WEBVTT - Getting a Conviction in the George Floyd Case

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<v Speaker 1>This is Bloombird Law with June Grassoe from Bloomberg Radio.

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<v Speaker 1>Up across this country, thousands of people marched day after

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<v Speaker 1>day to protest the death of George Floyd in police

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<v Speaker 1>custody and racial injustice, And on Wednesday, many of them

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<v Speaker 1>heard something they've been waiting for. The Minnesota Attorney General,

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<v Speaker 1>Keith Ellison announced tougher charges against the former police officer

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<v Speaker 1>who was seen in the now notorious video pinning Floyd

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<v Speaker 1>to the pavement with his knee, and new charges against

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<v Speaker 1>the three other police officers involved. But Ellison warned about

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<v Speaker 1>the difficulties in getting a jury to convict police officers.

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<v Speaker 1>Trying this case will not be an easy thing. Winning

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<v Speaker 1>a conviction will be hard. In fact, County Attorney Freeman

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<v Speaker 1>is the only prosecutor in the state of Minnesota who

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<v Speaker 1>has successfully convicted a police officer for murder. Joining me

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<v Speaker 1>as former federal prosecutor Elie Honig of Loewenstein Sandler Elly,

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<v Speaker 1>Let's talk about how this was handled. Prosecutors initially charged

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<v Speaker 1>just the one officer with a lesser charge. Could they

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<v Speaker 1>have brought these new charges against all four officers from

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<v Speaker 1>the start and perhaps helped to quail some of the protests. Yeah, June,

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<v Speaker 1>they could have charged this as a second degree murder

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<v Speaker 1>from the start, And I wrote a piece the day

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<v Speaker 1>after the initial charge came out saying they should have

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<v Speaker 1>charged second degree from the start. I'm not sure what

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<v Speaker 1>impact that would have had on the riots. That's a

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<v Speaker 1>complicated question. So the initial charge came from, This is

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<v Speaker 1>important to understand from the Kennepin County Attorney, which is

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<v Speaker 1>sort of the local DA, essentially a county level prosecutor,

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<v Speaker 1>and I had some real questions about his approach. If

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<v Speaker 1>you looked at that complaint, the initial complaints, it was

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<v Speaker 1>baffling in some ways. He left out really important evidence

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<v Speaker 1>of guilt. For example, the initial complaint lists some of

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<v Speaker 1>the things that George Floyd said while he was pinned

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<v Speaker 1>down by the officers knee to his neck, but it

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<v Speaker 1>omits the most important things he said, which where I

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<v Speaker 1>can't breathe and please don't kill me. As a prosecutor,

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<v Speaker 1>that's inexplicable why you would leave that out. So I

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<v Speaker 1>had my doubts about, at a minimum, the competency of

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<v Speaker 1>the Hennepin County Attorney. Now a couple of days after that,

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<v Speaker 1>the Minnesota state Attorney General took over the case, which

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<v Speaker 1>I think was absolutely the right move, and then a

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<v Speaker 1>few days after that he added a second degree murder charge,

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<v Speaker 1>which I think was the right move. I think it's

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<v Speaker 1>supported by the evidence and the way that the a

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<v Speaker 1>G charge that second degree count. It's smart, it's clever,

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<v Speaker 1>it's tactically smart. There's two ways you can prove a

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<v Speaker 1>second degree murder charge under Minnesota law. The harder way

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<v Speaker 1>is to prove an intentional killing. That's not the way

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<v Speaker 1>he charged it. The easier way is to prove there

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<v Speaker 1>was an intentional assault that resulted in a killing, and

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<v Speaker 1>he charged it that way. So I think he's doing

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<v Speaker 1>what every prosecutor should do. You look for the highest,

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<v Speaker 1>most serious applicable charge that you feel confident you can prove,

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<v Speaker 1>and so at trial, the jury will have the choice

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<v Speaker 1>of finding the lesser included charge exactly. That's very important.

