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

by Andrew Branca

OVERVIEW: “911? I’D LIKE TO REPORT A MURDER.”
 
Today was a terrible, horrible no good, very bad day for the prosecution, to a degree that I haven’t seen since the trial of George Zimmerman.
 
If you have no more than an hour to watch the video of today’s proceedings, then I urge you to spend 44 minutes watching the cross-examination of state witness Johnny Mercil, the state’s use-of-force training expert, and 22 minutes watching the cross-examination of Nicole MacKenzie, the state’s medical care training expert. In both instances the result can only be called a train wreck of a disaster for the prosecution.
 
Indeed, after the judge dismissed Mercil from the witness stand, Prosecutor Schleiter appeared visibly shaken and angry—and he ought to have, given the mauling his case just received.  At one point Mercil testified the he himself had personally kept a suspect physically restrained until EMS had arrived on scene, behavior which the state has been arguing for over a week was misconduct on the part of Chauvin.
 
Even worse, not only did the cross-examination of MacKenzie by the defense also go badly for the prosecution, it went so badly that Nelson informed the court that he intended to re-call MacKenzie as a defense witness when he presented his case in chief.
 
There were two other witnesses today, neither of which went particularly badly for the state, although in the case of one of them I expect it was only because the prosecution was saved by the bell when the court recessed early in the day—that doesn’t save the prosecution, that witness will be back tomorrow, and I anticipate that the defense is going to have a field day with him on cross-examination, as well.
 
MORRIES HALL 5^TH AMENDMENT ARGUMENT
 
But first some housekeeping. Before the jury was brought into the courtroom we heard some discussion about the complication of Morries Hall, the reported drug dealer in the Floyd’s Mercedes SUV, announcing he was going to plead the 5^th if called to testify in the Chauvin trial.
 
Hall has a real problem.  If he provided Floyd with the drugs that likely were actual cause of death, under Minnesota law Hall is looking at 3^rd degree murder.  Naturally, he doesn’t want to testify in the Chauvin trial only to have that testimony used against him in his own trial.
 
There’s no doubt that Judge Cahill will respect Hall’s right to assert the 5^th.  The only question is whether there might be some areas of questioning in which Hall could participate that do not incriminate him.
 
This seems to me unlikely, and of course Hall’s own attorney doesn’t want him to be compelled to say a word about anything, but Judge Cahill has asked the defense and state to write down the questions they’d like to ask Hall, and Cahill will decide if any of them will be allowed.
 
Incidentally, it’s worth noting that Hall “appeared in court” via video, and his background looked like jail to me—cinderblock walls, visitor notification signs, etc.
 
In any case, that’s where things sit with Mr. Hall.
 
STATE’S WITNESS:  MPD SERGEANT KER YANG, CRISIS INTERVENTION TRAINING COORDINATOR
 
I’m not going to spend much time here on Sergeant Yang, both because his testimony wasn’t very interesting, and because I want to get right to the juicy cross-examination of Mercil, and MacKenzie.  I’ll only note that Yang’s testimony, focused on crisis intervention policies of MPD, did little to advance any narrative of guilt for the state, especially after the defense on cross of Yang was able to get him to concede that all these policies were contingent on practicability and safety of the scene.
 
In the interests of thoroughness, however, here’s Yang’s direct, cross, and brief re-direct testimony.
 
Yang Direct Questioning
 

 
Yang Cross-Examination
 

 
Yang Re-Direct
 

 
STATE’S WITNESS:  MPD LIEUTENANT JOHNNY MERCIL, USE-OF-FORCE TRAINER
 
OK, with Yang out of the way, let’s jump into the first explosive state’s witness of the day, MPD Lieutenant Johnny Mercil, presented as the state’s expert on MPD use-of-force policy and training.
 
Interestingly, Mercil testified at the start that he was currently on medical leave.  A prior state witness police officer, Sergeant Evans, I believe, who took over the Floyd scene from Sergeant Ploeger, had also testified he was on leave. Maybe just a coincidence.
 
In any case, when not on medical leave 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.

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