Posted by Curt on 8 April, 2021 at 7:51 am. 4 comments already!


by Andrew Branca

Today’s testimony began with the continuation of the direct questioning by Prosecutor Schleiter of Sergeant Jody Stiger, of the Los Angeles Police Department, who has been retained by the state prosecutors as an expert witness on use-of-force tactics and policy.
You’ll recall that the direct of Stiger began yesterday afternoon and ran for 30 minutes, until Judge Cahill decided to call it a day.  That direct continued today for about another 45 minutes, before the witness was turned over to the defense.
Here’s a leading indicator that state-paid use-of-force expert witness Stiger was ultimately more favorable to the defense than he was to the prosecutors who’d paid him $13,000 to provide his expertise to help convict Chauvin:  Whereas the State spent about 75 minutes questioning their own expert, Defense Counsel Nelson spent more than 90 minutes doing so.
That’s right, so fond was the defense of the State’s expert, so strongly did the defense believe that the testimony of the State’s expert favored Chauvin, that they spent 20% more time engaged with that expert in front of the jury than did the prosecutors.
In fact, the disparity is even worse if we only look at substantive questioning.  Any party who calls an expert witness has to take time to establish the expert’s credentials, training, experience, and then also the methodology used by the expert to form their opinion.  In this case that took the state a full 20 minutes, meaning they only questions Stiger substantively about his expert opinion for 55 minutes.
In that context, the defense actually spent 65% more time with the State’s expert witness, in front of the jury, engaged in substantive questioning, then did the State that paid that expert.
Folks, when the disparity in engagement is that great, I’m not at all sure that the State shouldn’t refer Stiger’s bill over to the defense for payment—certainly by the end of his expert testimony it sure felt like Stiger was more a defense expert than a state expert.
I do want to make clear up front that Stiger did right by his client and said the magic words they wanted him to say:  In effect, that in his expert opinion, to a reasonable degree of legal certainty, Chauvin’s use of force on Floyd was excessive.
Fair enough.
But there are, of course, two sides to la egal fight in our adversarial system, and today with Stiger subject to the cross-examination of Defense Counsel Nelson we got to see the other side of the argument.

So, let’s jump right in.
Once again, the prosecution sought to present the jury with a narrative of events stripped of all context and circumstances—and I’ll say again I find this to be a terribly flawed legal strategy, because inevitably the defense gets to jump up and present the rest of the context.  The result can only be a loss of credibility of the prosecution in the eyes of the jury.
In this instance, Schleiter framed the use-of-force narrative in an extremely narrow sense by defining what he called the “period of restraint,” essentially the period from when Floyd was proned on the street until the Chauvin turned Floyd over to the paramedics, a period of some 9 minutes and 29 seconds.
The reason for this framing is to suggest that everything else that had happened with Floyd prior to the start of the “period of restraint” should be considered off the table for the purposes of evaluating the reasonableness of Chauvin’s use of force.
This is, of course, utter nonsense.  A suspect who has been 100% compliant with arrest throughout is fundamentally a different (and much lower) risk for officers than is a suspect who has violently fought multiple officers for 10 minutes, to the point where the officers concluded their efforts to make a lawful arrest were futile.
To pretend that the officers who had just fought the violent suspect for 10 minutes are supposed to erase that experience from their brains the moment the suspect appears to have ceased resistance is simply ridiculous, even childish.
Another trick suddenly employed by the prosecution today is to move the goal posts on what they claim was Chauvin’s precise physical misconduct. Throughout the entire week and a half of the state presenting their case in chief they have been claiming that Chauvin placed his knee on Floyd’s neck.
Initially, according to the state witness MMA “expert” Williams, the placement of the knee on the neck constituted a “blood choke,” a use of deadly force upon Floyd. Later, the defense argued that this was constricting Floyd’s ability to breath, initially by compression of the neck, later by compression of Floyd’s whole body, and then all that augmented by purported “positional asphyxia.”
All those arguments were, of course, presented as if Floyd did not have a three-fold fatal level of fentanyl in his system, which effectively also kills via asphyxiation.
This line of argument took a body blow from the defense, however, when Nelson began displaying images of the knee placement from different angles showing that Chauvin’s knee appeared to be on Floyd’s shoulders and back, rather than on Floyd’s neck. Indeed, Lt. Mercil, the state’s expert on MPD use-of-force training and policy explicitly agreed on cross-examination that this appeared to be the case.
So what’s the state to do when a key facet of their narrative of criminal conduct is contradicted by their own expert?  Move the goals posts, of course.