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<v Speaker 1>Understand people hear this phrase lesser included offenses. So it's

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<v Speaker 1>not going to be all or nothing yet or no

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<v Speaker 1>on that second degree count, and that's it. Even if

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<v Speaker 1>the jury finds not guilty or can't reach a verdict

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<v Speaker 1>of guilty on the second degree charge, they still have

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<v Speaker 1>the option to convict on the lower charges, including the

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<v Speaker 1>third degree charge, the same one that was in the

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<v Speaker 1>first complaint, and an even lesser manslaughter charge. So there

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<v Speaker 1>are sort of safety net options here against from the

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<v Speaker 1>prosecutor's point of view. Now, the other three officers have

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<v Speaker 1>been charged with aiding and abetting second degree murder and

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<v Speaker 1>aiding and abetting second degree manslaughter. In terms of proof

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<v Speaker 1>at trial, what does the prosecutor have to prove? So

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<v Speaker 1>aiding and abetting is an important concept. I used to

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<v Speaker 1>charge it all the time as a prosecutor, and essentially

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<v Speaker 1>the basic concept is a simple one. If you help

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<v Speaker 1>someone else commit a crime, even in some small way

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<v Speaker 1>knowingly you have to know what's going on, then you

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<v Speaker 1>too are just as liable as the person who commits

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<v Speaker 1>the crime with his own hands. Now the proof is

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<v Speaker 1>going to be trickier on the other three police officers,

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<v Speaker 1>because for each one of them, the prosecutors going to

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<v Speaker 1>have to prove more than just the fact that the

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<v Speaker 1>person was present. There's actually a defense called me or presents.

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<v Speaker 1>In other words, you will hear some of these police officers,

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<v Speaker 1>I believe, defend themselves by saying yes, I was there, Yes,

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<v Speaker 1>I was present, but I was merely present, meaning I

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<v Speaker 1>did not do anything to knowingly assist in this assault

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<v Speaker 1>and the resulting debt. And so the prosecutors are going

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<v Speaker 1>to have to really break it down for the jury

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<v Speaker 1>and say for each of these officers. They're not gonna

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<v Speaker 1>be able to lump of together. They're going to have

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<v Speaker 1>to say, officer a officer, the officer, see, here's where

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<v Speaker 1>he was at this moment, Here's what he did, Here's

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<v Speaker 1>what he was able to see and hear, Here's what

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<v Speaker 1>he did and did not do. And you could end

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<v Speaker 1>up with varying degrees of proof against the varying officers.

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<v Speaker 1>For example, one of the officers in the initial complaint,

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<v Speaker 1>it says he said, shouldn't we roll? Meaning Mr Floyd,

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<v Speaker 1>shouldn't we roll him on his side? And at one

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<v Speaker 1>point he says I should take his pulse. I mean,

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<v Speaker 1>that's gonna be a harder charge to make than against

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<v Speaker 1>some of the other officers. But things like helping to

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<v Speaker 1>pull George Floyd out of a car, which appeared to

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<v Speaker 1>have happened because the police car, the other officers who

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<v Speaker 1>knelt on top of George Floyd, that's going to be

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<v Speaker 1>the kind of evidence prosecutors are looking at. Let's talk

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<v Speaker 1>about the medical examiners reports, because there are two medical

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<v Speaker 1>examiners reports, and there are differences in them. They both

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<v Speaker 1>conclude it was homicide. Tell us about the differences and

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<v Speaker 1>how the defense might use that. Yeah, this is a boy.

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<v Speaker 1>As a prosecutor, you just sort of roll your eyes

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<v Speaker 1>and go off, No, not this, because you never want

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<v Speaker 1>competing medical examiners reports because then it becomes an issue

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<v Speaker 1>in the case when it doesn't really need to be. So,

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<v Speaker 1>as I understand, one of the reports concluded that the

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<v Speaker 1>cause of death was essentially a heart attack or some

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<v Speaker 1>combination of a pre existing medical condition along with the

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<v Speaker 1>physical actions taken by the police, that it was sort

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<v Speaker 1>of a combination. That was the original report, and then

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<v Speaker 1>the later report, the quote unquote independent report that the

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<v Speaker 1>family had done, says it was asphyxiation, suffocation, cut off

