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tv   Good Morning America  ABC  April 19, 2021 7:00am-9:00am PDT

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so cool. >> i can't believe that. how is that even possible? [ laughter ] >> science. we lov >> announcer: this is an abc news special report, the death of george floyd. derek chauvin on trial. now reporting david muir. good morning. we're just moments away from closing arguments in the trial of former minneapolis police officer derek chauvin, charged in the death of george floyd. his death igniting protests around the country and the world. of course, those unforgettable images seared into the american consciousness. it was memorial day last year former officer chauvin with his
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knee on floyd's death for 9 minutes 29 seconds. floyd heard saying i can't breathe and calling for his mother. chauvin is charged with second degree murder, third degree murder and manslaughter. last week chauvin invokeed his fifth amendment right not to testify. at the end of the as we await the closing arguments, a warning, we egxpec to see the video of mr. floyd's
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death and it is graphic. i'm joined by linsey davis in new york. i wanted to start with you. this case has been live str we have some golf commentary. what was that? >> you have a certain amount of time you can wait before you have to mark it. i've tried that. it's never worked for me. get in there. >> get in there. well, good morning, america. george, michael and i hope you had a wonderful weekend. we have a lot to get to on this monday morning. nasa making history overnight. the first controlled flight of an aircraft on another planet. we haven't had this much attention paid to a police brutality in this country since the beating of rodney king in 1991. you had a case there that had this compelling video, a case that ignited a national conversation about race and policing in this country. here we are, david, 30 years later still having the same conversation. i think that, you know, as you and i discussed a few weeks ago during opening statements,
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what's really important to discuss, right, is that inside that hennepin county courthouse this is about what happened on may 25th at the corner of 28th and chicago with derek chauvin and george floyd. out on the streets, this is a litmus test throughout this country and beyond where there's a perception that there's a devaluation of black lives in this country. people are waiting with baited breath to see if you can still kill black people with impunity. it strikes me that we are once again at a tipping point in this country. we all saw that horrific video. what was new in the trial, i think, that really struck me was the idea of this shattering of that blue wall of silence. it's so rare you see police officers really turn on each other. here we had nearly a dozen, one by one, gave testimony from the
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police chief to the dispatcher who said the actions, the use of force by derek chauvin was excessive, unreasonable and inconsistent with protocol. >> that was one of the key components of the prosecution's case, to put so many police witnesses on the stand. as you point out, that is not something we typically see in police cases. rodney king, 30 years ago, we all remember the reaction to that trial in this country which is why people are watching very carefully and so is law enforcement. i want to bring in alex perez. he joins us outside the courthouse in minneapolis. 44 witnesses. 14 days of testimony. this all comes down to the two cases made, the case by the prosecution and of course by the defense. give us the bottom line of what both sides were trying to accomplish here. >> reporter: a dozen were members of law enforcement,
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including the police chief here in minneapolis, testifying that what derek chauvin did that day, his actions were wrong. he did not do what he was trained to do. while much of the country has been anticipating this trial and the end of this trial, here in minneapolis they have not been able to turn away from this case since the incident occurred almost a year ago. during closing arguments we anticipate the prosecution will go step by step, everything they've been talking about the last three weeks, that derek chauvin's actions, his knee on top of george floyd for more than nine minutes that those actions killed george floyd. we expect the defense, eric nelson, he's going to tell jurors what he's said. that derek chauvin did what he was trained to do and he couldn't render aid because he felt threatened by the
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bystanders that gathered demanding he get off floyd. we expect that is what jurors will listen to. we expect the prosecution's closing arguments will last about an hour. the jury instructions will be very important. the judge has been working on the instructions for the last seven days. it will give them the parameters by what they have to review the evidence. a lot of work for the jury ahahead and everyone will be watching. >> alex perez with us from the beginning. let's bring in dan abrams. alex points out this will come down to whether the jurors believe officer chauvin's behavior created a substantial role, not killing george floyd necessarily entirely, but a substantial role in the death of
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george floyd and whether they made that case successfully. >> and they have the burden to prove that beyond a reasonable doubt. they had a lot of witnesses testify they believe that was crystal clear. you had a little bit of disagreement between the prosecution's witnesses exactly what the cause of death was, but they all agreed derek chauvin's actions were the cause of the death. that's the best argument for the defense here. the defense will focus on that issue pursuing reasonable doubt. the defense is hoping for, betting on that somebody in that jury room, more than somebody, i just don't know. i'm not certain about exactly what happened. >> dan abrams with us as well.
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this courtroom live streaming right now. judge cahill now speaking. >> you have a copy on your seat. i would encourage you follow along as i read them to you. i'll ask you to put the remaining instructions under your chair so you can listen to the closing arguments of counsel. it is your duty to decide the questions of fact in this case. it is my duty to give you the rules of law that you must apply in arriving at your verdict. you have now heard the evidence and soon you'll hear arguments of counsel. at this time i will instruct you in the law applicable to this case. you must follow and apply the rules of law as i give them to you, even if you believe the law is or should be different. you have each been given a copy of these instructions to follow along as i read. you may take your copy with you. you should listen carefully as i read them to you now.
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please note, that the titles of the individual sections of the instructions are not part of the instructions, mere lly placed a headings to assist you. deciding questions of fact is your exclusive responsibility. in doing so you must consider all the evidence you have heard and seen in this trial and you must disregard anything that you may have heard or seen elsewhere about this case. i have not by these instructions, nor by ruling or expression during the trial intended to indicate my opinion regarding the facts or outcome of this case. if i have said or done anything that would seem to indicate such an opinion, you are to disregard it. you must consider these instructions as a whole and regard each instruction in light of all the others. the order in which the instructions are given is of no significance. you're free to consider the issues in any order you wish.
