The prosecution had a terrible, horrible, disastrous day 7. It was described as a “train wreck of a disaster for the prosecution” by Legal Insurrection.
The cross-examination of Nicole MacKenzie, the state’s medical care training expert, was so bad that the defense plans to re-call MacKenzie as a defense witness.
Also, state witness, Johnny Mercil, the state’s use-of-force training expert, left Prosecutor Schleiter “shaken and angry” after he testified. Mercil “mauled his case.”
At one point, Mercil testified that he himself had personally kept a suspect physically restrained until EMS had arrived on the scene, behavior which the state has been arguing for over a week was misconduct on the part of Chauvin, Legal Insurrection reports.
TESTIMONY OF MPD LT. JOHNNY MERCIL
MPD Lieutenant Johnny Mercil, presented as the state’s expert on MPD use-of-force policy and training.
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.
According to Legal Insurrection, Schleiter presented the use of force continuum in the most childish and sterile context possible. Mercil gave him the ‘yes’ answers he wanted.
Schleiter posed simplified and hypothetical scenarios only minimally representative of what occurred with Floyd and asked if the use of, say, a neck restraint in that hypothetical would be reasonable.
No context was provided. Schleiter didn’t want Chauvin to look reasonable by giving context.
Schleiter showed a photo of Chauvin with his knee on Floyd’s neck, asking if this was an MPD-trained neck restraint. While the answer is in the negative, it does not make it outside the policy.
“The direct of Mercil was really just more of the Schleiter show. He checks the boxes, but not even all the boxes needed to support the state’s narrative of guilt. It’s dangerous to only expose the jury to half the context.
“It 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 their own witness.
“And that’s precisely what happened with Mercil, and in a big, big way,” Legal Insurrection reports.
Nelson began by asking questions related to Mercil’s time as a street cop.
“A 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. An officer could certainly assume that was a ploy to avoid arrest.
The report continues: “Nelson also once again put the use of pressure and bodyweight 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.”
In other words, Chauvin’s knee wasn’t a public execution. It was a “lesser force.”
USE OF FORCE ISN’T JUST WHAT THE SUSPECT WANTS
Schleiter is pretending the force should have been related to whatever Floyd wanted.
“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.”
“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.
IT WAS NOT A CHOKEHOLD
“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.”
Mercil also agreed that Chauvin’s knee was not a “chokehold.”
Nelson also brought out the fact that Chauvin could NOT have subjected Floyd to a carotid choke for 9 minutes because he would have been unconscious in ten seconds.
Mercil also admitted that when subjects regain consciousness they can be even more aggressive. That is the rationale for Chauvin maintaining his knee across Floyd’s back even after he lost consciousness.
Mercil admitted that it might be appropriate for an officer to maintain a neck restraint for a long period of time, even up until the EMS arrive.
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.
THE MOB KILLED GEORGE FLOYD
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.
“As far as medical care is concerned, 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.
Nelson agreed that a mob shouting insults and outright threats constituted such a reason—and that was the 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.”
It got even worse.
THE KNEE ON THE SHOULDER
“Then 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 prone 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 the presence of a 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.
“The admission means the restraint can be used to ensure the suspect is compliant moving forward., especially suspects can become more violent after regaining consciousness. That’s for the safety of the officers and the bystanders.
This was devastating testimony from the states’ own use of force expert, who also made it clear that the bystanders presented an imminent danger.
That wasn’t as bad as what was to follow with MPD Officer Nicole MacKenzie.
STATE’S WITNESS: MPD OFFICER NICOLE MACKENZIE, MEDICAL SUPPORT COORDINATOR
But the state’s terrible, horrible no good, very bad day wasn’t over yet. Next up was the state’s MPD expert on medical issues, Officer Nicole MacKenzie.
“Again direct was by Schleiter, and again he used the same old playbook. Provide half the context, in a childishly simplistic form that stripped out all context and certainly ignored the totality of the circumstances.”
Cross went badly for Schleiter.
MacKenzie admitted to the defense attorney that an officer must consider more than just the suspect — the totality of the scene. She agreed, and she also agreed the angry bystanders had to be considered.
“Isn’t it true, Nelson asked MacKenzie, that you train officers to consider not just the suspect, but the totality of the scene? Yes, she replied.
It raises “the legitimate question of whether it was, in fact, the angry bystanders who in effect “killed” Floyd by interfering with the officers’ ability to provide Floyd with the attention and care which he’d otherwise have received.”