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<v Speaker 1>of oxygen or blood to the brain. That's I think

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<v Speaker 1>the more logical conclusion. So there will be a fight

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<v Speaker 1>over which one of those is real. But the bottom line, though,

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<v Speaker 1>is either way, the prosecution should be fine because even

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<v Speaker 1>if you use the original report, the one that defense

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<v Speaker 1>is going to like that or the mixed causes autopsy report,

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<v Speaker 1>as long as you can show that the officers actions

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<v Speaker 1>were a significant contributing factor. In other words, I would

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<v Speaker 1>argue to a jury, look, George Floyd wasn't going to

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<v Speaker 1>die on that day if not for what this police

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<v Speaker 1>officer did. This police officers actions, even under their theory,

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<v Speaker 1>combined with whatever helps conditions he had to cause the debt.

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<v Speaker 1>So legally that's enough. But it's a needless complication from

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<v Speaker 1>the prosecutor's perspective, and it gave me flashbacks to when

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<v Speaker 1>things like this would happen. You, Oh no, why couldn't

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<v Speaker 1>they just get it right? For first, the Minnesota A. G.

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<v Speaker 1>Keith Allison said that winning a conviction will be hard.

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<v Speaker 1>People will look at this video and say, oh, how

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<v Speaker 1>can this not be a slam dunk case. But in

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<v Speaker 1>the past, we've had lots of cases of police officers

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<v Speaker 1>exerting violence, perhaps leading to death against black men, and

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<v Speaker 1>the juries have acquitted the officers time and time again.

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<v Speaker 1>So how do you get over that? Chief Ellison? The

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<v Speaker 1>Attorney general is nobody should assume that this is going

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<v Speaker 1>to be an easy conviction. And I'll tell you why.

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<v Speaker 1>A couple of reasons Number one. Anyone who tells you

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<v Speaker 1>any jury trial is a sure win or a sure

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<v Speaker 1>loss doesn't know what they're talking about. Haven't tried enough cases.

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<v Speaker 1>No jury trial at certain juries are inherently unpredictable. They

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<v Speaker 1>are comprised of twelve everyday, regular, normal human beings, and

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<v Speaker 1>you have to get them unanimous beyond a reasonable doubt

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<v Speaker 1>in order to convict. I mean, and now, if you're

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<v Speaker 1>trying to get twelve people to agree on a pizza topic,

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<v Speaker 1>that that's hard to do, never mind on something like this. Second,

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<v Speaker 1>police cases tend to be even more unpredictable because people

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<v Speaker 1>tend to sometimes like the police. They're brought up to

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<v Speaker 1>respect and look up to the police. And also police

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<v Speaker 1>officers sometimes have defenses available to them that normal people

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<v Speaker 1>don't have, which is, he was trying to do his job,

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<v Speaker 1>he was in difficult circumstances. And then you add on

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<v Speaker 1>top of that the fact that this is going to

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<v Speaker 1>be a racially charged case and a massive media case,

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<v Speaker 1>and that throws in another element of uncertainty. So if

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<v Speaker 1>you're a prosecutor, you're right, June that there is, of

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<v Speaker 1>course the history of inexplicable and I think unjust verdicts.

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<v Speaker 1>In police cases, and especially in racially charged police cases.

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<v Speaker 1>The best you can do here as a prosecutor is

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<v Speaker 1>to keep your jury focused and just say, this is

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<v Speaker 1>not about all the hype that's out there in the world.

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<v Speaker 1>This is about this videotape and what these police officers

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<v Speaker 1>did to George Floyd on that corner on that day.

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<v Speaker 1>That to keep dry on the ball, focus on it,

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<v Speaker 1>focused on the evidence and that video above. All two

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<v Speaker 1>of the officers have had several misconduct complaints against them.