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the defendant is presumed innocent of the charges made. this presumption remains with the defendant unless and until he's been proven guilty. the fact that the defendant has been brought before the court by the ordinary processes of the law and is on trial should not be considered by you in any way suggesting guilt. the burden of proving guilt is on the state. the defendant does not have to prove his innocence. proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon. a reasonable doubt is a doubt based upon reason and common sense. it does not mean a fanciful doubt, nor does it mean beyond all possibility of doubt. a fact may be proven by director circumstantial evidence or both. the law does not prefer one form of evidence over the other. the fact is proven by direct
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evidence when it's proven bipby witnesses who testified what they saw, heard or experienced. a fact is proven by circumstantial evidence when its existence can be reasonably inferred by other facts in a case. if a person watches a deer walking a field, the person has direct evidence because it sees it. if a person doesn't see deer, but finds tracks in the snow, it's circumstantial evidence that the deer walked in the snow because it can be inferred by tracks found in the snow. attorneys are officers of the court. it's their duty to argue their client's cause. however, the arguments or other remarks of an attorney are not evidence. if the attorneys or i have made or should make any statement as to what the evidence is that differs from your recollection of the evidence, you should disregard the statement and rely
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solely on your own memory. if an attorney's argument contains any statement of the law that differs from the law i give you, disregard the attorney's statement. the state has brought three charges or counts against the defendant. each count charges a separate and distint offense. you must consider the evidence applicable to each count as though it were the only accusation before you for consideration. you must state your findings as to each count, uninfluenced by the fact that your verdict to any other count or counts is in favor of or against the defendant. the defendant may be found guilty or not guilty of any or all of the offenses charged depending on the evidence and the weight you give it under the court's instructions. i'm about to instruct you on the law that you are to apply to the charges in the defense. before doing so i'll define a
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few words and phrases. the words and phrases being defined are bold and in the written copy of the instructions. you should use these definitions for these words and phrases in your deliberation. at attempted means the defendant did an act which was a substantial step toward and that the defendant did that act with the intent to cause that result. there are several forms of bodily harm relevant to charges. bodily harm means physical pain or injury, illness or any impairment of a person's physical condition. substantial bodily harm means bodily harm that involves a temporary, but substantial disfigment, that causes a substantial loss or impairment of the function of any bodily member or organ. great bodily harm means bodily injury that creates a high
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probability of death that causes serious permanent disfigment or causes a permanent or loss of impairment of the function of any bodily member or organ or any other serious bodily harm. to cause death, causing death or caused the death means the defendant's act or acts were a substantial factor in causing the death of george floyd. the defendant is criminally liable for all his actions, including the consequences brought about by one or more intervening causes, if these were the natural result of the defendant's acts. the fact that other causes contributed to the death cause not relief the defendant of criminal liability. however, the defendant is not criminally liable if a superceding cause caused the death. a superceding cause is a cause that comes after the defendant's acts, alters the sequence of
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events and is the sole cause of the result that not otherwise would have occurred. to know, have knowledge or knew requires only that the defendant believes that the specified facts exist. intentionally or intentional means that the defendant either has the purpose to do the thing or cause the result specified or believes the act performed if successful will cause the result. in addition, the defendant must have knowledge of those facts necessary to make his conduct criminal and that are set forth after the word intentionally or intentional. with intent that, with intent to, or intended means defendant had a purpose to do the thing or cause the results specified or believes the act performed if successful will cause that result. it is not necessary that the defendant have this intent in advance, the necessary intent can develop during the commission of the act.
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police officer means an employee of a law enforcement agency, was licensed by the board of peace officer, caused with the detection of crime and the enforcement of the criminal laws of the state of minnesota and has the full powers of arrest. a law enforcement agency is authorized by law to grant full powers of arrest and charge the person with the duties of preventing and detecting crime and enforcing the laws of the state of minnesota. the minneapolis police department is a law enforcement agency. the definition of any word or phrase with a specific legal meaning that appears only once in the elements for the defense will be applied where it appears later. the defendant is charged with murder in the second agree in connection with the death of george floyd. under minnesota law a person causing the death of another without intent to cause the death of any person while
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committing or attempting to commit a felony offense is guilty of the crime of murder in the second degree. the defendant is charged with committing this crime or intense alley aiding in the commission of the crime. the elements of the crime of murder in the second degree are, first element, the death of george floyd must be proven. second element, the defendant caused the death of george floyd. third element, the defendant at the time of causing the death of george floyd was committing or attempting to commit the felony offense of assault in the third degree. it's not necessary the state to prove that the defendant intended to commit the death of george floyd. there are two elements of assault in the third degree. the defendant assaulted george floyd. assault is the intense a infliction of bodily harm or the attempt to inflict bodily harm.
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the intentional infliction of bodily harm requires proof that the defendant unlawfully applied force to another person and this act resulted in bodily harm. the defendant inflicted bodily harm on george floyd. it is not necessary for the state to form the defendant intended to inflict bodily harm, only that the defendant intended to commit the assault and that george floyd sustained substantial bodily harm as a result of the assault. fourth element, the defendant's act took place on or about may 25, 2020 in hennepin county. if you find each of these elements has been proven beyond a reasonable doubt, the defendant is guilty. if you find that any of the elements have not been proven beyond a reasonable doubt, the defendant is not guilty unless you find the state has proven
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beyond a reasonable doubt that the defendant is liable for this crime committed by another person according to the instructions on page eight. the defendant is charged in count two with murder in the third degree in connection with the death of george floyd. under minnesota law a person causing the death of another pi perpetrating an act dangerous to others and convincing a depraved mind without regard for mu huma life is guilty. the defendant is charged with committing this crime or aiding in the commission of this crime. the elements of the crime of murder in the third degree, first element, death of george floyd must be proven. second element, the defendant caused the death of george floyd. third element, the defendant caused the death of george floyd by an intentional act that was imminently dangerous to other persons. a person commits an act
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imminently dangerous to others when the act is highly likely to cause death. fourth element, defendant acted with a mental state consisting with reckless disregard for human life. the defendant's act may not have been specifically intended to cause death and may not have been directed to the person whose death occurred, but must have been committed with consciously indifference. fifth element, the defendant's act took place on or about may 25, 2020 in whennepin county. if you find these actions have not been proven beyond a reasonable doubt, the defendant is not guilty, unless you find the defendant is liable for this
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persons. another person or - the defendant is charged with manslaughter in the second agree in the connection of the death of george floyd. under minnesota law, whereby he takes a risk or consciously takes a chance and causes the death of another is guilty of manslaughter in the second degree. the defendant is caused with committing this crime or aiding in the commission of this crime. the elements of manslaughter in the second agdegree, first, the death of george floyd must be proven. second element, the defendant caused the death of george floyd whereby the defendant created an unreasonable risk and took a chance of causing death or bodily harm. culpable negligence is intentional harm that the
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defendant may not have intended being harmful, but would cause injury to others. third element, the defendant's action took place may 25, 2020 in hennepin county. if you find these elements beyond a reasonable doubt, the defendant is guilty. if you find these elements have not been proven beyond a reasonable doubt, the defendant is not guilty unless you find the state has proven the defendant has committed these crimes. the following instructions apply to all three instructions i've given you. the defendant is guilty of crimes committed by another person or persons if the criminal has played an intentional role and made no effort to stop the crime. intentional role is aiding, advising, hiring counseling,
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conspiring or procuring another to commit the crime. the defendant's presence or actions constitute aiding if the defendant knew another person or persons were committing a crime. second, the defendant intended that his presence or actions aid the commission of that crime. if the defendant intentionally aided another person or persons in committing a crime or intentionally advised, hired, counselled, conspired with or procure the other person or persons to commit it, the defendant is also guilty of any other crime the person or persons commit while trying to commit the intended crime if that other crime was reasonably foreseeable to the defendant as a probable consequence. the defendant is guilty of the crime under this theory of aiding in the commission of a crime by another person or persons only if the other person or persons commit the crime. the defendant is not guilty for aiding, advising, hiring, counseling, conspiring or
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procuring the commission of one of the charged crimes unless that crime is actually committed. the defendant -- the state, rather, has the burden of proving beyond a reasonable doubt the defendant aided another person in committing the charged crime. no crime is committed if a police officer's actions were justified by the police officer's use in the line of duty in preventing a lawful arrest or escape from custody. the force is limited by what a reasonable police officer in the same situation would believe necessary, any use of force beyond that is not reasonable. to determine whether the actions were reasonable, you must look at those facts which a reasonable officer in the same situation would have known at the precise moment the officer acted with force. you must decide whether the
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officer's actions were reasonable in light of the totality of the acts and circumstances confronting the officer. the defendant is not guilty of a crime if he used force as authorized by law. to prove guilt the state must prove beyond a reasonable doubt that the defendant's use of force was not authorized by law. you are the sole judges of whether a witness is to be believed and the weight to give that testimony. in determining believability and weight of testimony you may take into consideration the witness' interest or lack of interest in the outcome of the case. >> obviously the feed out of minneapolis frozen for a moment. we noted there were flakes in the air was alex perez was reporting live. they're having typical
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minneapolis spring weather as the closing artsguments are seto begin. i want to bring in terry austin. terry was with us for opening statements. we expect the prosecution to go first and the defense and then a quick rebuttal from the prosecution. we also expect the video to be seen in part again. we all remember in that opening statement that the prosecution said you can believe your eyes, that it's homicide, it's murder. you can believe your eyes. they're expected to make a very similar closing argument here this morning. >> i would exactly expect that, david. they want to make sure they tie the whole case together starting with the opening obviously referring to some of the witnesses. the whole point of the prosecution is you can believe this video. it was unnecessary force and absolutely the cause of death was the restraint on top of
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george floyd. one thing i wanted to mention. you see judge cahill is doing jury instructions in minnesota under rule 26 you can do the instructions before the closing. some of our viewers might have been thinking the closings would be close. here the judge is opting to give the instructions before the closing. >> we at the desk here in new york were wondering. we thought he would conduct it this way, deliver instructions first. it's believed he go back for a recap after the closings. terry, thank you. i want to bring in terry moran. terry, you were listening in as judge cahill was struinstructine jurors. what struck you as far as the instructions? they were pivotal in the case and had not been made public until this morning and the prosecution and defense are the only ones privy to what the judge might say ahead of time.
