Closing Arguments in the Derek Chauvin Murder Trial

opinion of the closing arguments in general. My opinion about really both sides is that it was just far too long. You know. I understand that there was some complex issued and I understand that there's a lot of ground to cover, but I do think that the cases could have been streamlined easier for the jury to really wrap their minds

around it. I think that a case that could otherwise have been argued it from a very emotional point of view, was argued from a very technical point of view, which I was a little surprised at coming from the prosecution. Neither lawyer told the story to the jury looking at it from Derek Schovin's eyes, looking at it through George Floyd's eye. But nobody really told that story. The prosecution

did a little. I think they tried their case. They also, in very repetitive fashion, told the same story over and over again. So given the amount of experts that they had, I certainly think that they made their points over and over again. And while it was long, you know, I think that detracted from their message. I still think that they made their point. The prosecution painted Chauvin as a rogue actor and kept on, you know, emphasizing that policing

is not on trial. Also, believe your eyes. So do you think those were good points? Well? To believe your eyes? You know, that was a repeat from the opening, you know, which is really effective. You want to take a scene and carried it all the way through to its conclusion, pointing out things that support that being as you go along. But I was a little suprised in some ways. You know, the prosecution say this is you know, policing is not on trial. Certainly they wouldn't have to concede that point.

I don't think they would have had to make it in big bowl letters, but they certainly wouldn't have had to concede it because so many people are concerned. You know that the way Derek Chauvin acted is the way police officers act all around the country, and perhaps they were trying to sidestep with you know, what could have been you know, arguments down the road with regard to an appeal. But I just thought it would have been

better if they left it on said. The defense doesn't have the burden obviously, and the defense attorney emphasized that and reasonable doubt. Do you think they made any case for reasonable debt on the jury's part. I definitely think that while at first, Blush it felt a little confusing that defense was playing you know, the videos where we see you know, Floyd in these compromised positions, crying and pleading. At first, Blush it was a questionable why is the

defense playing this? But he presented a number of different body cameras that showed what what the police officers saw to see and in particular what Showvin saw when he showed up right like, this is what he's confronted with um And I thought the defense brought out some other unique points that you know, when shown did engage that he had his body camera kicked off, you know, there

was enough force from a kick um. He also tried to point out, you know that the police car was rocking when there was attempts to put Floyd in the back of the car. So I do think the defense and brought out things about what actually was happening versus what people were perceiving was happening people who on the other side of the police car, And that was something that the defense alluded to in the opening, and they came back and then and then tied that up nicely

in the clothing. So I do think that the defense had a number of things that should give the jury pause about, you know, what was happening, why officers responded the way that they did, and then you know, what do we really know about these medical circumstances. The defense pointed out that the prosecution experts came in and they

didn't present a unified theory. They each sort of had their own theories about why they didn't believe that, you know, Floyd d died of an overdose or or a heart attack. But their series didn't exactly come together like a nicely coordinated quote for example. So I think the defense got some shots in some of it was just hard to keep tracking because it was so long. The prosecution had so many expert witnesses, and the defense had a few

expert witnesses. But even their experts seemed to have conceded some factors on cross examination. So I wonder if that is a big problem for the defense. It wasn't really a battle of the experts so much like you see in some trials where it's like renowned expert against that renowned expert. Yeah, I agree with you. Um. You know, in order for experts to be credible, certainly there are

points that they have to concede. If they don't concede it, well, then they lose credibility, right if they're going to maintain a certain position that you know, it's contrary to the facts or logic. Right. Um, they're generally speaking, in some things they need to concede. In this case, these experts

seem to concede and easily concede. Um, some pretty important points I expected, or or believe, And you know, perhaps they don't have all the information, but I thought Fowler had employed a pannel or was part of a panel of other experts that came together to give opinions from a holistic point of view. I thought, perhaps suddenly would start hearing from these other experts that worked in some

of these other areas. Right, if it was a heart doctor and a lung doctor, and a brain doctor, right, and a toxicologist and a medical examiner, if they all would set around and looked at everything from their unique points of view. I thought, maybe after Follower's testimony, we hear the opinions of some of those people to get an understanding of why Follower test side the way he did, and in fact them have some additional expert opinion evidence to both ster its points. But we didn't see that.

