where it's just going to be maxine waters. there is a whole history of this litigation in terms of prejudicial pretrial and during the trial publicity. >> dana: we are waiting for the press conference with the governor and other officials in minnesota. we will bring that to you as soon as it happens. in the meantime, juan, you a question? >> juan: sure, hi, andy. i wanted to emphasize that the judge peter cahill said quite explicitly that the facts of the case is what the jury is considering no matter what, maxine waters, the congresswoman may have said or what her -- however her words may be interpreted, and to my mind, the defense is likely to bring up the sequester as we heard in the conversation that took place after the jury left the
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courtroom, they are likely to bring up the fact that there were multiple requests and likely to bring up the idea that maxine waters and others in the media, other media sources may have in some way affected the jury, but unless one of the jurors says, yes, i heard it and it affected me, i don't know is a standard would be for somebody on appeal to say, oh, yeah, all of the facts did not matter, all of the trial did not matter, that seems to be a high bar to my mind. >> you know, juan, i think one of the reasons of what judge cahill has done in handling this is prudent is he basically denied the motion for now. it can always be renewed after the trial in the appellate record, but a lot of times you can't really make an intelligent assessment about how something affected a jury until you see how they resolve the case, so i
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had a terrorism case in the '90s where there was a ton of publicity and it was the same kind of claims that there were here and it turned out as a judge made an error in instructing the jury's and the defendants on those two counts got acquitted because the jury showed that they were able to follow the judge's instructions. so you need to see how the jury performs before you make a big assessment about how much they were affected by all this. >> dana: katie pavlich, are you ready with the question? >> dana: i am ready with my question, thanks for joining us, it's great to hear from you. only to bring in what we need for the show, why would a judge not sequester the jury in an age of social media and these issues basically affecting every part of culture or whether it is the news media or hollywood, what would be the reasoning behind
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not specifically making sure that they were not just not turning on the news, but staying away from anything involved in the case? >> it is always a very tough balance. judges hate, it is already a big enough imposition to serve on a jury. judges don't like to make it more of an imposition in the same terrorism case i just talked about a couple of minutes ago, we had the oklahoma city bombing happen in the middle of our trial, and there were motions made by the defense at that point to sequester our jury, but it was still six months to go on the trial and it seems to me that it would bring people bold to try to keep them together. here i think it would've been wiser for the judge to grant the motion after what happened in brooklyn center, because they were right at the end of trial and could have not taken a day off and just kept working through the weekend and i think he will regret that he did not do that.
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>> dana: andy mccarthy you are always available to us and we appreciate that. a star fox news contributor, no doubt we will talk to you in the coming days, thanks so much. in the remaining time, we will take it the table again for some final thoughts. jesse watters, should we start with you? >> jesse: america can afford more riots and looting after the year we had, we have the pandemic and over half a million americans dead, we have had economic turmoil, crazy election, and just as everyone is getting vaccinated and getting back on the feasts, especially in him back hennepin county, to have another round of malicious, dangerous, and violent action instigated by the left, by members of the media, our colleagues in this industry, members of congress who swear an oath to uphold the constitution so light that fire while we are in such a tinderbox as a nation, i think would be reckless, irresponsible, and set this country so far back, not
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just in terms of race relations and psychology, but just think about the men and women that live in that county, that live in minnesota and the wildfire that it is going to spread to los angeles, new york city where we are, in washington, d.c., all across the country of something like this happens and goes sideways, i just pray that we don't see violence, because this country cannot afford any more of that garbage. >> dana: pete, talking about what could happen in minnesota. >> pete: just checked, maxine waters still on facebook and twitter, and don't see fit to block that type of incitement of violence. we know that that exists, in the twin cities has seen a great deal of violence, my mind goes to the police officers in the national guardsmen on the ground, many of which i know who are in no impossible situation, because national media certainty as they are, activists