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<v Speaker 1>Will that come in a trial against them? That's gonna

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<v Speaker 1>be one of the motions that will likely be fought

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<v Speaker 1>out in pre trial motions. I think it's it depends

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<v Speaker 1>on the nature of those prior complaints. Now here's here's

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<v Speaker 1>the problem. The defense lawyers are gonna say, that's prejudicial,

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<v Speaker 1>meaning that's this is evidence of things that my my clients,

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<v Speaker 1>this former police officer had done, did it completely different times,

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<v Speaker 1>completely different places. It's just intended to inflame the jury

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<v Speaker 1>and tell the jury he's generally a bad guy. Um,

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<v Speaker 1>when that's not the relevant legal question. The relevant legal

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<v Speaker 1>question is did he commits this crime on this state?

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<v Speaker 1>I think the prosecutor may are you. Well, but it's

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<v Speaker 1>admissible because it goes to a broader pattern of conduct

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<v Speaker 1>that goes to his m so to speak, his motus operandi.

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<v Speaker 1>But if I had to guess, most judges are going

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<v Speaker 1>to keep that kind of evidence out there, going to

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<v Speaker 1>say it's undo, be prejudicial to the defendant, and it's

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<v Speaker 1>it's not probitive enough. It doesn't tell you enough that's

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<v Speaker 1>relevant about what happened on the date of the charge crime.

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<v Speaker 1>But that's going to be a heated battle in the

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<v Speaker 1>pre trial motions for sure. So, um, the US Justice

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<v Speaker 1>Department Civil Rights Division is also investigating Floyd's death. What

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<v Speaker 1>charges might they be looking at? Yeah, so I think

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<v Speaker 1>they are looking at a charge called deprivation of civil rights.

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<v Speaker 1>It's a little misleading because the word civil is in

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<v Speaker 1>the title. But it is a crime. And here's what

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<v Speaker 1>the crime is. It is a crime for somebody acting

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<v Speaker 1>under color of law. And that just means anyone exercising

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<v Speaker 1>any public authority, police officers, unquestionably qualified. If a person

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<v Speaker 1>acting under color of law deprive somebody, willfully deprive somebody

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<v Speaker 1>of a constitutionally protected right. Now hear you would think, well,

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<v Speaker 1>what's the right I mean it's the right to be alive.

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<v Speaker 1>But the technical way you would phrase that would be

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<v Speaker 1>the right to be free of unreasonable police seizure. So

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<v Speaker 1>we do see cases like this. Sometimes the d o

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<v Speaker 1>J has brought charges against police officers officers for using

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<v Speaker 1>excessive sometimes I think famously they declined to do so

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<v Speaker 1>in the Eric Garner case. Um, but they've given off

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<v Speaker 1>d o J has given off pretty strong signals that

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<v Speaker 1>they intend to charge it. That's how I read the

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<v Speaker 1>statements that are coming out of d o J. And

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<v Speaker 1>so also important to know you can have state charges

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<v Speaker 1>and federal charges simultaneously, or for or for the same crime.

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<v Speaker 1>That's not a double jeopardy problem. The U. S. Supreme

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<v Speaker 1>Court actually just ruled last year in that you can

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<v Speaker 1>have charges in the coming from the federal government's Department

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<v Speaker 1>of Justice and the state government as well. And I

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<v Speaker 1>think it's likely we'll see that. So that's another sort

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<v Speaker 1>of safety net, I guess, um for people who want

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<v Speaker 1>to see a conviction here and believe that that's that's

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<v Speaker 1>what justice requires. Are are a federal civil rights charges

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<v Speaker 1>more almost more of a political decision or partially a

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<v Speaker 1>political decision, because as you mentioned, Eric Garner, they didn't charge,

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<v Speaker 1>and they didn't charge um Freddy Gray's death in Maryland.

