WEBVTT - Chauvin Pre-trial Deep Dive 0:00:11.880 --> 0:00:15.400 Greetings and welcome to wok F with me Danielle Moody. 0:00:15.480 --> 0:00:17.800 This week marked the beginning of the murder trial from 0:00:17.840 --> 0:00:22.840 Minneapolis police ex officer Derek Chauvin, who killed George Floyd 0:00:22.920 --> 0:00:26.000 in broad daylight nearly a year ago by kneeling on 0:00:26.040 --> 0:00:29.479 his neck for close to nine minutes, setting off a 0:00:29.520 --> 0:00:33.120 renewed wave of protests against police brutality and white supremacy 0:00:33.320 --> 0:00:37.159 across the country. I'm joined every week with my friend 0:00:37.360 --> 0:00:41.040 and MSNBC legal analyst Glenn Kirshner, who for thirty years 0:00:41.080 --> 0:00:44.040 worked as a federal prosecutor. This week I asked him 0:00:44.080 --> 0:00:46.479 to break down the numerous aspects of the Chauvin pre 0:00:46.600 --> 0:00:50.159 trial process that have been troubling me. Glenn's explanations were 0:00:50.240 --> 0:00:53.120 so in depth and so informative. We ended up talking 0:00:53.120 --> 0:00:56.360 for almost a half hour about this pivotal trial. To 0:00:56.440 --> 0:00:58.840 hear our full conversation, which is one I think is 0:00:58.960 --> 0:01:02.080 essential listening for anyone that will be following this trial 0:01:02.120 --> 0:01:04.839 in the coming weeks, head over to patreon dot com 0:01:04.880 --> 0:01:08.479 slash woke F and subscribe for just five dollars a month. 0:01:08.680 --> 0:01:11.160 I'm sure this will not be the last time that 0:01:11.240 --> 0:01:13.920 Glenn and I talk about this particular trial, and I 0:01:13.959 --> 0:01:16.800 talk with so many other experts and thinkers five days 0:01:16.800 --> 0:01:19.320 a week on my show. But for now, I do 0:01:19.480 --> 0:01:22.080 want to share with you Glenn's breakdown of the lesser 0:01:22.120 --> 0:01:25.839 included third degree murder charge, which has since been restored, 0:01:25.959 --> 0:01:29.280 how the jury selection process works, how Chauvin's defense might 0:01:29.400 --> 0:01:33.800 use George Floyd's autopsy against the prosecution, and ultimately whether 0:01:33.840 --> 0:01:36.919 he thinks Derek Chauvin will be convicted of the murder 0:01:36.920 --> 0:01:42.280 of George Floyd. The feeling here for me with regard 0:01:42.360 --> 0:01:45.160 to the second degree murder charge and a third degree 0:01:45.240 --> 0:01:48.400 murder charge and having both of those stand, is that 0:01:49.160 --> 0:01:52.160 I don't want him to get the lesser charge right, 0:01:52.360 --> 0:01:55.520 And the understanding is that one I'm not hopeful. The 0:01:55.560 --> 0:01:58.520 pattern that we have seen since the murder of Trayvon 0:01:58.640 --> 0:02:01.480 Martin has been the same, has been consistent. There's been 0:02:01.520 --> 0:02:06.800 no deviation, except for I believe in one case where 0:02:07.840 --> 0:02:10.440 the young man and I'm forgetting his name because there 0:02:10.480 --> 0:02:13.320 have just been so many was shot to death in 0:02:13.320 --> 0:02:16.600 a car because he was playing loud music. The older 0:02:16.639 --> 0:02:20.320 white man who shot him went to jail. But in 0:02:20.360 --> 0:02:23.560 every case and every other case, these people get off, 0:02:23.600 --> 0:02:26.639 whether you are a white vigilante or a white police officer. 0:02:26.720 --> 0:02:31.520 My question though, with regard to how we are looking 0:02:31.520 --> 0:02:34.200 at these drawers, some of the questions to me seem 0:02:34.280 --> 0:02:38.640 incredibly problematic, which is, do you support Blue Lives matter? 0:02:38.800 --> 0:02:41.120 Do you support Black lives matter? Have you been to 0:02:41.200 --> 0:02:43.720 a protest? If you were at a protest, did you 0:02:43.760 --> 0:02:46.200 bring a sign. If you brought a sign, what was 0:02:46.240 --> 0:02:49.280 on that sign. The idea that we can't even in 0:02:49.320 --> 0:02:52.320 this country say that black lives matter and make that 0:02:52.400 --> 0:02:58.720 into something that is somehow conspiratorial, somehow violent, when in 0:02:58.760 --> 0:03:02.040 fact everything you've seen is to the contrary of that 0:03:02.600 --> 0:03:06.359 is incredible to me. And we also seek to look 0:03:06.360 --> 0:03:11.760 for people that are what unbiased or are impartial. And 0:03:11.800 --> 0:03:16.200 I don't understand how everyone in the world saw that 0:03:16.320 --> 0:03:19.520 video of George Floyd taking his last ust everyone in 0:03:19.560 --> 0:03:23.440 the world. So how do we look for impartiality when 0:03:23.520 --> 0:03:28.000 something went viral? So okay, there's a lot to unpack, 0:03:28.040 --> 0:03:30.320 so many great questions. First of all, when we talk 0:03:30.400 --> 0:03:33.880 about the judge getting