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we'll get your thoughts in a moment. we have the feedback. >> this evidence is not to be used as evidence of the character of george floyd. during the testimony of some witnesses the parties introduced demonstrative exhibits in the forms of charts, summaries and animated videos. this information was presented to assist you and aid in your understanding of the witness' testimony and help explain the facts disclosed by the records, other documents, testimony and other evidence received during the trial. if any chart, summary or animated video is not consistent with the facts or figures shown by evidence in the case as you find them, you should disregard the chart or summary or animated video and determine the facts from the underlying evidence. earlier during these instructions i defined certain words and phrases. you're to use those definitions in your deliberations. if i've not did he phefined a w
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phrase, apply the common meaning of that word or phrase. i've ruled on objections to certain testimony and exhibits. you must not concern yourself with the reasons for the rulings since they are controlled by rules of evidence. by admitting into evidence testimony and exhibits as to which objection was made, i did not intend the weight to be given. you are not to speculate as to possible answers to questions i didn't require answered. you are to disregard all evidence and statements of attorneys i ordered stricken or told you to disregard. with that i would ask you to put your instructions under your chair as we listen to closing arguments of counsel.
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>> may it please the court, counsel, members of the jury. his name was george perry floyd jr. he was born october 14, 1973 in fayetteville, north carolina to his parents george floyd sr. and larcenia jones floyd, sissy, the
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may matriarch. you heard about george floyd's mom. she was the mom of the house, the mom of the neighborhood. you heard about the special bond that she and george floyd shared during his life. you heard about their relationship, how he would always take time, special attention to be with his mother. how he would still cuddle with her in the fetal position. you heard that. from george floyd's brother you learned all about george's childhood and during his time growing up in that house, george floyd was surrounded by people, by people he knew, people who knew him, people he recognized. a familiar face to pick out in
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the crowd. people need that. george floyd was surrounded by people he cared about and who cared about him throughout his life, throughout his childhood in that house, through his adolescence, into his adulthood. on may 25, 2020 george floyd died. face down on a pavement, right on 38th and chicago in minneapolis. 9 minutes 29 seconds, 9 minutes 29 seconds. during this time george floyd
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struggled, desperate to breathe, to make enough room in his chest to breathe. the force was too much. he was trapped. he was trapped with the unyielding pavement underneath him, as unyielding as the men who held him down, pushing him, a knee to the neck, a knee to the back, twisting his fingers, holding his legs for 9 minutes 29 seconds, the defendant's weight on him. the lungs in his chest unable to expand because there wasn't enough room to breathe, george floyd tried. he pushed his bare shoulder against the pavement to lift himself, to give his chest, to give his lungs enough room in
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his chest to breathe. the pavement tearing into his bare skin. as he desperately pushed with his knuckles to make space so he would have room to breathe, the pavement lacerating, lacerating, his knuckles. the defendant stayed on top of him for 9 minutes 29 seconds. so desperate to breathe he pushed with his face, with his face to lift himself, to open his chest, to give his lungs room to breathe. the pavement tearing into his skin, george floyd losing strength. not super human strength. there was no super human strengtho super human
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strength because there's no such thing as a super human. those exist in comic books. 38th and chicago is a very real place. not super humans, only humans. just a human, just a man lying on the pavement being pressed upon, desperately crying out, a grown man crying out for his mother. a human being. in that time and in that place, while he was surrounded in life by people he knew, faces he could pick out, there was no one there he knew. he was surrounded by strangers, strangers, all of them, 9 minutes 29 seconds he's familiar fe to say his final
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words. he did say them to someone. he said them to someone who he did not know by name, but he knew him from the uniform he wore and the badge he wore. he called him mr. officer. that's what he called him, mr. officer. mr. officer would help. we call the police when we need help. he pleaded with mr. officer. george floyd's final words on may 25, 2020 were, please, i can't breathe, and he said those words to mr. officer. he said those words to the defendant. he asked for help with his very
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last breath, but mr. officer did not help. the defendant did not help. he stayed on top of him. continued to push him down, to grind his knees, to twist his hand, to twist his fingers into the handcuffs that bound him, looking at him, staring down at times the horrified bystanders who watched this unfold. the motto of the minneapolis police department is to protect with courage and to serve with compassion. george floyd was not a threat to anyone. he wasn't trying to hurt anyone. he wasn't trying to do anything to anyone. facing george floyd that day, that did not require one ounce of courage and none was shown on
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that day. no courage was required. all that was required was a little compassion, and none was shown on that day. george floyd said i'm not trying to win. this was a call about a counterfeit $20 bill. all that was required was some compassion. humans need that. people need that. more fundamental than that and more practical at that time in that place what george floyd needed was some oxygen. that's what he needed. he needed to breathe because people need that. humans need that, to breathe.
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he said that and the defendant heard him say that over and over. he heard him, but he just didn't listen. he continued to push him down, to grind into him, to shimmy, to twist his hand for 9 minutes 29 seconds. he begged -- george floyd begged until he could speak no more and the defendant continued this assault. when he was unable to speak, the defendant continued. when he was unable to breathe, the defendant continued beyond the point that he had a pulse, beyond the point that he had a pulse. the defendant continued this assault, 9 minutes 29 seconds. when the ambulance arrived, the ambulance was here, and the defendant continued. he stayed on top of him. he would not get up.
