Chauvin Trial Day 4 Wrap-Up: Another Poor Day for Prosecution, Advantage Defense

 
By Andrew Branca

Before I jump into the substance of today’s testimony, I’d like to make a concession, or at least a change of opinion, with respect to Defense Counsel Nelson.  During jury selection there were numerous instances in which it appeared to me that he was being overwhelmed not just by the quantity of prosecution counsel—there are 10 or 12 prosecutors working this case, and only one Nelson—but also by the quality of prosecution counsel.  The concern I had was that perhaps Nelson was simply not up to this case.

My concession is that after watching Nelson working in the trial proper, I’ve been extremely impressed by his performance.  While it’s hard to score the lawyer until the very end of the case, because you never know what they might be intentionally delaying as part of trial strategy, or how they’ll perform when it is time for them to be on offense during their case in chief rather than on defense while the state calls witnesses, I’m pleased to be able to say that Nelson is performing at a level vastly greater than I’d feared might be the case.

So, Counselor Nelson, I tip my hat.  With that out of the way …

OVERVIEW

Today’s court proceedings brought us five more state witnesses. Once again, none of today’s state witnesses appeared to substantively advance the state’s narrative of guilt—never all that clearly stated even in opening statements—and all provided gems useful to the defense narrative of innocence (or, at least, and more technically accurate, of non-guilt).

Today’s witnesses consisted of one Courteney Ross, Floyd’s co-addict lady friend, Seth Bravender, the driver of the ambulance that arrived on scene and a paramedic, Derek Smith, the second paramedic on the ambulance, Jeremy Norton, a Captain on the Minneapolis Fire Department, and David Pleoger, the now retired MPD Sergeant who was in charge of the officers involved with Floyd’s arrest.

STATE’S WITNESS: COURTENEY ROSS, CO-ADDICT, LADY FRIEND

The first of the state’s witnesses today was Courteney Ross, who shared Floyd’s drug addiction with him (they met as addicts), and who has been variously characterized as Floyd’s girlfriend or fiancé.

I’ll note that it’s been my experience in these politically charged cases that often the most tenuous of romantic relationships may get recast as a formal betrothal, to provide some social credit that might otherwise not exist, and it’s impossible to really determine the true nature of the relationship. Accordingly, I’m falling back to my grandmother’s description of such things, and referring to Ross as Floyd’s “lady friend.”

Direct questioning was conducted by Prosecutor Matthew Frank, and of course cross by Defense counsel Eric Nelson.

At this point it perhaps goes without saying that Ms. Ross also had a catastrophic emotional breakdown on the witness stand, complete with sobbing and gasping and tears.  She partly explained her reaction by noting how devastated Floyd had still been over the loss of his mother, appealing to the video of Floyd calling out “Mama!” as he died. This whole bucket of emotional appeal would take on a very different air once Ross was subject to cross-examination, as we’ll see.

Generally speaking, Ross testified with the kind of evasiveness we’ve come to expect from state witnesses, including telling part rather than the whole truth in response to defense questioning, claiming she couldn’t recall what she’d previously told investigators and compelling the defense to refresh her recollection with transcripts—and this only goes one way, it seems, the only forgotten prior testimony is that which would be helpful to the defense—and so on.

I already covered two of the most notable aspects of Ross’ testimony in our BREAKING post this morning, which you find here: Chauvin Trial BREAKING: “Mama” Was George Floyd’s Nickname For His Drug-Sharing Girlfriend

In that blog post I wrote about the revelation, disclosed on cross-examination by the defense, that Floyd’s pet name for Ross, and the moniker under which he had her listed in his cell phone was “Mama.”  Was she the “Mama” he was calling for while restrained on the street.

I also wrote about Ross recounting that Floyd had experienced a previous overdose in March 2020 taking pills similar or identical to those he took on May 25, during which she had to bring him to the hospital because he was experiencing intense stomach pain—much as he was experiencing on May 25 when restrained by police after self-ingesting a bunch of these pills in an effort to avoid their discovery by police.

Further, Ross herself had back in March taken some of these same pills and reported to investigators that she thought they were going to make her die—much like Floyd was saying he felt he was going to die while restrained on May 25 after his self-ingestion of similar pills.