We didn't see that, and obviously you know, we're not privy to why um. But I thought that the defense at that point then would pull out some of these additional ex experts. How important are these closing arguments? As a practicing attorney, I like to believe the closing arguments are what can make the difference, and in many cases

where there's complex information, I believe that it is. You know, sometimes it's hard to see exactly where a defense attorney is going after there's a plethora of questions asked, and it's about topics that you know, lay people or even the lawyers you know, uh have it addressed or become familiar with before. So I do think closing arguments make a really big difference. I think opening statements are also equally important, so you know, the tenor of it, the themes, uh, storytelling.

I think it's super important. And we didn't see a lot of that from either side here really, um, I think closing arguments do have the potential to make or break a case. I do. And so you know, I know that you thought they went too long and they didn't tell a great story, but did they get their points across? I think each side, yes, got their points across, and I think each side sort of went about it in the same way, which is pretty interesting to me.

It was almost like the attorney's match their style, right Like, typically speaking, we see prosecutors being a little bit more focused on the elements, maybe a little bit more rigid, maybe a little bit more dry, and then you know, generally speaking, we see defense attorneys things very color boll and telling a lot of stories and really digging into

some of those visceral elements. We didn't see that here, and perhaps that was strategic on sur Nelton's part that he was going to meet each one of their arguments step by step, he was going to go through it categorically. So I do think in that way then the argument felt pretty equally yoked, and certainly in terms of time,

but definitely in terms of how much they covered. Each side went into great detail and oftentimes revisited, you know, different categories to make their voices heard and their points known. So I would say I think each side got to what they needed to get done, and they were very

thorough about it. What about the requirement that the use of force was unreasonable, Well, I think that's quite frankly was the weaker part of their Tas you know, Chauvin's out is that he was reasonable and the force that he chose to employ to be digging outside of that,

that's becomes a real problem for him. And when it comes to you know, the experts that test side for the defense, you know, he said some things that made it difficult for the jury, I think, to want to trust him, like how he was resting comfortably on the ground, and how putting somebody down in a prom position isn't a useful force. And then he had to walk those things back and then did do so without being pressed

too hard um by the prosecutors. So I do like what what Mr Nelson did when it came to the closing argument, going back to those manuals, going back to the actual training materials, and you know that brings out a fair amount of bias. I think as it relates to the States experts that tried really really hard to distance themselves from Showman as far as they could. So well, I think the defenses expert witness perhaps UM didn't give them as much play as they'd hoped. I do think

they did a nice job. Would be exhibits UM and the training materials that are in evidence and that the jury will have an opportunity to look at, you know, upposing personal and review. Would you explain the differences between the of the three charges that he's facing, what they have to prove in each sure so as it relates to UM, the felony murder the top count where you

know there's a much higher maximum penalty. Should the prosecution get a conviction, then they can ask for upward departures and what not to try to get culture to that maximum. They have to prove that he was intentionally committing an assault and in this case was intactually making it so

George Floyd couldn't breathe. If they can prove that right, then they're in a good position to then say, yep, and Chauvin was a substantial um uh cause of Floyd's death and therefore because he intentionally employed UM acts that then UM caused him not to breathe, he's guilty of what came later, and that being the death right for some UM defense attorneys in the circle of that that I'm in first UM UM that that certainly has been thought to be a more difficult path to the jury,

especially mon there was you know, commotion at the scene and some resistance for sure that was captured by Floyd. UM. So basically I think that the jury would have to believe that showing a bad guy, that that he's a bad scene top that, UM he was on the force, and UM he decided in that moment when there's a bunch of people around his big videotape and you know, other members of his force and he has his has his body came on that that he is going to

intentionally make it Solf White can't breathe. I think that's a hard sell. UM but it's certainly is possible in the climate in which we find ourselves. Right. And then there's the prave mind murder to crave mind murder as the controversial charge of a person essentially UM taking a risk UM that is so great that it could endanger