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he would not let up. he stayed on him, grinding into him, continuing to twist his fingers, to hold him down. he had no pulse. he was not breathing. he was not responsive and the defendant had to know what was right beneath him, right beneath him. c you saw the video. you saw the point when the ambulance arrived and finally after a paramedic got out and the defendant still did not get up and the paramedic tapped him and finally the defendant got up and they lifted mr. floyd on to that gurney and you saw the way he was not -- there was nothing there. his head had to be held to prevent it from falling to the he was complety had to know tha.
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he was there. he was on top of him. he was on top of him. on top of him. sometimes you ask for the truth. st sometimes you insist on the fr truth. the truth was the defendant was on top of him for 9 minutes 29 seconds. he had to know. he had to know. the medical examiner would find the cause of george floyd's death to be cardio pulmonary arrest complicating law enforcement sub dual restraint and neck compression. what you saw the defendant and the other officers doing to george floyd caused his death. the medical examiner ruled the
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death a homicide, death at the hands of another. what the defendant did to george floyd killed him. it was ruled a homicide. the defendant is charged with murder. he's charged with murder and manslaughter. the defendant at the time was a police officer. it may be hard for any of you to imagine a police officer doing something like this. remember in jury selection we talked about bias and setting biases and preconceived notions behind. imagining a police officer committing a crime might be the most difficult thing you have to set aside because that's just not the way we think of police
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officers. we trust the police. we trust the police to help us. we believe the police are going to respond to our call for help. we believe they're going to listen to us. this is strong. this runs deep. it's difficult to set this aside. i want you to consider that, even after -- the by standers after they saw what they saw, after they saw this display of abuse of police power and a man killed in front of them, genevieve hanson called the police. donald williams, he saw this, you heard him. he testified. he called the police. a 9-year-old, what did she suggest? we need to call the police on the police. that's our expectation, even after seeing this, even after witnessing this. our expectation is that the police are going to help.
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and with reason, with good reason, because policing is a most noble profession. it is. it is. to be very clear, this case is called the state of minnesota versus derek chauvin. this case is not called the state of minnesota versus the police. it is not. policing is a noble profession and it is a profession. you met several minneapolis police officers during this trial. you met them. they took the stand. they testified. make no mistake, this is not a prosecution of the police. it is a prosecution of the defendant. there's nothing worse for good police than a bad police who doesn't follow the rules, who doesn't follow procedure, who doesn't follow training, who
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ignores the policies of the department, the motto of the department. to protect with courage, to serve with compassion. chief of minneapolis police took the stand and testified. he told you what that badge that he wears over his heart means. it's a public service. it's a public trust. they're there to help us. it's a professional organization. there are standards. there are rules. there's a code of conduct. there's a use of force policy. there's extensive training. the police are first responders. they're who we call for help and they help us. they have cpr training. there's more training than simply use of force. there's more to policing than putting handcuffs on people and hauling them away.
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there's other kinds of training. there's procedural juice. there's crisis intervention. there's medical training. there's deescalation. all of this training, hundreds and hundreds of hours of tr training. you met the people who staff the training center and they told you we don't train this. they told you that. the sanctity of life and the protection of the public, those are the cornerstones of the minneapolis police department's use of force policy. the protection of the public, all of the public, all of the human beingst t make up the public. the defendant, he didn't do that because that day his badge just
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wasn't in the right place. the defendant was a police officer. he was. again, you need to set aside the notion that it's impossible for a police officer to do something like this. the defendant is on trial not for being a police officer, that's not the state versus the police. he's not on trial for who he was. he's on trial for what he did. that is what he did. that is what he did on that day. 9 minutes 29 seconds, that is what he did. he didn't follow training, those hundreds of hours of training that he had. he did not follow the department's use of force rule. he did not perform cpr. he knew better. he just didn't do better. he just didn't do better. remember during opening statements, counsel said that
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the defendant followed the rules and followed his did you hear evidence of that? did you hear evident of that from the stand? the police of chief testified he violated their use of force policy. he violated their deescalation policy. he violated the duty to render emergency aid. no. you heard the trainer, lieutenant mercell we don't train this. this is not who we are. that representation was simply wrong. that's just a story. what the defendant did was not policing. what the defendant did was an assault. i'm going to discuss the law with you in a bit and explain -- the court's already provided you instructions on second degree
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murder. in the laws of this state, if you committed a certain level of assault, a felony level of assault, and a person dies as a result of your assault, you're guilty of murder. it's as simple as that. what the defendant did here was a straight up felony assault. this was not policing. it was unnecessary. it was gratuitous. it was disproportionate and he did it on purpose. no question. this was not an accident. he did not trip and fall and find himself upon george floyd's knee and neck. he did what he did on purpose. it killed george floyd. that force for 9 minutes 29 seconds, that killed george floyd. he betrayed the badge and everything it stood for. it's not how they're trained. it's not following the rules. this is not an anti-police
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prosecution. it's a pro police prosecution. the defendant abandoned his values, abandoned the training and killed a man. and why? right out in the public. right out in broad daylight, in front of several bystanders as they looked in shock, in horror. why? well, this all started over a call of an allege d counterfeit $20 bill. but george floyd's life was taken for something worth far, far less. far less. you saw the photo. you saw the body language. you can learn a lot about someone by looking at their body
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language. the defendant facing down that crowd. they were pointing cameras at him, recording him, telling him what to do, challenging his authority. his ego, his pride, not the kind of pride that makes you do better, be better, the kind of ego-based pride that the defendant was not going to be told what to do. he was not going to let these by standers tell him what he was going to do. he was going to do what he wanted for as long as he wanted and there was nothing they could do about it. he had his authority. he had the authority of the badge and the other officers. the bystanders were powerless. the defendant chose pride over policing. charles mcmillan, 61 years old,
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interesting man. he had the glasses. in the front row, when he walked by, if you looked at his shoes, you probably saw your reflection in his shoes. he dressed for court like it was the most important day of his life. interesting man. he was there. he was sort of narrating this horrific scene. throughout you hear him in the video. he called out to george floyd. he said, you can't win. you can't win. george floyd replied, i'm not trying to win. i'm not trying to win. i'm scared. the defendant, the defendant was trying to win. he wasn't going to be told what to do. he wasn't going to take a challenge to his authority. he was trying to win. george floyd paid for it with
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his life. now, also you need to be clear, this is not the trial of george floyd. george floyd is not on trial here. you've heard some things about george floyd, that he struggled with drug addiction, that he was being investigated for allegedly passing a fake $20 bill. there was never any evidence introduced he knew it was fake in the first place. he's not on trial. he didn't get a trial when he was alive. he is not on trial here. defense claims he was noncompliant. noncompliant. well, let's revisit what happened before the 9 minutes 29 seconds before that. it was memorial day. may 25, 2020. george floyd is sitting in a car
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in the driver's seat with two friends. now previously he had been in cup foods. he had been in the store. he was walking. he was talking. he was breathing, as alive as any person, any human in this room. back to the car. he's with his friends. there's a tap at the window. he looks to his left and is startled. this is what he sees. this is what he sees. within seconds of the approach, officer lane tapped on the window. within seconds he pulls his gun and holds it inches from george floyd's face and starts shouting profanities, show me your fing
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hands. screaming at him. this is within seconds. you can tell a lot about someone by looking at their body language. how does mr. floyd look in this photo? terrified? officer on the driver's side, officer on the passenger's side, lane orders floyd to put his hands on the steering wheel. he does. that's not resistance. that's compliance. lane orders floyd to get out of the car. he does. that's not resistance. that's compliance. they order him -- they want him handcuffed. he is handcuffed. that's not resistance. that's compliance. on the handcuffs you recall the testimony, they won't properly double locked.