Today, however, Prosecutor Schleiter and his state-paid use of force expert Stiger began to avoid the claim that Chauvin’s knee was on Floyd’s neck, and instead started referring to Chauvin’s knee being on Floyd’s “neck area.”
What’s the “neck area”?  Well, the shoulders and upper back!
Again and again we heard Schleiter and Stiger refer to “neck area,” “neck area,” “neck area,” as if repeating it often enough would fog our minds, and the minds of the jury, and we’d simply be unable to realize that the goal posts had been moved.
Pro-tip: Don’t do this in legal argument, especially if you know your direct questioning of your well-paid expert witness is going to be immediately followed by Defense Counsel Nelson’s cross-examination.  We’ll cover how Nelson dealt with this act of sleight of rhetoric in a moment.
Another trick used by Schleiter to strip context from the dynamic confrontation with Floyd was to have expert witness Stiger reference the MPD policy on use of force, and read off three bullet points that policy highlights as guidance for a reasonable officer.
Specifically, those bullet points indicated that in deciding upon a use of force the officer should consider the severity of the crime at issue, whether the suspect poses an immediate threat of safety to the officer or others, and whether the suspect is actively resisting.
These are all reasonable guidelines for use-of-force.  Schleiter’s deception, however, was to present these three bullet points as if they were not merely guidelines, but the entirety of the MPD use-of-force policy framework.  As presented by Schlieter, these three bulleted factors were the only factors a reasonable officer should consider in determining use-of-force.
In fact, of course, these three factors are merely three important considerations within the broader totality of the circumstances. Arguably, an infinite number of additional factors could reasonably play a part in use-of-force decision making.
Again, this act of deception by Schleiter was doomed to fail the moment Nelson got ahold of Stiger on cross-examination—and it did fail. We’ll cover that in more detail in a moment.
Schleiter pulled out another trick when he attempted to diminish the value to the defense of the presence of the angry mob threatening imminent violence at the scene.  Specifically, Schleiter likes to suggest that a mob isn’t threatening or something to be concerned about unless they are actually throwing rocks or bottles, or actively attacking the officers.
So Schleiter will ask his witness, did you see the crowd throwing rocks or bottles or attacking the officers? And ,of course, the witness answers no, because the mob wasn’t doing that.
But is that the only conduct by a mob that can lead a reasonable officer to perceive a substantive threat of physical danger, to himself, his partners, EMS, even the suspect for whom the officer has a duty of care (to the extent mob attack interferes with that care)?  Of course not.
Just as was the case with the bullet points falsely presented by Schlieter as representing the totality of factors an officer must consider, similarly throwing rocks and bottles and actively attacking do not constitute the totality of ways a mob can be threatening.
If you’re thinking Nelson had fun with that line of questioning on cross, you would be correct. More on that, again, in a moment.
In fact, we’ll do it right now.
For future reference and viewing pleasure, here’s the video of today’s direct questioning of Stiger by Prosecutor Schleiter:
Stiger Direct Questioning

The first shocker in all this was that despite the huge significance of this case, and the national profile it has seized, the state apparently managed to choose as a use-of-force expert witness someone who had never testified in any state or Federal court as a use-of-force expert witness.
I know you’re thinking I mistyped that, so I’ll repeat it:
Sergeant Jody Stiger, the state’s highly paid use-of-force expert witness retained to share his expertise with the jury in Minnesota v. Chauvin, one of the highest-profile police use-of-force prosecutions in American history, has never before testified as a use-of-force expert witness in any state or Federal court.
This. Was. His. First.
To say I just about fell out of my chair when I heard that would be an understatement.
It almost boggles the mind.  Can the state really have thought it a good idea, in a case of this magnitude with such stakes—literally, both Chauvin facing possible life in prison and urban centers all over the nation facing an explicit threat of widespread rioting, looting, and arson—to retain as their use-of-force expert witness someone who had never before testified as such in court.
Does that make any sense?
Why? Is it possible they literally could not find another use-of-force expert witness willing to provide the testimony they wanted? This was their last option for the narrative they wanted told to the jury?
I don’t know if that’s the case, and of course I couldn’t know.  If there’s an alternative explanation for how Sergeant Stiger got this of all cases to be his first outing as a use-of-force expert witness in court, however, I can’t imagine what it might be.
I will tell you this much, as someone who does expert legal consulting work myself, and that is that like any skill, you get better at it the more you do it.  I’m a vastly more capable legal consultant on use-of-force cases in 2021 than I was in 1996, because of my accumulated experience.  To put it another way, my first effort was nothing as capable as my most current effort.