people and and and essentially kill people. Right. Um. The examples that we've cited UM in Minnesota previous to our recent Appellate Court ruling have UM covered things like giving

drugs to somebody UM and then that causes their death. So, for example, the other passenger and Mr Floyd's car car who employed UM use of the Fifth Amendment and chose not to testify and not answer one question because his lawyer effectively argued that for him to even put himself in the car puts himself in a position where he's looking at charges, and certainly to potentially admit that he gave Mr Floyd the drug puts him in a spot

where he could be facing charges of the crave mind murder. Right. Another example previous to our recent Court Court of Appeals ruling of the crave mind murder is driving a hundred miles through downtown and causing you know, the death of somebody you didn't intend to, and you certainly didn't point your acts toward one particular person. But but in effect, nonetheless you're depraved mind caused the death. Right. And then we've got manslaughter too, which in some other states um

has been called involuntary manslaughter. So you don't have any intent to cause the death, but you consciously take a risk um that that you should know right in dangers a person's life. Um. That was the most recent charge for the officer in Brooklyn Center here in Minnesota, where she claims that she thought she had her taser but she grabbed her gun. Um. And without getting into the weeds and commenting on that case, you know that case is going to turn on whether or not she consciously

took her risk. Right. And so the lowest charge is of course the easiest charge in which the jury could reach a conviction from Mr Chauvin, because mealing out his neck for that long under all the circumstances that has been pointed out could be him taking a conscious risk that then caused the death of Mr Floyd. Thanks stud that's Krista Groschek of Grosseek Lawn, Minneapolis. First Domino has fallen in the Johnstice Department's investigation into the deadly January

six insurrection. A founding member of the far right group the Oathkeepers has entered the first guilty place stemming from the Capitol riot and has agreed to cooperate with the Jostice Department. John Schaefer entered his guilty plea on Friday to two counts, including obstruction of an official proceeding joining me is Bloomberg Legal reporter David Yaffee bellany what do

we know about John Schaefer? So we know that John Schaefer was among the hundreds of Donald Trump supporters who stormed the Capitol on January six, that he's affiliated with the Oathkeepers. He is which is one of the far right wing groups that was heavily involved in the riot. He was wearing an Oathkeeper's cap when he entered the Capital.

He is described by the Justice Department as a lifetime founding member of the Oathkeeper is kind of a central figure in the organization, and we now know um that he is the first of the hundreds of people charged in the Capital riot to to plead guilty and agree to cooperate in the Justice Department's investigation. What did he admit to in his play? So he admitted to storming the capital and to you know, breaking laws in the

process of doing that. You know, he was also a huge specific things like using kind of a chemical spray as he forced his way in. So he's admitting to having done that as well. And he's you know, crucially promising to work with investigators they seek to kind of to build bigger cases and and and take down people who were involved in the riot. So this play is

being looked on as a breakthrough. Why so in any major investigation, you need people to cooperate um your goals not just to kind of get the low hanging fruit in this case, you know, the people who post itselfies of of themselves storming the capital, but but also to use them use what they know to kind of go after people who may have been more intimately involved in the kind of orchestrating the crime in this case as

the siege of the Capitol. And I think, you know, we don't know what Schaefer knows and you know, what evidence he might be able to supply to investigators, but one of the largest conspiracy cases stemming from from this investigation targets about a dozen members of the Outhkeepers, not including Schaefer, and so it's reasonable to speculate that the SAIDs might be hoping that Schaefer can sort of shine a light on on what those other members of the

militia we're doing and help them kind of build that bigger case that really targets the people who may have orchestrated the riot. So that would work even if he had a minor role in orchestrating it all depends on

what he knows. I mean, he hasn't been charged as part of the that conspiracy, which suggests that prosecutors don't think that he was actually involved in it, though of course maybe they do, and they've just refrained from charging him, and you know, are just hoping to get the information that he has. But we just the answer is, we just really don't know. I mean, this could be this could be a you know, turn out to be a

relatively minor plea deal. It doesn't yield much information. But you know, given the way that the Justice Department trumpeted this announcement, given the fact that it's the first plea deal they've reached, they clearly prioritized and tried to move quickly.