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they continue tor rachet. they're not on correctly. they're on too tight. throughout the videos you can hear the sound of the handcuffs racheting tighter and tighter. mr. floyd is trying to explain to the police that his wrists hurt. impervious to pain. his wrists hurt. no one listens to him, but it continues. they tell him to go over to the dragon walk. he goes over to the dragon walk. tat's not resistance. that's compliance. they ask him to sit down. he sits down. notsi ce. not yi toescape, t yi toarrest tryino sh antaod compliance. sits on the ground. they ask his name. he gives his name. he spells it. that's not resistance.
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that's compliance. they ask him to get up. he gets up. they ask him to go across the street. he goes across the street. where's the resistance? where is that? they take him over to the car. they take him over to the car. george floyd is a big guy. you can see here. i mean he's almost as big as officer lane. he's a big person. the back of the squad car is not. that's what they wanted him to get into. to george floyd that looked -- he looked at that. what do you think that looked like? like a little cage. he tried to explain himself to the officers, that he had anxiety, that he had claus tro phobia. he explained this over and over. they wanted him to get in the
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back of this little car. you know, he just wasn't able to bring himself to do it. he wasn't able to bring himself to do it. >> man, i'm breathing. please. >> put your legs in. >> please. >> he's trying to workup the ability to get in the car. he's explaining himself repeatedly. you can see this is where the defendant and officer thao start coming into the scene. we'll look at what they saw in a minute. they start to come to the scene. a 19-year veteran of the police force, with all the training that involves, over 800 hours of training, 40-hour crisis intervention training course, a
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scenario-based training where they're taught to recognize the scenes of someone who is experiencing a crisis, a crisis. you know, he couldn't bring himself to get in. sometimes people can't bring themselves to get in and this is not new. this is not ground breaking. people have emotions. people have things happen to them. the police train for this. they recognize this. you don't get to meet the police on your best day very often. you don't call the police and say everything's fine just wanted you to know. that doesn't happen. there's a whole range of humanity out there, a whole range of different issues. it could be anything. it could be a death in the family. that can cause extreme emotional response. recall when officer lane approached the car, george floyd
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talked about losing his mother. he lost here in 2018. those wounds still right there on the surface. emotion, it could involve a divorce. finding bad financial news. 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 this 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. recognizing persons in crisis. you remember the chief took the stand. he testified. he testified that they have 4,000 calls for service for persons in crisis every single year. this is nothing new.
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they're 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 that he struggled with an opoid 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. didn't recognize the scenes of what they had prepared for. a reasonable officer in the defendant's place with all his training and all his experience, including that 40-hour crisis intervention course and a subsequent refresher course should have known that and recognized. floyd was trying to get into the car. he said he would workup the courage. he said he would count to three.
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he just couldn't do it. the defendant arrives on the scene. he surveys the scene. he saunters up to the car and he slips on his gloves. >> you can't win, bro. >> please. >> you can't win. >> i'm not trying to win. >> get in. >> i'll get on the ground, anything. >> get in the car. >> he know it. he knows. don't do me like that, man. can you talk to me please? >> get in this car. we'll talk. >> i'm claustroclaustrophobic. >> get in the car. >> can you put me in the front, please? >> no. >> i'm claustrophobic. i'm not a bad guy, man. >> get in the car. >> you ain't going to win. >> so, they don't listen.
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they just shove him into the car, into that 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 seen a monster looking into that car. clearly this trained officer should have recognized that and understood that that moment and that time -- what is your goal? were did this critical thinking model go? you take in information, you assess the information, reassess the information. what's the goal? what's the plan? you're 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 a judgment call. the predictable thing to happen happened. he couldn't be in the back of
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that car. so they pull him out. they pull him out. watch what happens. they pull him out of the car. >> what? please, man. i can't breathe. >> come out. >> thank you. thank you. >> get out of the car. 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 or? thk you. thank you. now a reasonable officer in the defendant's position at that time should have recognized and understood he wasn't trying to
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escape. he wasn't trying to punch n anyone, 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. 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, when he came out 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 on the ground. didn't need to. not at all. for what? he's handcuffed. they pushed him down into what is you know from watching the evidence in this case the prone recovery position. when he's down on the ground, he
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is initially pushed, he's literally in the prone recovery position on the side. that allows the chest to expand and provides room for the lungs to expand and take in air so they can breathe. that is a step that protects against the known danger of positional asphyxia. and they have him there. he's right there. so then what happens after? they take him incredibly out of the recovery position and prone him on the ground. for what? the prone position is a transitory position used to secure someone in handcuffs. when you're done with that, you immediately roll them on their side. that's the position he was in. proning him was completely unnecessary. this is where the excessive
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force begins. this is where the 9 minutes 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 the knee on the back and the defendant's weight on mr. floyd pushing down with officer kueng adding to the pressure pushing down, holding his feet. officer lane was holding his feet for 9 minutes 29 seconds. that's when the excessive force began. that's when the countdown began. now, you need to sort of pull back and take a look. you've learned about policies and procedures and tactics. you have to pull back and say, would but for the defendant's actions, pushing him down, would george floyd have died that day?
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was it drugs? d did he miraculously die of a drug overdose? maybe it was the tail pipe. maybe it was his heart. maybe not. 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've learned -- you got to go to medical school here as jurors. so many benefits to being a juror. you got to go to medical school, free parking, great lunches, fabulous pay. now you get a lilttle bit of a law school education. the judge gave you that.
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he gave you a copy of those instructions. you get to keep those and use those during deliberations. he told you you don't have to decide these issues in any order. you can do it the way you all see fit. i'll be making some suggestions as to the order i think you should do things. focus your deliberations and make the conversation a little easier, little more focussed. 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 that the judge gives you, they mean what the judge says they mean. know that the state is required to prove these charges beyond a reasonable doubt. proof beyond a reasonable doubt. that's proof as ordinarily prudent men and women would act upon. a reasonable doubt is based upon
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reason and common sense. not a fanciful or capricious doubt. it's as the name implies, a doubt that's reasonable. you, as jurors are not required to leave your common sense at the courthouse steps. you must rely on your common sense. that's why you're here. we need you to apply that standard to these facts and to be a judge of the facts and apply those facts, findings of facts, to the law. proof beyond a reasonable doubt is a high standard. it's a standard the state has met here. the state does not need to prove its case beyond all doubt. it does not need to prove its case beyond an unreasonable doubt. not required to prove beyond an unreasonable doubt. an unreasonable doubt is a doubt
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not based on common sense, but based on nonsense. you're not required to accept n nonsense. you're not required to accept the notion after the defendant kneeling on mr. floyd for 9 minutes 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. no force there. it's not likely to produce pain. a witness testified to that. you're not required to believe something that just flies in the face of common sense, to believe that you would have to completely abandon all notion of common sense, not likely to produce pain. you don't have to accept someone who says that. you would be better off asking the 9-year-old.