“Indeed, their angry presence compelled the paramedics to do a “load and scoot” of Floyd, delaying his effective treatment, and resulting in further delays when the fire department could initially not find the re-located ambulance.”
Nelson also touched on a new issue, that of agonal breathing., desperate breathing when a body is near death.
“Isn’t it true, Nelson asked, that agonal breathing could be misinterpreted by officers as just breathing? Yes, answered MacKenzie. Would this be a more likely misinterpretation if the scene was noisy, disruptive, had the presence of a loud angry mob? It would, answered MacKenzie.
DID THE MOB EFFECTIVELY KILL FLOYD?
“Nelson noted that one of the CPR training slides previously shown by Schlieter on direct questioning of MacKenzie had indicated that one of the reasons an officer could justifiably cease performing CPR was if the circumstances were not safe enough to allow continued CPR. Would this also mean that unsafe circumstances could justify not starting CPR in the first place, even where CPR would otherwise be warranted? Yes, answered MacKenzie.
“Nelson pulled up another slide from the training materials — a picture intended to illustrate in dramatic form just how lethal fentanyl is.
“The picture showed a vial of heroine, with a small bit of powder in it—that small amount of heroine represented a fatal dose. Beside it was a second vial, with a much smaller amount of a powder—that represented a fatal dose of fentanyl. Finally, there was a third vial, with a truly minuscule amount of powder—that represented a fatal dose of a particular common variant of fentanyl.
It brings home the horrible lethality of fentanyl.
The next topic was very damaging to the State’s case.
Nelson began to explore the question of excited delirium with MacKenzie.
“The importance of excited delirium for the defense is that it explains both a lot of Floyd’s erratic behavior, raises genuine concerns of super-human strength on the part of the already very large Floyd, provides a justification for the sustained restraint of Floyd’s entire body from foot to head as that’s part of the excited delirium protocol for police, and more.
Next, he got MacKenzie to agree that the “load and scoot” of Mr. Floyd might have been because of the dangerous crowd.
It gets worse.
LOAD AND SCOOT
“Is one of the reasons the ambulance might do a load and scoot is not just the safety of the paramedics, but that the presence of an imminently threatening crowd would make it difficult or impossible for the paramedics to focus on providing proper care to their patient?
“Yes, answered MacKenzie.
“Boom. Again: Did the mob effectively “kill” Floyd?
And that was the end of Nelson’s devastating cross of MacKenzie.
The state’s narrative of guilt was devastated.
And it’s not over yet.
NEVER ASK A QUESTION IF YOU DON’T KNOW THE ANSWER
“On re-direct by Schleiter, we had a perfect, classic example of why a lawyer should never ask a question unless he knows the answer he’s going to get.
“Isn’t it true, Schleiter asked MacKenzie, that officers shouldn’t expect to only have a duty to provide care under perfect circumstances? MacKenzie agreed. So far so good.
“But then, in an effort to undercut Nelson’s characterization of the bystanders at the Floyd scene as constituting a hostile crowd, Schleiter asked MacKenzie for her definition of a hostile crowd.
“Her answer: A growing contingent of people, yelling, being verbally abusive to those providing scene security, acting in a manner that could interfere with care.
“Boom. Exactly as the mob was conducting itself at the Floyd scene.
Again: Did the mob effectively “kill” Floyd?
And it’s still not over for the state.
NELSON WILL USE MACKENZIE AS HIS WITNESS
It was at this point, when both sides had completed today’s questioning of MacKenzie, that it was revealed that the state had objected to Nelson’s asking MacKenzie about excited delirium. Rather than fight that objection, Nelson took a different approach entirely.
He informed the court that he intended to recall MacKenzie as a defense witness for his own case in chief.
That’s right. Not only was MacKenzie’s testimony, as a state’s witness, incredibly damaging to the state itself when Nelson was limited to the role of cross-examination and limited by the state’s own scope on direct, Nelson was going to bring MacKenzie back as a defense witness, where he would be in control of the scope of direct, and the state would find itself limited on the cross.
And that was it for state’s witness MacKenzie—until we next see her as defense witness MacKenzie.
The analysis at legal Insurrection was done by Attorney Andrew F. Branca. It’s much more involved than what I put here. In addition, he has clips of the testimony and cross examination. It’s outstanding.