Chauvin Trial Day 7 Wrap-Up: a horrible day for the prosecution

Material that could easily result in acquittal, and riots if it’s not being widely broadcast in other coverage of the trial.

Lt. Mercil works in the MPD training division in charge of use-of-force training and policy instruction. He was active in that capacity during the period preceding the Floyd events during which Chauvin would have received his department use-of-force training and policy instruction, which is what makes Mercil’s testimony relevant.

Mercil is also a genuine fan of Brazilian Jiu-Jitsu (BJJ), saying (as many practitioners do, in my experience) that he had “fallen in love with the sport.”  This was elicited on direct, led by Prosecutor Schleiter, no doubt to buttress Mercil’s credibility, as was the direct testimony of Mercil about his expertise in hand-to-hand force techniques as both a trainer and a street cop, and his mastery of MPD use-of-force policies.  Little did Schleiter know how Mercil’s credibility would shortly boomerang on the prosecution.

Schleiter did his usual routine, where he portrayed use of force options as being cast in absolute and binary terms.  If A, then B, if X then Y. Any variance of this was either out of MPD policy or at least “untrained by MPD” (an entirely different matter than being outside policy), and hence “wrong-act.”

Schleiter made use of the MPD use of force continuum, and presented it in the most childish and sterile context possible.  If at this level of the continuum, officer can do this, but not that, correct. Mercil dutifully answered in the affirmative. But if at that level of the continuum, officer can do that, but not this. Again, yes.

Schleiter would also pose simplified and hypothetical scenarios only minimally representative of what occurred with Floyd and ask if the use of, say, a neck restraint in that hypothetical would be reasonable.  Of course, the answer from Mercil, as intended that narrow and specific question, would be, no, unreasonable.

Missing from all of this direct, of course, was any context around the complex dynamics and circumstances that often surround a police use of force event.  That Schleiter wants to avoid any such discussion is understandable, because doing so provides an appearance for at least reasonableness, if not outright justification, for Chauvin’s use-of-force decisions and conduct with respect to Floyd.

Another common routine from Schleiter when doing direct on state’s witnesses who have any purported use-of-force expertise is to show them the photo of Chauvin apparently (but perhaps not actually) kneeling on Floyd’s neck and asking, “Is this an MPD trained neck restraint?”  Invariably the answer is in the negative.

That makes for a good headline, but in fact it’s not very informative on the actual issues of the case.  Why? Because just because a technique may not be an “MPD trained” technique does not make it outside of policy, does not mean it was legally unjustified, and certainly does not mean it contributed to Floyd’s death—which is what the trial is supposed to be all about.

Once again, Schleiter touched on positional asphyxia, and once again I feel obliged to note that this doesn’t really help the state prove Chauvin’s guilt beyond a reasonable doubt in the context of Floyd’s ingestion of a three-fold fatal dose of fentanyl.  Certainly, if I had to choose between two situations, one in which I was placed in a prone position while handcuffed for 10 minutes, and another in which I was forced to ingest a three-fold fatal dose of fentanyl, I know which I’d pick, and quickly. There’s simply no reasonable comparison between those two risks to life.

So, the direct of Mercil was really just more of the Schleiter show we’ve already seen with other state’s witnesses.  Kind of checking the boxes, but not even all the boxes needed to support the state’s narrative of guilt—and always by only exposing the jury to half the context, which is a dangerous ploy.

Basing your narrative of guilt on only half the context is a dangerous ploy because we, thank God, enjoy an adversarial legal system, and that means the defense gets to pop right up and expose the jury to the other half of the context, the half consistent with a narrative of innocence—and, in this case, they get to do so with your own witness.

And that’s precisely what happened with Mercil, and in a big, big way.

Nelson began by asking questions related to Mercil’s time as a street cop, with a particular emphasis on the tendency of suspects being subject to arrest to come up with all kinds of nonsense about why they shouldn’t be arrested that day.

Dangerous job, being a police officer? Yes. Are people generally unhappy about being arrested? Very rarely are they happy, Mercil answered.  Do suspects frequently engage in a wide variety of behaviors to avoid arrest, including fighting, arguing, making excuses?  Yes, they do, answered Mercil.

Indeed, when asked if he himself had ever disbelieved a suspect’s claim of a medical emergency as an apparent effort to avoid arrest, Mercil answered that he personally had done so.

All of this, of course, undercuts the part of the prosecution narrative that is relying on Floyd’s purported pleas and excuses about claustrophobia and anxiety and crying out for mama. Perhaps all of that is real—but a reasonable officer must also consider that maybe much of it is simply an effort to avoid arrest.

Nelson also once again put the use of pressure and body weight techniques in a favorable light. The state wants to present Chauvin’s knee in a negative light, as deadly mechanical asphyxiation, or as a “blood choke” as attested to by MMA Williams.  In fact, however, the use of pressure and body weight to restrain a suspect was adopted by the MPD because it was a lesser intensity of force than the prior practice of using strikes—either barehanded, or with batons, or even with weighted gloves—to compel compliance.  Mercil concurred.

The take home message for the jury is that Chauvin’s knee, far from being a public execution in a public street, was a lesser force than would otherwise have been required.

Whereas Schleiter wants to pretend that all of Chauvin’s use of force and other decisions should have been based solely on the needs and desires of Floyd, Nelson once again had the state’s witness concede that under the MPD critical decision-making model the officer must consider a wide breadth of factors beyond just the suspect, including the officer himself, his partners, any bystanders—especially angry or threatening bystanders.