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you're not required to accept the proposition that the car did it, that the car killed george floyd. you're not required to accept that or to consider that it is the bystanders' fault for distracting the defendant. you're not required to believe this amazing coincidence that after this 9 minutes 29 seconds prone restraint, 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 nonsense? or that it was a drug overdose. you know that george floyd struggled with drug addiction and drug use. you know that.
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you know he had developed -- requires a tolerance. you know what the toxicology report says in terms of the levels and you know what the testimony was about that. he didn't die of a drug overdose. that's not common sense. that's nonsense. believe your eyes. what you saw happen happened. the defendant pressed down on george floyd so his lungs didn't 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, d dr. eisenschmidt. it's like that commercial, they know a thing or two because they've seen a thing or two. they know a thing or two. dr. tobin know as thing or two about how this works.
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looking at the charges and this is a little bit of a different lay out you'll see than in your printed jury instructions. they're not intended to replicate the instructions completely. it's meant to be a guide for you to look at the different elements in a particular context. so, the charge of murder in the second degree, murder in the third degree, manslaughter in the second degree, the judge read you what the law says they are. the law breaks down the different charges into things called elements. first element, second element, third element and each of these has to be proved beyond a reasonable doubt by the state in order for the defendant to be guilty of those charges. now, those are the elements that are required. they're the only elements required. again, like other preconceived notions, you may have some ideas from watching tv about other cases and shows and things.
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you might have other ideas as to what the law requires. again, just like how it's lunchtime in court and the judge tells you it's lunchtime, same thing. you know what the charges are and the elements are because the judge tells you what they are. you need to follow that. talking about murder in the second degree, first, the death of george floyd must be proved. then it must be prove that the defendant caused the death of george floyd. the fact that other causes may have contributed to george floyd's death does not relief the defendant of any criminal liability. it just does not. for murder in the second degree, that the defendant at the time of causing george floyd's death was committing or attempting to commit assault in the third
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degree. that's a felony level assault under the laws of minnesota. assault -- that the defendant intentionally applied unlawful force to mr. floyd without mr. floyd's consent resulting in bodily harm. state has to show that. state did show that. and that the defendant inflicted substantial bodily harm on george floyd and that this act took place on or about may 25, 2020 in hennepin county. so, as to the first element, george floyd died. well, that was established. that was established by the emergency room physician dr. langenfield. george floyd was pronounced dead at the hennepin county hospital on may 25, 2020. that element was met.
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you can consider these elements anyway you want to consider them. my suggestion is that you consider them in the order as listed here, murder two, murder three, manslaughter in the se of the elements because there's a lot here. there were 38 witnesses who testified. there were a lot of exhibits offered. it's easy to talk about everything at the same time. it really is. but it will help focus your deliberations if you look at the 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 anyway you want. second element that the defendant caused the death of george floyd. causation. what does that mean? what does causation mean here? means defendant's act or acts were the substantial causal
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factor in causing the death. he's criminally liable for things that occurred, including those brought about by intervening causes. the fact that other things might have contributed to george floyd's death doesn't relief the defendant of liability. the 9 minutes 29 seconds of compression with his knees on his next and on his back, being held down was a substantial factor in george floyd's death. now, if there was a superceding cause then the defendant wouldn't be criminally liable. superceding causes are causes that come after the defendant's acts and alters the sequences of events and is the sole cause of death. we don't have that here. we know how george floyd died.
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this is the use of force. we talked 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 and the unlawful restraint, the assault, started and how long it lasted. 9 minutes 29 seconds. that's what george floyd -- that's what killed george floyd. that's why he died. believe your eyes. unreasonable force, pinning him to the ground, that's what killed him. this was a homicide. you heard this from forensic pathologists, the experts. you've heard this. dr. langenfield told you that. dr. baker ruled it a homicide. told you the cause and manner of
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death, the restraint and sub dual of law enforcement. dr. tobin, he told you how it happen, the asphyxia. the other doctors dr. smock, dr. rich, they told you how it didn't happen. it was a cardiac event. wasn't a heart attack. wasn't a drug overdose. dr. tobin explained it wasn't carbon monoxide. you know how george floyd died. specifically dr. tobin provided extensive detail and was very clear that george floyd died as a low level of oxygen, this low
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level of oxygen called brain injury and a p.e.a. arrythmia. that's not a heart event. his heart disease didn't cause him to die. it was the low level of oxygen. it was the asphyxia that caused him to die. we know that happened. we know it happened because they observed during the restraint at 20:24:21, they observed an anoxic seizure. they told you that. after mr. floyd experienced the seizure, he passed out. his pulse stopped. his heart stopped. that cardio pulmonary arrest was the result of the police sub dual and restraint. with know from dr. tobin george floyd didn't die primarily from
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a cardiac event as has been suggested. george floyd was not in perfect health. he had narrowed arteries, high blood pressure. no question he was experiencing stress, even before the officers shoved him on to the sidewalk unnecessarily, gratuitously, disproportionately. none of this caused george floyd's heart to fail. his heart failed because the defendant's use of force. the 9:29 deprived mr. floyd of the oxygen that he needed, that humans need, to live. dr. tobin knows because he's a pulmonologist. he's a lung doctor. he's a lung doctor. he is also a respiratory physician. he's the only person able to calculate lung capacity, long
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volume. dr. baker couldn't do it. he deferred to the pulmonologist. dr. fowler couldn't do it. he said he deferred to a pulmonologist. dr. tobin who is also a critical care physician, he spent years treating patients in intensive care experiencing respiratory failure. dr. tobin literally wrote the book on the subject. he was able to tell you, right, what this looks like, what he was able to observe, what he was able to observe was oxygen deprivation. it was asphyxia. it was asphyxia. under the condition that is mr. floyd was being restrained, that the defendant put him in, that cut off his oxygen. it could have cut off oxygen of someone who was perfectly healthy, anyone. the forces used in the situation
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involved multiple factors. george floyd was handcuffed. he was placed prone, shoved prone on a sidewalk. the knees 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. he calculated between chauvin, the defendant, officer kueng pushing down on him, approximately 90 pounds of force. the position and the force combined such that it was as if george floyd's level lung had been surgically removed. that's how much of a reduction of air capacity there was here to the point that mr. floyd was desperately trying to make space to breathe, pushing his
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shoulder, pushing his face against the pavement to lift up, to give space to breathe. his lung capacity based on dr. tobin's calculation, even though you heard studies from the defense saying the prone position wasn't dangerous, dr. tobin disagreed. he said the lung capacity was reduced 24% from 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 20 years, that there's a danger to the prone position. the danger is positional asphyxia. the worst thing that can happen with positional asphyxia is death. it wasn't just the lungs, the pressing up of the neck. when you touched that, it reduced the capacity of air flow
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as if mr. floyd was breathing through a straw. these shallow breaths did not produce enough oxygen. not enough oxygen could get to the lungs. that's what killed george floyd. here's what didn't -- this wasn't a sudden cardiac arrhythmia. dr. smock told you that, dr. thomas, dr. rich, dr. tobin they agreed, not a sudden cardiac arrhythmia. dr. baker, no medical evidence of a heart attack. we heard from dr. rich. dr. rich actually treats people who have heart attacks. he found there was nothing on his review, nothing, in george floyd's heart to suggest that the death originated from the heart. nothing.