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emboldened by congresswoman and members of the mob media who encourage them and political leadership that has towers to the defunded police, the minneapolis city council voted to defund the police before they voted to give some money back it, because reimagining the police is gobbledygook nonsense that does not protect the community when you call when you need them. and my faith in our country in many ways was restored in a very dark and difficult time in watching besides these implicit bias nonsense which i have mentioned before from the judge, but the fact that the fate of this officer of this moment is in the hands of a jury and not a mob, not the media, not the judge, not lawyers is reaffirming the extent to which we live in the most exceptional country on earth where justice system is handled by people and not by the powerful, that gives me hope regardless of where the verdict goes, and i pray that authorities will be given every
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possible asset that they need should it go in either direction to defend these businesses and the people who live there that don't deserve to be ruled by the mob. it's a scary moment. before i went your final thoughts, but curious, do you think that president biden may have missed an opportunity to be more forceful in his comments today? of course the press secretary said that he expects protests to be peaceful, but beyond that, it has been fairly invisible? >> juan: i think that's probably wise, dana, i don't think that he wants to cross what we just heard from judge cahill, which is somehow trying to influence a different branch of government, the judiciary, they are doing their job, let them do their job and certainly not wanting to influence anybody on that jury and have it then become the basis of the judge for a mistrial given what maxine waters had to say. so i think that he was right. he is the president of the united states coming he has a
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bully pulpit, but i don't think it's the appropriate perch to interfere in an ongoing criminal trial. and for my final thoughts, dana, i think one of the big factors that we have not discussed is the use of cameras, you know, as i said earlier, we give the benefit of the doubt to law enforcement in the country, but we have gone through a siege change over the last year because people have cell phones and cell phone cameras, and people have been recording with the police do and so where as much of the defense that we heard for derek chopin would have been given even a higher degree of credibility as he is wearing the uniform, there were other officers there, but the fact that you had the visual that the jury could see, that the nation could see what took place, could time the extent to which the knee was on the neck, i think that has made a tremendous difference and has added credibility to the idea
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that, you know what, the police often go to extremes that are indefensible when it comes to their handling of american citizens and especially citizens of color. >> jesse: they don't often go to extremes, that's not true. they don't often go to extremes. that's just not true. and you should know that that's not true. there are 350 million americans in this country. everyone has a cell phone. 350 million americans, there is only a handful of these incidents a year, i actually think that speaks well to the police, don't you? >> juan: i think what you have -- crime, but i am saying that it reaches to the point where you even get evangelical ministers, pat robertson saying this is not acceptable. i mean, pat robertson is not some far left crazy.
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>> jesse: i don't think it's acceptable at all, but i don't think that you should smear the entire police department in the country. >> juan: i'm telling you, jesse, there is a history. i can go through name after name, the reason that we are at this point and the reason that the case galvanizes the nation's attention is because it is on camera. it is hard to say no, it did not happen. >> dana: that's how the jury saw the trial, they watch all 9 minutes and 29 seconds, give you the final word. >> katie: they also watched a lot of other footage and not just from people who were watching, but from body camera footage which has been beneficial both to the defense and to the prosecution, i would just say on the violence that we are hoping does not have been, president biden does have an opportunity for leadership, given that his vice president helped bail out writers who helped burn down last summer, the tweet is up, you can see it, i'm not surprised that they are coming out to say something.
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>> dana: awaiting the press conference, when it starts we will go to that and in the meantime, thank you so much. that is going to do it for us tonight on "the five." we will be back here tomorrow, "special report" is up next. ♪ ♪ >> bret: good evening, welcome to washington, i am bret baier. law-enforcement bracing for a reaction to a verdict in the trial of the minneapolis police officer accused in the death of george floyd. you are looking live in st. paul. the governor of minnesota in the twin cities mayors, both of them are about to speak. we will bring you their lives for the plans of the verdict and what the security looks like on the ground. closing arguments in the case given today. but also comes as one democratic lawmaker traveled to minnesota, called for more confrontation in the streets, her critics charge that she was inciting

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