And that lack of experience showed starkly in Sergeant Stiger’s first effort testifying in this case.  That’s not a knock on Sergeant Stiger, who came across as quite likeable, it’s simply a reflection of the reality that experience matters, and in the context of providing use-of-force expert testimony in court, Stiger came into this trial with literally zero experience.
Zero. Experience.  And it showed.
Nelson also touched on the fact that Stiger’s entire personal use-of-force experience was with the Los Angeles Police Department and the state of California, and not the use-of-force laws and policies of Minnesota.  When pressed on this, Stiger answered that police use-of-force policies were pretty much standardized across the entire country—but this reply would be contradicted in later cross-examination by none other that Sergeant Stiger himself, hwhoow offered or conceded to a variety of ways in which police use of force varied between jurisdictions.
Even more shocking to me, as someone who does expert consultancy and reports and such myself in my own work, Stiger’s preparation for his opinion, and his recollection of his own work product, was astonishingly sub-par.
In the context of the MPD training and policy materials he considered in coming to his opinion, for example, Nelson managed to disclose that the many videos embedded in MPD training slide decks were never considered by Stiger. Why not? Because Stiger had received PDFs of those slides, not the actual Powerpoint decks themselves, and so the videos could not be played.
I don’t even know what to say about that.
Folks, I charge a lot of money for my legal consulting work, and one of the reasons I do so is because when I take on a case I look at everything. Every. Thing. Nothing goes unconsidered. I can’t imagine looking at a subset of training materials and providing a purported expert opinion on the central issue in a trial that could see a man sentenced to 40 years in prison.
Another possible sign of Stiger’s lack of experience was the nature of the written report of his opinion that he’d delivered to his clients, as the work product of his $10,000 expert fee (later supplemented with a $3,000 court appearance fee).
Stiger’s total report of his expert analysis and opinion amounted to a total of 461 pages.
Impressive, right? Sounds like $10,000 worth of work product to me.
Except … of those 461 pages, fully 95% were appendices, mere attachments of the MPD training and policy materials that had been sent to Stiger by the prosecutors themselves.
Only 26 of the 461 pages were substantive analysis and opinion.
We’ve probably all heard the expression that all a consultant does is take your watch, glance at it, and tell you what time it is, and Stiger certainly got that part of the job right.
In another indication of Stiger’s poor grasp of the content on which he was supposed to be expert for purposes of his testimony in this trial, at one point Nelson began digging into the specific MPD use-of-force policies central to deciding if Chauvin’s conduct was reasonable, on the one hand, or worthy of a 40-year prison sentence, on the other.
As part of that discussion, Nelson focused on one particular policy, asking Stiger to confirm if that was policy number 5-303. In fact, that is one of the key MPD use-of-force policies in this case.
Stiger. Did. Not. Know.  He literally told Nelson, “I don’t know the exact number.”’
Again, I just about fell out of my chair.  It’s not like Stiger was having a casual conversation about MPD use-of-force policy at a dinner party. He’s accepted $10,000 to write a 26-page report on precisely these policies, and another $3,000 to show up in court and testify about them, in case with a multi-decade prison sentence and widespread rioting on the line—and he couldn’t remember the number of the key policy in that analysis.
Next Nelson switched over to asking Stiger about the US Supreme Court case of Graham v. Connor, one of the seminal USSC cases on police use of force.  By the way, if you’ve never read it, you should, and you can find it here:  Graham v. Connor, 490 U.S. 386 (US Supreme Court 1989)
When Stiger had been pressed about variances in use-of-force law across jurisdictions, he’d pushed back by claiming that they were all basically the same, because they were all based on the legal standard of Graham v. Connor.  Well, that’s true, on a macro sense, but it’s far from true on a micro sense, and in use-of-force law, folks, the details matter. A lot.
Nelson began this discussion of Graham by first using it to gut Prosecutor Schleiter’s earlier claim that the three highlighted bullet points in the MPD use-of-force policy—severity of crime, threat of suspect, resistance of suspect—were the only factors to consider.  He did so by first having Stiger confirm that MPD policy was thoroughly based on Graham v. Connor, something Stiger could hardly deny both because MPD policy explicitly cited Graham and Stiger himself had just claimed that all law enforcement use-of-force everywhere was based on Graham.
Then Nelson dug into Graham. Isn’t it true that Graham is not limited to three bullet points of consideration in deciding if a use of force by police is reasonable?  Well, yes, answered Stiger.