One would assume that they think they're going to get something good out of this in the form of intelligence on other members of the Oathkeepers, or maybe somebody who can just kind of explain on a broader level how the militia works, UM, which could could help prosecutors buildicate. So he was not among that group of oath Keepers who were in some kind of formation and they each had their hand on the shoulder of the one in

front of them. No, he was not. He was not part of that kind of military style formation that stormed the capital. He was charged separately from that group. Do you know how many conspiracy cases have been charged? UM? I can't remember the exact number of conspiracy cases, but the biggest case to have emerged from the investigation is the twelve those Keepers who have been charged in Washington with a conspiracy to lacey each to the Capitol. UM. A group of Proud Boys has also been charged in

a smaller conspiracy case. UM. And those are kind of the two sort of central cases UM that has kind of risen to the surface in the investigation so far. Do you know what charges are being considered, what the most serious charges being considered are, and so there's you know,

a conspiracy charges is very serious. Um, there's also talk of potential sedition charges, which is a kind of not quite unprecedented, but a very rare type of charge level against anybody and UM that would care area long sentence, I can't. I think I think about ten years. And so those are those are the sorts of kind of surious accusations that some of these rioters you're facing, I mean all the some are being charged with assaulting police officers,

which is serious. You know, there's been there are two people who were charged with assaulting officers, including the officer Bryan Sickniks, who later died of injuries that he sustained at the capital. And it's possible that those two men could face selling the murder charges at some point, which

should obviously be very serious. That's basically the spectrum. The most common charges are things like obstruction of an official proceeding, which is something that Schafer pled guilty to, you know, disorderly conduct, you know, entering official grounds that permission, that sort of thing. But then a level up from that you have conspiracy, potential tradition charges we haven't seen yet, you know, Selny murder in that one case, assaulting officers

in other cases. So that's basically the spectrum. At the beginning of this, there was more talk and people knew more about the Proud Boys than the oath Keepers. Does it seem as if that has sort of changed and the oath Keepers have emerged as the more dangerous if you will group, Well, I don't. I don't think we need to, you know, parse between the two of them. I mean, prosecutors have charged members of both groups. If

you look at the numbers. Yes, more Oathkeepers have been charged and the Proud Boys, but it's not by some ridiculous margins. And Proud Boys have been charged with conspiring to ride at the Capitol as well. Um, so really both groups have been have been targeted. Though you're right, certainly the case the Oathkeepers were less known beforehand. Um, they just hadn't gotten as much publicity. The other thing that's worth remembering is we're still a relatively earlier looks

likely to be a year's long investigation. There could be cases that prosecutors are building that we don't know about yet. It could be that the Proud Boice conspiracy case ends up becoming bigger than the Oathkeepers conspiracy case, as more descendants are added as the investigation progresses. Even though it feels like this has been going on for a long time and have as it's been going on for months, we've only just gotten out of the stage where the

prosecutors are really just taking down will hang fruit. We're now getting into the sick of the kind of longer term investigations, sort of utilizing a more complex law enforcement tools that are going to take you know, potentially months and months as Justice Department trying to get to the bottom of what happened. When the government told the court that they were pursuing this plea deal, they wrote that plea terms have required extensive review and approval at various

levels of government. I thought it was interesting because that must be true of all cases. But do you think that there's more review going on than normal? Yeah, I

think there certainly is. I mean, this is a politically sensitive investigation, you know, it's it's one of the central priorities of you know, Merrick Garland's tenure at the Justice Department, and so it you know, it stands to reason that the first plea deal to emerge from this massively important investigation would see more scrutiny than just a run of the mill plea deal involving somebody who's committed of, you know,

