by Andrew Branca
Today we saw the closing arguments for the state delivered by Prosecutor Steve Schleicher, the closing argument for the defense delivered by (of course) Defense Counsel Eric Nelson, and the rebuttal closing for the state delivered by Prosecutor Jerry Blackwell.
FINAL JURY INSTRUCTIONS
I haven’t yet obtained the final jury instructions in written form (if anybody has them, pass them on), but here’s the video of those final instruction as read to the jury today by Judge Cahill. There are two sets–the instructions given before closing arguments began, and then some administrative instructions after closing was over:
PROSECUTOR STEVEN SCHLEICHER: STATE CLOSING ARGUMENT
Prosecutor Schleicher’s closing was pretty standard, although with the usual triple-dose of emoting we’ve come to expect in politically energized prosecutions of this type, and perhaps a double dose of even that due to Minnesota’s unique provision for allowing “spark of life” evidence during the guilt phase of the trial. To say those portions of his closing were saccharine would be an understatement.
That said, the bulk of Schleicher’s closing was a incremental step-by-step look at the three counts the jury is to consider—second-degree (felony) murder along with the predicate felony 3rd-degree assault, 3rd degree murder, and 2nd degree manslaughter. Schleicher used a table with the counts on the Y-axis and the elements along the horizontal to guide the jury in their analysis.
All of that is entirely reasonable. I may disagree substantively with the inferences that Schleicher chooses to suggest from the evidence, and it’s unavoidable that he mentions only the evidence favorable to the state’s theory of guilt, but that’s all how the game is designed to be played—after all, there’s a reason why the defense exists to do its own heavy lifting on convincing the jury that the state has failed to prove its case beyond a reasonable doubt.
For your viewing pleasure, here is the video of Schliecher’s closing:
DEFENSE COUNSEL NELSON: DEFENSE CLOSING ARGUMENT
Defense Counselor Nelson’s closing argument was unusually lengthy, at nearly three full hours (!), but frankly I don’t see how that could really be avoided. If you’ve seen my view of a likely narrative of innocence (or, at least, not guilty) for the defense, it was also very lengthy. There are just a lot of issues circling this case that need to be addressed by the defense.
Overall, I think Nelson did a very good job in hitting those key issues on closing, although he definitely seemed to tire by the end, and the 30-minute break for lunch mid-closing didn’t seem to help his pacing any.
Indeed, one place I felt Nelson very much fell short might have been solely a matter of running out of time and gas. One of the more challenging portions of the entire timeline of Chauvin’s restraint of Floyd is that last 90 seconds between when Keung states that he can’t find a pulse and when the paramedics arrive on scene and take over. Proponents of guilt routinely argue, with some merit, that even if Chauvin’s restraint was justified up to the point of no pulse, surely it was no longer justified after that point.
There are definite arguments that can be made by the defense consistent with innocence. Here are a couple of examples.
First, just because Keung stated he couldn’t find a pulse doesn’t mean that Chauvin himself was actually aware of that condition. Chauvin was positioned so that he was much more exposed to the by then very angry and loud crowd, and it’s quite possible that his attention was distracted by the apparent hostile intent of the crowd and he was not actually aware of Keung’s inability to find a pulse.
Second, however, even if Chauvin was aware of Keung’s finding, there was the apparent threat of the crowd itself. Chauvin had already had to display his OC spray once, an obviously angry MMA expert fighter Williams was stepping off the curb and advancing on the officers, and today in rebuttal even Prosecutor Blackwell acknowledged that the crowd could easily have taken control of the scene from the officers, but for their “respect for the badge.”
So, even the state concedes that the threat from the crowd was real, even though they also sometimes claim the opposite view.
What matters, however, is not whether the state concedes the risk, but whether there’s evidence to support a reasonable officer in Chauvin’s position to have a reasonable fear of harm from the angry, hostile, and threatening crowd, and there is.
In this context, you may recall that MPD Medical Training lead MacKenzie, a state’s witness, had testified that CPR should be stopped, or if not yet begun then not started, if the scene became unsafe. That is, CPR should not be engaged in until the scene had been made secure. That was clearly not happening in those 90 seconds between no pulse and the paramedics arriving.
A reasonable officer in Chauvin’s position might well have concluded that there safety of himself, his partners, and even of Floyd, were sufficiently in imminent harm that it would be imprudent to uncuff Floyd and attempt to begin CPR in the presence of a hostile crowd. This is especially so, given that paramedics were expected momentarily, and would have a securable vehicle in which to treat Floyd.