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<v Speaker 1>In so some of the very controversial ones we didn't

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<v Speaker 1>see federal civil rights charges. Well, the no prosecutes, no

0:12:08.320 --> 0:12:11.320
<v Speaker 1>prosecutorial decision is ever supposed to be political, And I

0:12:11.360 --> 0:12:15.120
<v Speaker 1>think every every prosecutor in office will tell you that

0:12:15.160 --> 0:12:16.720
<v Speaker 1>this is all about the facts in the law, and

0:12:16.760 --> 0:12:20.359
<v Speaker 1>that's as it should be. As a practical matter. Prosecutors

0:12:20.360 --> 0:12:22.200
<v Speaker 1>are human beings. I mean, I was a prosecuted for

0:12:22.240 --> 0:12:25.640
<v Speaker 1>fourteen years. Everyone reads the papers, everyone watches TV and

0:12:25.760 --> 0:12:28.520
<v Speaker 1>listens to the radio. And you wouldn't beat human if

0:12:28.559 --> 0:12:31.520
<v Speaker 1>you did if if you didn't consider, um, what's the

0:12:31.559 --> 0:12:33.839
<v Speaker 1>effect of this going to be in in the real world.

0:12:34.160 --> 0:12:37.040
<v Speaker 1>Another thing to keep in mind is every case stands

0:12:37.040 --> 0:12:40.319
<v Speaker 1>on its own merits in different cases have different levels

0:12:40.360 --> 0:12:44.160
<v Speaker 1>of sort of culpability, and um, you know, you could

0:12:44.160 --> 0:12:46.959
<v Speaker 1>well see a different determination made now. I mean, look,

0:12:47.040 --> 0:12:48.880
<v Speaker 1>this case is similar in a lot of ways in

0:12:48.920 --> 0:12:51.280
<v Speaker 1>the Eric Garner case, but it's not identical. And same

0:12:51.360 --> 0:12:54.480
<v Speaker 1>goes with the Freddie Gray case. Also, you have different

0:12:54.480 --> 0:12:57.760
<v Speaker 1>people making the decisions. I mean, right, the Freddie Gray

0:12:57.800 --> 0:13:00.720
<v Speaker 1>case was under a different administration. Eric Garner was under

0:13:00.720 --> 0:13:04.240
<v Speaker 1>this presidential administration, but a different attorney general, so you

0:13:04.280 --> 0:13:07.400
<v Speaker 1>have different decision makers. So, UM, I think you're right

0:13:07.440 --> 0:13:09.240
<v Speaker 1>to know, and it's important to be aware of the

0:13:09.360 --> 0:13:12.240
<v Speaker 1>history of the Justice Department in deciding to bring these

0:13:12.280 --> 0:13:15.960
<v Speaker 1>kind of charges or declining. Um. And I will obviously

0:13:15.960 --> 0:13:18.920
<v Speaker 1>see what they do here. But I'm fairly confident, and

0:13:18.960 --> 0:13:21.120
<v Speaker 1>this is not based on inside information. This is just

0:13:21.160 --> 0:13:23.800
<v Speaker 1>based on reading the tea leaves from the public statements.

0:13:23.840 --> 0:13:28.000
<v Speaker 1>I'm fairly confident they will charge UH, at least officers Chauvin.

0:13:28.800 --> 0:13:33.360
<v Speaker 1>President Obama called on mayors to review their police department's

0:13:33.520 --> 0:13:37.680
<v Speaker 1>use of force policies. Does it depend on states calling

0:13:37.760 --> 0:13:43.400
<v Speaker 1>for new legislation to overhaul police procedures to ban show colds?

0:13:43.480 --> 0:13:48.440
<v Speaker 1>Is that where it starts? So? I worked on police

0:13:48.600 --> 0:13:51.599
<v Speaker 1>reform for five years as a prosecutor. When I was

0:13:51.640 --> 0:13:53.880
<v Speaker 1>with the new Jersey Attorney General, we worked very closely

0:13:53.880 --> 0:13:57.240
<v Speaker 1>with police departments on reform. I don't think there's any

0:13:57.360 --> 0:14:00.559
<v Speaker 1>one answer. I think it needs to start at the

0:14:00.640 --> 0:14:04.280
<v Speaker 1>highest levels, from from our elected officials in Washington, d C.

0:14:04.480 --> 0:14:06.920
<v Speaker 1>But the real action, the real rubber hits the road.