Isn’t it true, Nelson asked, that Graham itself says that the test of reasonableness under the 4th Amendment is not subject to exact definition, but requires careful attention to the facts and circumstances of each case, essentially quoting directly from Graham. That’s correct, answered Stiger.
And isn’t that because an officer’s use-of-force decision may well include those three bullet points highlighted by Schleiter, but it certainly is not limited to them? Again, the state’s own highly-paid use-of-force expert was obliged to agree.
In fact, asked Nelson, here again essentially quoting Graham, isn’t it true that the calculus of reasonableness must allow consideration of many factors and that officers are often forced to make split-second judgments in circumstances that are rapidly evolving.  Right again, agreed Stiger.
In fact, the officer needs to consider the totality of the circumstances.  Yes, answered Stiger.  The subject’s actions. Yes. Before, during and after the use of force. Yes. Everything the officer knew at the time. Yes, again.
There are many layers to use-of-force decision making, including general training, the general surroundings of the event, the specific surroundings of the event, the type of force used, how long, the officer’s perceptions and actions, the suspect’s actions, officer training, personal experience, tactical advantages and disadvantages.  Yes to all that, agreed Stiger.
Also, scene security, suggested Nelson, the safety and security of the officer, his partners, the public generally. Again, yes.
At this point it really began to feel like Stiger had been retained as a defense expert witness on use-of-force, rather than retained by the prosecutors who had actually paid him.
But it got worse for the prosecution.
Nelson asked if it wasn’t true that there were certain situations that by their very nature created an exceptionally heightened concern on the part of responding officers.  Like a domestic.
Or like a robbery, or a shooting, Stiger helpfully suggested.
Sure, answered Nelson. So, sometimes an officer might have to be prepared for an increased risk.
I wouldn’t agree with that, said Stiger.
Oh? Explain
An officer should be prepared for the highest level of risk in every encounter.
So, every time an officer responds, there’s an inherent risk, it’s the nature of policing, and a reasonable officer has to be prepared for the risk level to change?
Stiger: Correct.
It’s hard to imagine more helpful testimony for the defense.
Nelson also again hit the point that MPD use-of-force policy was not a simple, binary framework, if A then B, if X then Y, as Schleiter suggested to the jury, but that in fact every single facet of that policy had qualifications.  If time allows, as safety permits, and so forth.  Again, Stiger was obliged to agree.
Nelson: Police don’t look at force in a vacuum, do they?  Stiger: We should not. I look to the totality of the circumstances.
Among those circumstances, Nelson suggested, was what the officer knew going into the call important, correct?  Correct, answered Stiger.
Do you agree that in this case, Chauvin was responding to a priority 1 call, backing up other officers (both of whom were brand new rookies, incidentally), code 3, lights and sirens, to deal with a suspect who was as much as 6 ½ feet tall and believed to be under the influence?
Reasonable for the officer to rely on that information, as it sets the stage, the inherent risk of responding to that call?
Stiger: Yes.
Is the fact of Floyd’s size of particular concern, asked Nelson?
I wouldn’t say so, said Stiger.
Oh? Explain.
Well, Stiger answered, I’ve seen even small suspects be even more dangerous than large ones.
Holy. Cow. In other words, it’s not a case where an officer should not infer greater risk from a large suspect, it’s a case where an officer should infer that same risk from even small suspects.
Nelson then asked Stiger about the extent to which the information in the 911 call should have informed Chauvin’s decision-making. To this, Stiger responded that he had never heard the 911 call.
You read that right:  the state’s highly paid use-of-force expert witness had never bothered listening to the 911 call that set this entire police response in motion, and which was the foundational information the officers brought with them in responding to the scene.
I. Can’t. Even
But then Nelson scored huge when he dug into the specific knowledge that Chauvin brought with him to the scene, and in particular what level of force that knowledge would have privileged Chauvin to use against Floyd.
Chauvin had heard a priority 1 call, knew force was being used, heard scuffling over the radio, knew other officers were engaged in a fight, was called as backup to support them, knew the suspect was possible impaired, and 6 ½ feet tall, and when he arrived he saw Floyd and twow officers at the back of the squad car, with the Floyd actively resisting their lawful efforts to place him in the squid car. Agreed?
Agreed, said Stiger.
Under your analysis of the MPD use-of-force continuum and policies, is it true that Chauvin would have been privileged to simply draw his Taser and use it on Floyd, to stop Floyd’s active resistance.
Yes, answered Stiger.