Now, reasonable people can disagree with either of those two rationales for why a reasonable officer in Chauvin’s position might not have begun CPR on Floyd in the 90 seconds between Keung being unable to find a pulse and the paramedics arriving. That’s not really my point.
Rather, my point is that Nelson didn’t really argue that point. He did mention several of the relevant factors, such as the angry, hostile, and threatening crowd, and that there was only 90 seconds between no pulse and paramedic arrival, but he didn’t stitch those isolated facts into a coherent rationale for not immediately initiating CPR the moment Keung was unable to find a pulse.
As you might expect, that was a vulnerability eagerly exploited by Prosecutor Blackwell, who conducted the prosecutor’s rebuttal.
For your viewing pleasure—and leave yourself just under three hours for this!—here’s the defense closing by Nelson:
PROSECUTOR JERRY BLACKWELL: STATE REBUTTAL CLOSING
Prosecutor Blackwell’s closing was, to this lawyer’s eyes, where the dynamite was packed into this day—mostly because it appears to me that Blackwell laid a strong foundation for a defense claim of prosecutorial misconduct.
Indeed, the defense made an oral motion for a mistrial on this basis, and while Judge Cahill hemmed-and-hawed about the appropriateness of Blackwell’s conduct, he ultimately responded as he’s done with every other defense motion for a mistrial—denied.
The basis for a claim of prosecutorial misconduct here is that Blackwell repeatedly suggested to the jury that the defense was outright lying—and a prosecutor is not allowed to make such arguments in closing in a criminal trial. Indeed, a prosecutor is far more constrained in making such suggestions about the defense than is the defense in making similar suggestions about the state.
This greater constraint reflects the greater apparent authority that a state prosecutor, representing the government, brings to the courtroom relative to a defense attorney merely representing a criminal defendant.
It’s worth recalling, on this point, that Blackwell is not really a prosecutor in the normal course of his legal career. Rather, he is a professional civil litigator who was brought into this case on a pro bono basis as part of the politics around this prosecution.
As a civil litigator, Blackwell would normally have a very broad privilege to attack the credibility or even integrity of opposing counsel’s arguments—a breadth of privilege that when applied in the context of acting as a prosecutor can easily slide into misconduct sufficient to warrant a mistrial or reversal of conviction even standing alone.
To my eye it looked as if Blackwell felt as if he were merely striking back at suggestions made by Nelson in his closing statement that the state was not being entirely truthful in its interpretation of the evidence in this case. It was as if Blackwell was outraged at what he might have felt was being labelled a liar and decided to give just as good right back.
Unfortunately for Blackwell, just as the burden of proof in a civil trial is equally shared between the parties—a preponderance of the evidence—but the burden of proof in a criminal trial is wildly (and appropriately) balanced against the state—beyond a reasonable doubt—the degree to which the defense in a criminal trial can suggest less than complete honesty on the part of the state is wildly greater than the extent to which the state can do the same to the defense.
Under Minnesota law this issue of prosecutorial misconduct is governed by the state supreme court decision of State v. McDaniel, 777 N.W.2d 739 (MN Supreme Court 2010) which provides in relevant part:
A prosecutor has special responsibilities as a representative of the people. Specifically, in final argument to the jury, a prosecutor is governed by a unique set of rules which differ significantly from those governing counsel in civil suits, and even from those governing defense counsel in the very same criminal trial. These special rules follow directly from the prosecutor’s inherently unique role in the criminal justice system, which mandates that the prosecutor not act as a zealous advocate for criminal punishment, but as the representative of the people in an effort to seek justice. Prosecutors must avoid inflaming the jury’s passions and prejudices against defendants. Although a prosecutor can argue that a particular defense has no merit, a prosecutor may not belittle the defense, either in the abstract or by suggesting that the defense was raised because it was the only defense that might succeed.
And Blackwell sure engaged in his fair share of belittling the defense argument. While not calling Defense Counsel Nelson a liar to his face, he belittled the defense argument as a mere “story” that, unlike reality, should not be given credence.
Even one such implication would be improper, but might be let slide by defense counsel. Two or three are grounds for an objection, and Nelson did object at that point, and had that objection upheld by Judge Cahill. But Blackwell simply would not stop—in all he contemptuously belittled the defense argument as a mere “story” roughly 20 times.
And that is way over the line.
Further, Blackwell falsely attributed arguments to the defense that they simply had not made, creating strawman arguments that when presented by a state prosecutor have the effect of calling out the defense as outright liars, although here it was the state doing the lying.