She noted that her “normal” opioids were relaxing and took her pain away, but these strange pills acted as a stimulant, such that she was jittery and couldn’t sleep all night. She had also told investigators that in that March overdose she observed foam around Floyd’s mouth—just as his mouth was foaming on May 25.

This is important evidence, because of the state’s argument in opening that it couldn’t have been the fentanyl in Floyd’s system that killed him, because fentanyl (an opioid) makes people sleep when they overdose on it, and Floyd was clearly not sleeping.

To the extent the drugs ingested by Floyd also contained methamphetamine, however (and we know that the found pills contained both), then they also contained a stimulant, which could explain Floyd’s energized state in forcibly resisting lawful arrest against multiple officers for some 10 minutes.

The meth would also explain why Floyd’s pupils didn’t demonstrate the pin-prick constrictions of fentanyl overdose, but were instead dilated—a condition the state used to argue, again, that it could not have been fentanyl that killed Floyd–the dilation would be induced by the meth component of the drugs.

All of this, of course, suggests an alternative cause of death other than Chauvin’s knee, and that is the self-induced overdose of Floyd via that pill ingestion on May 25.

Cross-examination also revealed that Ross had told investigators that she believed Floyd to have been “clean” (off drugs) for a substantial period of time leading up to May 25, perhaps right up until just two weeks prior to his death.

This “clean” period suggests all kinds of considerations with respect to the question of tolerance, which in turn touches on whether Floyd had such a high tolerance to his drugs of choice that even a three-fold fatal dose might not be able to kill him.

I hesitate to dive into these issues in depth, because I claim no expertise in the medicine of illicit drugs, drug addiction, or tolerance, other than that gained by interaction with addicts and those who treat them.

That said, I don’t believe tolerance works to make an addict more resilient against death by overdose, but merely makes it harder to get the desired high.  The mechanism of death by overdose and the mechanism of the high are fundamentally different. The brain develops tolerance to the drug and so requires a greater concentration of drug to get the same high. But that has nothing to do with how the drug kills. In the case of fentanyl, death is usually the result of the drug achieving a level sufficient to stop respiration—and I don’t believe the body develops any tolerance to that biological mechanism.

In other words, if an addict first needs 2 units of drug to get high, he’ll eventually need 4, then 8, then 10, etc.  But if a fatal dose is 20 units, then whenever the addict hits 20, he dies, and it matters not a whit how much tolerance he’s developed in the context of getting high. Indeed, one of the great dangers to addicts is that they grow ever closer to fatal overdose as their increasing tolerance to achieve a high demands doses that approach ever closer to fatal levels.

Again, however, that’s a layman’s understanding of these issues. I look forward to hearing expert testimony during the trial.

We also learned from Ross that the passenger in Floyd’s car, Maurice Hall, the man who had earlier tried to pass a bad $20 bill to the clerk in Cup Food and been rebuffed, was apparently Floyd’s drug dealer, or at least one of them.

This provides some insight to why that man’s legal counsel suddenly announced yesterday that if his client was called to testify in Chauvin’s trial he would refuse to provide testimony and would plead the 5^th.  If I were the drug dealer involved with a fatal overdose of a client, I suppose I’d be pleading the 5^th, as well, as I’d be liable to a murder conviction.

Interestingly, the pills that caused Floyd’s hospitalization because of intense stomach pain, and that acted as a stimulant on Ross, back in March, were essentially identical to the pills consumed by Floyd on May 25, 2020, the day of his death.

Note that if the state wanted Hall to testify, that is if Hall’s testimony was going to be favorable to the state and increase the prospects of convicting Chauvin, the state could simply immunize Hall and compel him to testify. The fact that the state is not doing so strongly suggests that they have reason to believe Hall’s testimony would be favorable to the defense and decrease the prospects of convicting Chauvin.

Justice, much?

Re-direct of Ross by Prosecutor Frank came across as particularly weak.

He asked Ross if Floyd had died in his March overdose taking essentially the same pills—obviously he hadn’t—as if this meant that it was physically impossible for Floyd to have died of the same pills on May 25. After all, the overdose in March merely hospitalized him, surely that means they can’t kill him, right?