Nelson: But he didn’t do that.
Stiger: No, he did not.
Lesson for the jury: Chauvin not only didn’t use excessive force throughout his encounter with Floyd, he didn’t even use as much force as MPD policy allowed for.  Instead, he used less force.
Naturally, the prosecution will make the legitimate point that just because Chauvin declined to use maximum permitted force upon arrival at the scene doesn’t necessarily mean he didn’t use excessive force later on, when circumstances had changed, but this was compelling cross of the state’s witness by any reasonable measure.
Then we had another incident in which Stiger seemed woefully poorly informed about his own $10,000 26-page report.  Nelson asked if Stiger himself had not concluded in his report that the efforts of Lane and Keung to compel Floyd’s arrest had, because of Floyd’s active resistance, ended when they realized the “futility of their efforts.”
Stiger objected that he didn’t remember using those words in his report.
Would referring to your report refresh your recollection? Hands over the report. Stiger looks at it read, nods.
Oh, yeah, I did say “futility of their efforts.”
Folks, again, it’s not like Stiger didn’t know he was going to be testifying about his report today, nor that his report was, let’s face it, all that lengthy.  I just don’t understand how he could be so poorly prepared.
Then Nelson dove into Stiger’s personal experience in making arrests of suspects. Isn’t it true that sometimes suspects lie in an effort to avoid arrest? Yes. They’ll bargain? Yes. They’ll make up complaints of distress? Yes. Should an officer consider not just the words, but also the actions, to see if those are consistent with the words?  Yes.
When Floyd began saying that he couldn’t breath, wasn’t he at that moment violently fighting with the officers to prevent them from putting him in the squad car?  Yes.  Isn’t that conduct inconsistent with not being able to breath? Yes.
Lesson: the officers had good reason to believe that Floyd’s claims of difficulty breathing were a fabricated claim of medical distress.
Diving into Stiger’s personal experience on this issue, Nelson asked him if while making an arrest Stiger had ever had a suspect feign a physical ailment. Yes. Fake a heart attack. Yes. An officer has to consider if those claims are lies? Yes.
About Floyd’s denial of drug use during the arrest, Nelson asked if Stiger had observed white around Floyd’s mouth and whether that was consistent with someone using controlled substances? Yes. Common for users to deny use? Yes. Officers need to take that into account? Yes.
To counter the prosecution’s suggestions to the jury that Chauvin’s use-of-force could no longer be justified once Floyd was handcuffed and prone, Nelson asked Stiger if a suspect in handcuffs can still be a threat?  Yes, answered Stiger. They can bite, kick, run. Yes.
They can get the officer’s weapon? Yes. Even if handcuffed. Yes.
The notion that a handcuffed suspect is no longer a threat is not correct, a handcuffed suspect can continue to present a risk? Yes, answered Stiger.
Then Nelson scored what many may perceive to be an important point, albeit I’m rather ambivalent about this one.  Nelson played a short piece of video in which Floyd is prone on the street, and speaking in his muttering fashion.
What’s Floyd saying there, asked Nelson? Is he saying “I ate too many drugs”?  Stiger answers he can’t tell.
No worries, Nelson is happy to play it again for Stiger. And the jury.
Stiger is still unsure if that’s what Floyd was saying, and Nelson lets it go—but the jury has heard the suggestion.
Later in the day, with a different witness, BCA Special Agent Reyerson, whose testimony I won’t spend much time on because it was so boring, Nelson would play the same video, and ask the same question.  This time, the witness will agree—yes, Reyerson answers, it sounds like “I ate too many drugs” to me.
Ka. Boom.
So damaging was this Reyerson testimony for the state that they actually re-called Reyerson as a witness for the sole reason of having him listen again, and give a different answer.  Oh, now, says Reyerson the second, now it sounds like “I didn’t take no drugs.”
Well, OK. As I said, I’m ambivalent about Floyd’s statement on the merits, because I sure can’t understand what he’s actually saying. Although it must be said Nelson’s version will certainly appear reasonable to a jury that’s been exposed to the toxicology report on Floyd.
But in terms of legal strategy by the defense, this was brilliant. Not only did Nelson plant that seed in the jury’s mind that Floyd had eaten too many drugs and knew it, he got to play the audio for Stiger not once, but twice.
And then again a third time, for Reyerson.
And then the state itself played it for the jury a fourth time!
The Nelson turned to gutting the prosecution’s suggestions that Chauvin’s conduct was criminal because he’d failed to de-escalate as required by MPD policy.

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