Blackwell also falsely characterized the actual testimony of witnesses, claiming they said things they hadn’t said, or purporting to paraphrase their testimony using different words that profoundly changed the apparent meaning and weight of the testimony.
He also went so far as to suggest that reasonable inferences of the evidence made by the defense—specifically, that squad car 320 was running when Floyd was placed prone beside the vehicle—was a statement made without evidence because there was no testimony from any witness that the vehicle was running.
This could easily be understood to be a claim that the defense was wrongfully making claims of fact absent any evidence—in other words, that the defense was just making crap up—but in fact, it’s perfectly fine for anyone to make reasonable inferences from available evidence, and Nelson explicitly inferred the vehicle was operating based on the body worn camera showing that the driver never reached for the keys to turn off the vehicle once it pulled up at Cup Foods.
Really, this entire manner of argument by Blackwell struck me as one made by a person who didn’t believe the merits would carry them to beyond a reasonable doubt, and thus was compelled to resort to fabrication and ad hominem attacks in an effort to win—both of which are conduct in which perhaps other attorneys might engage, but which is prohibited for prosecutors.
Here’s Blackwell’s rebuttal, for your viewing pleasure:
And here’s the brief motion for a mistrial based on prosecutorial misconduct made by Nelson, and the denial of that motion Judge Cahill:
AMBIGUITY ON THE LEGAL DOCTRINE OF CAUSATION
Another interesting bump in the road—perhaps most interesting because it was left until so late in the day, was a profound disagreement between the state and the defense on the question of the legal doctrine of causation as it applies to the facts and law of this case.
What’s most surprising is not that the parties disagree on this issue—that hardly seems avoidable given the complex, multifactorial facts at play here—but that the disagreement only became concretely apparent after the defense had presented its closing argument.
The crux of the issue is that Chauvin is criminally liable for Floyd’s death only if his conduct was a substantial cause of that death, and if it was a substantial cause it need not be the only cause in order for criminal liability to attach.
Simply enough? Not so fast. At least, not on the facts of this case.
In a typical criminal offense scenario, the question of causation might appear in a fact patten such as this hypothetical:
A Robber armed with a tire iron steps out of a doorway and confronts the Victim, demanding that the Victim turn over his money or suffer grave injury. The Victim leaps backwards to move out of reach of the tire iron.
Unfortunately for the Victim, he leaps off the curb, into the street, and is promptly run over and killed by a city bus.
Did the Robber kill the victim? Not directly—after all, the Robber never even touched the Victim. The Victim would never have simply jumped backwards and into the path of the bus unless he had been prompted to do so by the Robber’s threat. In that sense, the Robber’s threat was a substantial cause of the Victim’s death.
Now let’s imagine a different scenario. Now we have a Nun seeking donations for the local orphanage, and she steps out of the church doorway to make such a request of a Pedestrian coming down the street. The Pedestrian, looking at his smart phone while walking, is startled by the sudden appearance of the Nun. Unknown to either the Nun or the Pedestrian, the Pedestrian has a genetic pre-disposition to cerebral strokes that can be triggered by a surprise event—and sure enough, startled by the Nun, the Pedestrian suffers a fatal stroke and dies there on the sidewalk.
Did the Nun kill the Victim? Well, not directly, for sure. But was she substantial cause of his death, nevertheless? After all, but for the Nun startling the Pedestrian, the Pedestrian would still be alive.
The difference between these two scenarios, of course, is that in the case of the Robber and the Victim, the Robber was the sole cause of the reaction of the Victim—jumping into the path of the bus. But in the case of the Nun and the Pedestrian, the Pedestrian brought his unique vulnerability—the unknown predisposition to stroke—with him.
In the case of the in-custody death of Floyd, the defense position is that Floyd is akin to the latter scenario, rather than the former.
That is Floyd did not die as a result of a downstream event that occurred because of Chauvin’s restraint—which in the defense view would not have caused the death of an otherwise healthy suspect subject to the same restraint—but rather Floyd died because of the combination of his extremely vulnerable physiology with his toxicology, both of which were not caused by Chauvin but which Floyd brought to the event with him.
In that view, if Floyd was actually killed by his physiology and toxicology, then he was not killed in a substantially causal way by Chauvin’s restraint—and therefore to prove beyond a reasonable doubt that Chauvin’s restraint killed Floyd, the state is first obliged to disprove beyond a reasonable doubt that Floyd was killed by his physiology or toxicology. If they fail to disprove beyond a reasonable doubt that Floyd was killed by his physiology or toxicology, Chauvin is not legally liable for Floyd’s death.
How could Chauvin kill someone that had already killed themselves with a drug overdose?