Oofah.

Unfortunately for Frank, Ross’ response to this line of inquiry only helped the defense—how often does that seem to happen with these state witnesses?  When he asked her, in effect, he took the pills in March and they didn’t kill him then, right, she answered: “No. In fact, he had a lot of energy.”  Again, driving home the role of the stimulant methamphetamine component of the drug cocktail in all of this.

Here’s the video of Ross’ testimony on direct, cross, and re-direct:

Ross Direct Questioning

Ross Cross-Examination

Ross Re-Direct Questioning

STATE’S WITNESS: SETH BRAVENDER, PARAMEDIC, HENNEPIN EMS

The second of the state’s witnesses today was Seth Bravender, the driver of the ambulance that responded to the Floyd scene, and a paramedic who helped provide care to Floyd as well as driving him to Hennepin County Medical Center (HCMC).

Direct questioning was conducted by Minnesota Assistant Attorney General Erin Eldridge, apparently one of the few of Attorney General’s Keith Ellison’s actual staff attorneys whom he trusted to participate in the case (most of the other prosecutors on the case are high-end private attorneys brought in specifically for the purpose).  Cross examination was, of course, conducted by Defense Counsel Eric Nelson, the only attorney on the defense “team.”

An early interesting reveal in Bravender’s direct testimony arose when Eldridge asked him to describe his training. He noted that he’d first been an EMT, and that required relatively little training, a 6 credit college course, but that now he was a paramedic, and that took a year-long course of instruction.

This is notable because while MPD officers will have had some first aid training, they are not trained to even the level of an EMT (the standard for the Minneapolis Fire Department).  That means that the first-aid training of MPD is way, way below that of the paramedics who were en route to the Floyd scene with code 3 lights and sirens.

Would it be reasonable for a police officer, trained below EMT standards, to simply wait the mere couple of minutes he expected it to take for the highly trained paramedics to arrive, rather than attempt to provide basic first aid in a busy street and in the presence of an angry and hostile mob threatening imminent physical violence?

I would think so.

It’s also notable that Bravender noted that the time interval between receiving the code 2 (non-emergency medical call) and the code 3 (emergency medical call, lights and sirens) was only about a minute and a half.  It wasn’t as if the officers on scene waited 10 minutes before escalating the call from code 2 to code 3.  They saw that Floyd had bloodied his nose in resisting arrest, called the code 2, then within 90 seconds escalated that to a code 3 when they realized Floyd was in greater distress than a bloody nose could explain.

That strikes me as pretty prompt.

Bravender also provided important testimony that buttressed the defense argument that the angry, hostile, and imminently threatening crowd was an important factor in decision-making at the scene.  Bravender and his paramedic partner Smith both quickly decided to do a “load and scoot” on Floyd, rather than attempt to treat him on site, in part (I expect in whole) because of the presence of the angry mob.

The state tried to undercut this view of the mob in two rather dishonest respects.

First, they kept asking if anyone in the mob had actually attacked the officers or paramedics.  Of course, that’s not the point.  The mere presence of a threatening mob is sufficient to influence decision making, without having to experience an actual attack.

Second, Eldridge repeatedly conflated the matter of “moving” Floyd into the ambulance, where the paramedics; equipment was located, and “moving” Floyd three long blocks away from the scene before providing care so that the mob could be escaped.

By conflating these two, she suggested that the reason for the move was to better provide Floyd with care, and by implication not to escape the mob.

Providing better care is certainly the reason to move Floyd into the ambulance. It’s clearly not the motivation for providing him only limited (one paramedic) care until the ambulance has driven three long blocks away.

A key theme hit by Eldridge repeatedly through her direct of Bravender was the notion that Floyd’s death was the result of a delay in beginning chest compressions, and by implication therefore the death was a result of the police not beginning chest compressions earlier.

After all, however limited their medical training, anybody can do simple chest compressions. This failure constitutes an unlawful killing!

Of course, this begs the question that the officers knew chest compressions were appropriate and necessary, and likely to make a life-saving difference.

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