Schleiter had described use of force in a very static and binary way—once a suspect stops resisting, the officer should immediately stop his use of force, period. But Nelson got Mercil to agree that if that suspect had been forcibly resisting the officer only moments before, that would be a factor weighing in favor of continuing to apply force even after apparent resistance had ceased.

That is, it’s not just what’s happening in the moment that counts, but what happened prior to that moment, as well.  (Schleiter pulled this trick again with the last witness of the day, a Jody Stiger from LAPD acting as an expert witness for the state, and I don’t expect it to work out well there, either.)

Additional factors that a reasonable officer would take into account in deciding how much force to apply and for how long included a disparity in size between the officer and the suspect—and as we know, the 6’ 6” 230-pound Floyd was substantially larger than the 5’ 9” 140-pound Chauvin—as well as the circumstance in which a suspect not only fought police, but fought multiple officers—exactly as Floyd did in this instance.

When asked if additional use-of-force factors included if the suspect was believed to be on drugs, and whether being on drugs could give a suspect exceptionally great strength, Mercil agreed to both statements.

When asked explicitly if any of the video of the event showed Chauvin placing Floyd in a “choke hold” (in this context meaning a respiratory choke but the term has been used with careless disregard for accuracy) Mercil was obliged to answer that it did not.

When asked if a carotid choke, or what MPD would refer to as an “unconscious neck restraint” required both of the carotid arteries to be compressed, Mercil answered that it did. So much for MMA expert Williams’ testimony to the contrary.

Further, when asked how quickly unconsciousness occurred when a carotid choke was placed, Mercil answered “less than 10 seconds.”  Clearly, then Floyd was not being subject to a carotid choke for the large majority of the 9 minutes or so Chauvin had his knee in place, and likely never during that period.

When asked if Mercil trained officers that a suspect who had become unconscious could regain consciousness, get back into the fight, and perhaps even be more aggressive than previously, Mercil responded that he did.

This, of course, is a rationale for Chauvin maintain his knee across Floyd’s back even after Floyd lost consciousness.

As noted above, Nelson also explored with Mercil whether there were circumstances in which it would be appropriate for an officer to maintain a neck restraint for a substantial period of time, and Mercil conceded that there were.

Sometimes to maintain the neck restraint for however long it took EMS to arrive, asked Nelson? Mercil answered that he, personally, had maintained restraint on suspects for the duration required for EMS to arrive.

To ensure the point: The state’s own use-of-force expert testified on cross that he personally had engaged in use-of-force conduct that the state had been using to demonize Chauvin as an unlawful killer. That’s not a good day for the state.

Nelson also again re-emphasized the reality that the officer involved in a use-of-force event must consider not just the suspect, but also the presence of an angry and growing mob observing what might well look like an ugly use of police force, and Mercil agreed that was the case.

On the issue of providing timely medical care, an issue the state pushes with particular energy, Nelson had Mercil agree that while MPD policy is to provide care as soon as possible, that must take into consideration the safety of the scene, and that the MPD policy actually requires that it first be safe for the officer to provide care before the officer has the duty to provide that care.

Indeed, factors such as whether a suspect had just been fighting with the officers was huge in determining whether an officer could reasonably provide care—especially if that “care” would be chest compressions requiring the suspect to have their handcuffs removed.  Mercil answered in the affirmative.

Later, on re-direct, Schleiter would attempt to diminish the damage of this bit of testimony by asking Mercil if bystanders merely taking videos would constitute a reason to not provide care. The answer, of course, was no.

But that merely provided Nelson with the lay-up opportunity on re-cross to ask whether a mob shouting insults and outright threats would constitute such a reason—and that was conduct of the mob in this event—and the answer to that, of course, was yes.

Similarly, Nelson hit back on the state’s emphasis on the whole “recovery position” narrative in the context of hypothetical positional asphyxia.  Might there be circumstances that would prevent putting a suspect in a recovery position?  Mercil answered that there were.

If that all sounds bad enough for the prosecution, you ain’t seen nothing yet.

It was at this point that Nelson showed Mercil a series of photographs captured from the body worn camera of Officer Lane, and showing Chauvin’s knee on Floyd from the angle down Floyd’s proned body.

Photo 1: Where’s Chauvin’s leg in this image? On Floyd’s neck? Or on his shoulder blades and back. Mercil: Shoulder blades and back.

And in photo 2? Same. Photo 3? Same. Photo 4? Same.

This, of course, fundamentally undercuts the prosecution’s narrative of guilt that it was Chauvin’s knee on Floyd’s neck that killed Floyd.

Are there circumstances like those already discussed where would be appropriate to maintain presence of leg across shoulder blades and back in order to ensure control of the suspect?   Yes, there are, Mercil answered.  For as long as 10 minutes?  It’s possible.

Ouch.

In other words, the use of the restraint can be justified not only to compel compliance of the suspect in the first place, but to ensure that the suspect maintains compliance moving forward—especially given the experience and concern that unconscious suspects can revive and be even more violent than they were prior, even if that restraint is being held in place for as long as 10 minutes. And that’s not just for the safety of the officer, but also for the officer’s partners, for bystanders, and even for the suspect himself.

Just devastating for the state’s narrative, and all of it coming from the state’s own MPD use of force expert.

And there’s more. RTWT.

 

Source: Chauvin Trial Day 7 Wrap-Up: a horrible day for the prosecution

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