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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's somethings -- george floyd was obviously not a perfect man. who is? no one is. 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. you know what the drug level was. you know that from the toxicology report. if drugs are found in the car, they're not in george floyd's system. there's no point in talking about those.
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let's talk about what was in his system. the toxicology report, you heard from dr. eisenschmidt and what he testified was that george floyd's fentanyl to norfentanyl ratio was well below the level of people who die from fentanyl overdose. ge dr. rich and dr. smock, they treated patients under the influence of fentanyl and methamphetamine. they testified these drugs didn't kill george floyd. they didn't. we know he had a tolerance because he used drugs in the past. the experts all agree, the video shows, that george floyd did not die the way someone who dies from a fentanyl overdose dies.
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his breathing didn't slow down. he didn't fall asleep. he didn't go into a coma. this looked nothing like a fatal fentanyl overdose. dr. tobin, the only doctor in this case that calculated george floyd's respiratory rate, and 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. he didn't die of excited delirium. dr. smock, who testified about excited delirium told you, explained to you george floyd didn't exhibit any signs of excited delirium. one of which being super human strength. nonsense. there's no super human strength.
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there are no super humans. impervious to pain, nonsense. you heard him. you saw him. he was not impervious to pain. nonsense. the suggestion that a tumor which is called an incidental tumor, relatively rare, maybe causes headaches. that caused his death? at that particular moment in time, at that place, during that restraint, during that 9 minutes 29 seconds, a tumor that causes headaches 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 headaches. you heard about carbon monoxide, the car killed him.
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dr. tobin came back and explained that this car which had a catalatic converter that was outside, that was a hybrid and there's no evidence was even on, that that did not kill him. he explained carbon monoxide saturation level -- i'm sorry. oxygen saturation level. at 98%, at most it could have been a 2% carbon monoxide same as anybody else, same as people walking around talking, breathing. this wasn't carbon monoxide. that's just a story. it's simply wrong. you don't have to be dr. tobin to recognize this. it's probably nice to be dr. tobin, but you don't have to
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be him to recognize this. you can see this with your own eyes. you can see what happened. he couldn't breathe. he said he couldn't breathe. the defendant was on top of him, on his back, on his neck with his knees pressing down. you saw how his body sort of did he pldeflated into the ground. there were multiple moments in times, ladies and gentlemen, multiple moments in time that things could have gone different and george floyd would have lived. cpr. if he would have left him in the side recovery position in the first place or placed him in the side recovery position shortly after the restraint he wouldn't have died. their own force witness testified that putting somebody in the side recovery position is pretty fast, pretty easy thing to do, not complicated.
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professor stouton said you just move him. could have done that. could have done cpr. had a policy he was supposed to follow, a duty to provide medical aid. you're supposed to do that. even dr. fowler was critical no one started cpr. 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 the defendant decided not to get up or let up george floyd died. these actions were a substantial factor in george floyd's death.
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these actions, make no mistake, were not policing. these actions were an assault. so, as the judge instructed you, for second degree murder -- it's actually very simple. if you find that the defendant committed this third degree assault while committing the assault he charged 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 bodily harm requires proof that the defendant applied unlawful force to anothererho that person's consent iny harm.
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intentional. did it on purpose. he did the thing on purpose. bodily harm, physical pain, illness or impairment of a person's physical condition. again, to be very, very clear, the state does not have to prove that the defendant had the 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 and this was not reasonable force, as i'll explain. george floyd clearly did not
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consent to having the defendant's knee on top of him for 9 minutes 29 seconds. when you hear someone gasping for breath, calling for their mother, begging you to get off, what -- how could you think anything else? he did not consent to this. the state does not have to prove -- we don't have to show that the defendant intended to cause george floyd harm. we don't have to show that. you don't need to find the defendant was trying to cause harm or had the purpose to cause harm to conclude this was an assault. you do not. the state doesn't have to show the defendant intended to violate the law. don't have to show that. we don't have to show that the defendant intended to kill him. the only thing about defendant's intent we have to prove is that he applied force to george floyd on purpose, that this wasn't an accident and it's pretty simple. you know, if you're doing
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something that hurts somebody and you know it, and you keep doing it, dng it on purpose. >> i can't breathe. please. i can't breathe. >> somebody is telling you they can't breathe and you keep doing it, you're doing it on purpose. what else is going to happen when you push somebody down on the pavement? everybody knows this. everybody knows what happens when you push somebody against the pavement. you learn this pretty early on. we learn this pretty early on. assault in the third degree requires that the defendant inflicted substantial bodily
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harm on george floyd, meaning a temporary but substantial loss or impairment of the function of a bodily member or organ, organs. the lungs, the heart. temporary loss of consciousness qualifies as substantial bodily harm. certainly a permanent loss of consciousness would constitute substantial bodily harm. look at this point in the restraint and you see the absence of expression, the absence of muscle tension. he's unconscious. he's lost consciousness. that's substantial bodily harm. he did that. that's his knee. so when you consider the charge of second degree murder, try to break it down into parts.
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find an order. the defendant caused george floyd's death. he did. the state proved that beyond a reasonable doubt. at the time of causing the death the defendant committing or was attempting an assault in the third degree. that's been proved beyond a reasonable doubt. with those being proved in the ve venue, second degree felony murder, the defendant is guilty. going back and talking about murder in the third degree, you can see that there's some elements in common. there's some differences. we've already discussed the first element of the death of george floyd, the substantial causal factor with the second element and then the fifth element about the venue element, may 25, 2020 in hennepin county.
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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. 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 a -- he was consciously indifferent, consciously indifferent, to loss of life that his actions could
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cause. the defendant's act was imminently dangerous to others. it was likely to cause death to mr. floyd. as if common sense in and of itself would not suffice, the da dangers of prone restraint, of positional asphyxia has been known in law enforcement for about 30 years. this is known if common sense wasn't enough. defendant's own use of force witness admits that. again, when we talk about danger, what is the danger? it's death. the medical experts who know a thing or two dr. tobin, dr. smock, dr. rich they agreed the defendant's actions create addcreated a high risk and the defendant's action could cause and did
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cause -- he knew the risks of positional asphyxia. everybody in law enforcement knows that. he had other warnings, not just from training, from people. >> he's about to pass out. >> he's not breathing right now, bro. you think that's cool? what's your badge number, bro? you think that's cool right now, bro? you think that's cool, bro? you're a bum. you're a bum for that, bro. you getting mad. stopping his breathing right now. he can't breathe right ro. >> it was plain and apparent to everyone there what was happening. he was unresponsive. he's passed out. he's not talking. what are you doing? we know that the defendant chose
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not to listen to 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's staying put where we got him. roll him on his side means roll him to the side recovery position. he could have listened to the bystanders. he could have listened to fellow officers. he knew better. he just didn't do better. he knew that kneeling on somebody's neck in addition to the positional asphyxia is dangerous. anyone can tell you that. a 9-year-old can tell you that. did tell you that. conscious indifference,
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indifference. do you want to know what indifference is and sounds like? >> listen! >> i'm claustrophobic. my neck hurts. >> uh-huh. >> everything hurts. water or something. please. please. i can't breathe, officer. >> you're talking. takes a heck of a lot of oxygen. >> come on, man. >> indifference. leisurely picking rocks out of the tire. commenting about the smell of the man's feet who you're pressing down, grinding on as his voice slows and fades as he
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tells youo kil me. i can't breathe. my stomach hurts. my neck hurts. everything hurts. it takes a lot of oxygen to complain about it. indifference. the defendant ever listen? ever consider medical attention? no one defended that decision, the failure to give cpr, not even dr. fowler. this isn't this isn't courage. it's certainly certainly was not compassion, it was the opposite of that. so back to the ins emes third murder.