0:14:07.040 --> 0:14:09.800
<v Speaker 1>I believe at the local levels of state, county, and

0:14:09.920 --> 0:14:13.000
<v Speaker 1>local level. And there there are a whole range of

0:14:13.040 --> 0:14:16.520
<v Speaker 1>readily available police reforms out there, whether it's changing your

0:14:16.600 --> 0:14:18.960
<v Speaker 1>use of force policy, when is it okay to use

0:14:19.240 --> 0:14:21.840
<v Speaker 1>what level of force up to an including lethal force?

0:14:22.160 --> 0:14:27.320
<v Speaker 1>Can you you know can UM? Chokeholds and strangleholds should

0:14:27.360 --> 0:14:30.320
<v Speaker 1>be I think barred in and they are barred in

0:14:30.400 --> 0:14:33.520
<v Speaker 1>some but not all police departments. UM use of body

0:14:33.560 --> 0:14:37.560
<v Speaker 1>warrant cameras, UM, training police officers to recognize individuals with

0:14:37.640 --> 0:14:40.920
<v Speaker 1>mental health problems. UM. I mean there there's just there's

0:14:40.960 --> 0:14:44.880
<v Speaker 1>there's many reforms out there that can be adopted. I

0:14:44.880 --> 0:14:48.080
<v Speaker 1>think legislation is part of it, I think, but but

0:14:48.200 --> 0:14:50.800
<v Speaker 1>not by itself the answer. I think the real leadership

0:14:50.840 --> 0:14:54.880
<v Speaker 1>has to come from police leaders, from mayors, from local prosecutors.

0:14:54.920 --> 0:14:57.880
<v Speaker 1>And the key thing is building relationships between those leaders.

0:14:57.880 --> 0:15:00.760
<v Speaker 1>And you're real community leaders, You're real clear g your

0:15:00.760 --> 0:15:03.280
<v Speaker 1>people who the community will listen to. Because when a

0:15:03.320 --> 0:15:05.400
<v Speaker 1>crisis like this happens, and I'm proud to say in

0:15:05.440 --> 0:15:07.720
<v Speaker 1>New Jersey we've actually had a very good response. We've

0:15:07.720 --> 0:15:12.400
<v Speaker 1>had enormous spirited protests in Newark and Camaden around the state,

0:15:12.760 --> 0:15:15.280
<v Speaker 1>and very little violence and I think a big reason

0:15:15.320 --> 0:15:17.960
<v Speaker 1>for that is because we have strong police leaders, like

0:15:18.080 --> 0:15:21.000
<v Speaker 1>strong local leaders, they already have the relationships. You can't

0:15:21.000 --> 0:15:23.040
<v Speaker 1>just pick up the phone and try to figure out

0:15:23.040 --> 0:15:25.480
<v Speaker 1>who the leader of the religious community is in New

0:15:25.560 --> 0:15:27.440
<v Speaker 1>York for the first time when this happens, you have

0:15:27.480 --> 0:15:29.640
<v Speaker 1>to already know each other. And you can see that

0:15:29.720 --> 0:15:32.080
<v Speaker 1>happening a bit in New Jersey, and I think there's

0:15:32.080 --> 0:15:34.360
<v Speaker 1>a good model there to follow. Thanks for being on

0:15:34.360 --> 0:15:38.200
<v Speaker 1>Bloomberg Law Alley. That's former federal prosecutor Ellie Honig of

0:15:38.360 --> 0:15:41.880
<v Speaker 1>Lowenstein Sandler. And that's it for this edition of Bloomberg Law.

0:15:42.200 --> 0:15:44.320
<v Speaker 1>Remember you can always get the latest legal news by

0:15:44.320 --> 0:15:46.880
<v Speaker 1>going to our Bloomberg Law podcast. You can find them

0:15:46.920 --> 0:15:51.800
<v Speaker 1>on iTunes, SoundCloud for Bloomberg dot com, slash podcast Slash Law.

0:15:52.200 --> 0:15:54.880
<v Speaker 1>I'm John Rossel. Thanks so much for listening, and remember

0:15:54.920 --> 0:15:57.440
<v Speaker 1>to tune to the Bloomberg Law Show weeknights. Attend them

0:15:57.480 --> 0:15:59.320
<v Speaker 1>Easter right here on Bloomberg Radio.