a less public crime. Do you have any sense of who the government will deal with and who they won't deal with. I'm wondering if there is just some people that they won't deal with. Yeah, I mean, it depends on it depends on what the people have been accused of. You know, they're unlikely to cut a super nice deal with the very top person with the othkeepers who they think was, you know, behind the orchestration of the riot,

because you know that's the person who they want to target. UM. And you know, you can almost think of this as like an organized crime investigation where they flip people lower in the pyramid as a way to getting to the people at the top. UM. I think that's probably the

approach that the Justice Department is taking. And you know, there there's also a sense, a sort of broader sense that there are crucial gradations that people weren't totally conscious of on January X between different levels and this conduct. It is the capitol. I mean, you had people who were assaulting police officers vandalizing the building, and who are

maybe even planning with ahead of time. And then you had people who were just kind of showed up at the rally and then kind of follow the crowd inside and sort of wandered around aimlessly inside the capital and them left. And those are different types of criminal conduct, and they're being treated differently, And if you're in the latter category, I think you're you're likely to get more

sympathetic treatment. Is law enforcement going after everyone they can identify or are they just ignoring the people that, as you say, maybe just walked in with the crowd and walked through. There have been reports that there's internal debate within the Justice Department over whether to go after everybody. But in the public statements that prosecutors have made to the press, they have insisted that they are going after everybody, but you set foot in the Capitol that day, they

have their eye on you. Now, it's certainly the case that there were people in the Capitol that day will never get caught. Um not everybody's face was captured in video footage. It was a huge crowd, and I think prosecutors have come to acknowledge that they're not going to track down every last person. Several people have been are being held in jail pending trial, and I don't know

if it's because they're in different jurisdictions. It doesn't seem as if there's any kind of ryan more reason for who's being kept in as far as the people who were the faces of it. For example, the guy who was in Nancy Pelosi's office is being held, but the guy who stole the podium is not being held. Yeah, I mean this is the subject of a lot of

a lot of courtroom debate. I mean, first worth noting that some of the people who were initially the faces of the riot, um, you know, are now no longer the kind of major targets of the prosecutors, right, I mean, as as the Justice Department becomes more interested in who planned the riot and less interested in who was photographed in the most obnoxious way on January six, you know,

the priorities change basically. But yeah, no, there's a lot of databas who should be held pending trials, who should be granted bail. The DC Circuit, the Appeals Court, the Federal Appeals Court, and DC issued ruling a couple of weeks ago that sort of articulated the distinction between people who just walked in and people who committed more serious crimes inside and basically said that, you know, if you fall into the less serious category, then you know, you

should probably be granted sail. And so that was a really helpful ruling for defense lawyers, and it has been invoked repeatedly in the court over the last few weeks um as defense lawyers have argued that their clients shouldn't be held pending trial. But you know, all of the factors that go into a bail decision by here, you know, does the person have a criminal record, are they a flight risk? How serious was the crime? You know, how good are their lawyer? Is it making the case for them?

You know, were they able to mobilize you know, you know character witnesses who could testify to the fact that the person wouldn't be held. You know what mood was the judge in that day. You know, it's not it's not an exact science, but there are these gradations of conduct at the Capitol that I think are the primary driving force of who gets fail and who doesn't. It's as simple as if you committed the more serious crime,

you're less likely to get failed. I also want to touch on another topic, tell us about what happened in the death of Ashley Babbitt. So, you know, this was a viral video that circulated the day of the riot and which was incredibly disturbing. You could see Ashley, Ashley Babbitt, who is one of the people who stormed the capitol um, sort of stand up inside a doorway with a broken window inside the Capitol and then get shot and follow

the ground. And she later died. And so she was one of the handful of people who who died as a result of the violence of the Capitol. U in the Justice Department announced last week that it wasn't going to bring charges against the officer, the Capitol police officer who shot her. That basically they were unable to find any evidence supporting the idea that the officer had had broken a law or you know, not acted in a

reasonable way when when he shot her. Thanks David. That's Bloomberg Legal reporter David Jaffie Beleni And that's it for the edition of the Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Law Podcast. Please subscribe. I'm June Grosso and you're listening to Bloomberg