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yourlv, did the defendant ask 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 r reckless disregard for human life. a conscious indifference to the loss of life that the dangerous act could cause. yes, he did. and you'll find based on 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 and again you can see that there's some elements in common. the third is common with the other charges. so what's different about manks laugter in second degree? the defendant caused the death of george floyd by culpable negligence, where created an unreasonable risk and consciously took a chance of causing death or great bodily harm and again, do not need to prove -- the state does not need to prove that he intended to -- that he intended to kill george floyd. culpable negligence, intentional conduct that the defendant may but that ordinary a prudent recognize as involvi atrong
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prability of injuriean see exac happening. the bystanders who were at the scene looked for themselves and it was plain to them they took video, you saw it, it was plain to you, strong probability of injury and with the defendant his specialized knowledge about the dangers of positional asphyxia and the common sense that if you put your knee on somebody's neck a strong probability of injury, he knew that, too, great bodily harm, bodily injury that creates a high probability of death. permanent or protracted loss of impairment of a bodily member or organ. the heart. the lungs. the loss of consciousness. would an ordinary and reasonably
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prudent person know that this is dangerous? everybody who watched knew it was dangerous. a 9-year-old saw that it was dangerous. the defendant knew exactly what he was doing because he was right on top, 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's a duty to provide medical assistance, that duty includes not only calling the ambulance for somebody else but that you have to use your knowledge, your training, as a first responder. you're required to perform cpr. it's a requirement. he failed to do it. he had the training, he knew how to do it. you've seen his training records. exhibit 119. take a look at all of the
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inservices, all of the hours, he knew what to do. he knew better. he didn't do better. he wouldn't even left the off-duty firefighter 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, where he took an unreasonable risk of causing death or great bodily harm, you'll find that element has been proved beyond a reasonable doubt, that he is guilty of second degree manslaughter. guilty of all three charges. so, after all of this you he anothequ you have to addrs.
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after see all is finding the sa 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 the police officer may lawfully use in executing his dutduties, limite what a reasonable police officer in the same situation would believe to be necessary and force beyond that is just not reasonable. you look at the facts of a reasonable police officer in the same situation would have known at the precise moment that the
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officer acted with force. looking at the totality of the facts and circumstances to see whether these actions, the defendant's actions were objectively reasonable. was this reasonable? no. you just saw the instruction that 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 is in this manner, on the ground, prone, handcuffed, knee on the neck, knee on the back, body weight on top of him, start with the premise that in fact was a use of force, the defense called a witness who actually testified that that was not a use of force because that was not likely to produce pain. no.
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no. not true. likely to produce pain, actually produced pain. you know, the problem with terms like superhuman 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. and let's discuss the standard what a reasonable police officer do. okay, what would a reasonable police officer do? you don't look at this from george floyd's perspective, okay, it's not a reasonable victim would do, you don't look at it from the bystander. not from the defendant's perspective either. you hook at the perspective from
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the reasonable officer. and it's 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'll recall that. here's what he said. >> okay, that was his justification for this level of force. he's a big guy, he's a sizable guy, he might be on something we have to control him. control is the restraint. that's the force. okay, his two justifications were that george floyd was big and that he might be on something. well, you know the standards,
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you've heard the standards many times, you know the difference between a risk and a threat. officers are authorized to use force to respond to a threat, they're not authorized to use force to respond to a risk. anybody poses a potential risk. big, small, in between. everybody's a risk. not everybody's a threat. being large the act of being large is not a crime, it's not a risk -- sorry, it's not a threat, it's merely a risk. being on something, being on something -- it's not a threat. it may be a risk but it's not a threat. and force is not authorized against someone merely because they're on something. and when questioned their force
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expert witness conceded that the combination of the two being large and being on something is not justification for the use of force. it just isn't. that's not what they get to do. so the defendant's entire basis, his explanation to charles mcmillan at the time, at the scene, right afterwards, after he got up off of mr. floyd,s toed him on the green and walked away like it was nothing that was his explanation. it's not good enough. it's not procedure. it's not the use of force policy, it's not following the rules. we talked a lot about things that might have happened, could have happened, potentials, hypotheticals. talked a lot about stuff that didn't happen.
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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 should have recognized that. they do it all the time. they had him handcuffed, they had plenty of resources, they had four officers, a fifth one in the distance, he was handcuffed behind his back, he wasn't going anywhere, he didn't need to put in a prone position, a temporary position to facilitate handcuffing, the defendant stayed on him, grinding his knees into him, pressing down on him, continuing to twist his arms and wrists so it would buck up against the handcuff. the infliction of pain. d that's not authorized by the
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minneapolis police department. kneeling on top of someone on the head and neck. if you're going to restrain someone like that, completely holding them down, the policy authorizes the use of the rip hobble. they didn't do that. the policy about applying the hobble, you have to put the person immediately in the side didn't they do that?ou know, wh- the conduct didn't warrant it. they knew it. they didn't want to get a sergeant -- have to get a sergeant down there to do a force review, it's memorial day, you heard that. a they just held him in this
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dangerous position against policy. a reasonable officer wouldn't do that. a reasonable officer follows the rules. a reasonable officer follows the training. the risk of death is deadly force. and you recall the defense ta tactics, deadly force is not authorized in this situation, no force when someone is passed out, on the ground, unresponsive, no. you really can't even claim that mr. floyd was engaged in passive resistance at this point, remember charles mcmillan kept saying, get up and get in the car. george floyd said, i will. i can't. he doesn't even have the opportunity. he's saying he'll get up and get in the car. he's not given the opportunity to do that. that's not resistance that's
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>> force must be reasonable. it must be reasonable at the point it starts, at the point it ends, and all points in between, officers are required to reassess the situation, to re-evaluate the situation, to take in the information and react to it. the zest didn't do it. the defense has made the argument that the crowd justified the defendant's use of force, like the blame should fall on the bystanders for displaying concern over a man's life. what? but this was a distraction, that there was some concern, the defendant doesn't appear too concerned. it wasn't the bystanders' fault, a 19-year police veteran, a

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