rid of the third degree murder charge, 0:03:33.919 --> 0:03:37.120 he did that because he thought, legally speaking, that was 0:03:37.280 --> 0:03:41.400 not an appropriate theory of liability, as the Minnesota law 0:03:41.920 --> 0:03:45.320 is drafted, so when I said it might be perceived 0:03:45.400 --> 0:03:48.760 I should have said it might be misperceived by chauvin 0:03:48.960 --> 0:03:51.600 or by some as Hey, this judge threw out a charge, 0:03:51.640 --> 0:03:53.480 Maybe that's good for us. He was doing what he 0:03:53.520 --> 0:03:56.320 thought was right. I believe based on the law, So 0:03:58.200 --> 0:03:59.560 it's and it may not. I don't want to get 0:03:59.560 --> 0:04:02.080 down on the lead weeds. It may not technically be 0:04:02.200 --> 0:04:05.320 a lesser included offense under the law because you need 0:04:05.360 --> 0:04:07.640 to have elements in common as you work your way 0:04:07.640 --> 0:04:11.440 down to lesser included offenses, and the theories of liability 0:04:11.440 --> 0:04:12.960 are kind of different, so it may not be a 0:04:13.040 --> 0:04:15.600 lesser included. Let me talk about lesser included every time 0:04:15.640 --> 0:04:18.719 I try to first degree premeditated murder case. You bet 0:04:18.760 --> 0:04:21.279 I wanted the lesser included a second degree murder to 0:04:21.320 --> 0:04:24.200 go to the jury. Why Because if I didn't persuade 0:04:24.240 --> 0:04:28.159 all twelve jurors beyond a reasonable doubt that the defendant 0:04:28.200 --> 0:04:34.760 actually engaged in premeditation and deliberation before killing the victim, 0:04:35.279 --> 0:04:38.800 then if I didn't give them second degree murder, the 0:04:38.880 --> 0:04:40.919 jury would have to find him not guilty, and I 0:04:40.960 --> 0:04:45.120 will take a second degree murder conviction all day, every day, 0:04:45.240 --> 0:04:48.000 rather than a not guilty on first degree with no 0:04:48.320 --> 0:04:51.200 opportunity for the jury to hold them accountable. Then let 0:04:51.200 --> 0:04:56.039 me talk about the problematic juror questions that you refer to. 0:04:56.520 --> 0:05:00.120 I don't see them as problematic. Here's why I want. 0:05:00.120 --> 0:05:02.719 First of all, you're absolutely right, we get to protest. 0:05:02.839 --> 0:05:05.039 I was down at the Black Lives Matter protest in 0:05:05.160 --> 0:05:07.400 DC right in the middle of it. I felt strongly 0:05:07.400 --> 0:05:10.520 about that we need to protest. It's an important part. 0:05:10.560 --> 0:05:14.120 It's our civic responsibility, frankly to protest. Right, it's the 0:05:14.120 --> 0:05:15.640 only one of the only ways we can hold our 0:05:15.640 --> 0:05:20.120 government accountable. But as a prosecutor or as a criminal litigator, 0:05:20.440 --> 0:05:26.640 I want to know what the preconceived notions and beliefs 0:05:26.680 --> 0:05:31.080 and passions are of each juror. So, for example, I 0:05:31.120 --> 0:05:33.520 want to know if somebody is all about Blue Lives Matter, 0:05:33.760 --> 0:05:36.680 and you know, but Derek Chauvin, whatever he needed to do, 0:05:36.760 --> 0:05:39.760 he needed to do because he was protecting us, right. 0:05:40.360 --> 0:05:43.600 I need to know that as a prosecutor because I 0:05:43.640 --> 0:05:46.760 need to be able to exercise a strike for cause 0:05:46.800 --> 0:05:52.479 against that person. Because I welcome your right to express 0:05:52.560 --> 0:05:55.520 and to protest. Whether you're on the Blue Lives Matter 0:05:55.600 --> 0:05:58.640 the Black Lives matter, both neither. But I need to 0:05:58.680 --> 0:06:01.839 know it so I can make informed decisions as a 0:06:01.920 --> 0:06:05.000 prosecutor about who I want and about who has no 0:06:05.120 --> 0:06:08.480 rights sitting on this jury because they have such strong 0:06:09.040 --> 0:06:12.320 preconceived notions that they can't put them aside and base 0:06:12.440 --> 0:06:14.800 the case only on the evidence they here in court. 0:06:14.880 --> 0:06:19.240 So that's my view of what sound to be intrusive 0:06:19.760 --> 0:06:23.919 questions that sound like they trample on our right to 0:06:24.000 --> 0:06:27.520 expect right, it sells freely, okay, because that's how I 0:06:27.560 --> 0:06:30.200 felt when I when I heard it, I said, well, 0:06:30.279 --> 0:06:33.200 that just doesn't seem right to me. The entire country 0:06:33.400 --> 0:06:36.960 was at protest. We were seeing them in all fifty states, right, 0:06:37.160 --> 0:06:39.160 And so when I when I saw that question, I'm 0:06:39.160 --> 0:06:42.200 thinking to myself, well, we're just now going to throw 0:06:42.320 --> 0:06:44.840 people out and assume that if you've sat on your 0:06:44.839 --> 0:06:48.800 couch for the past year, right, didn't involve yourself in 0:06:48.839 --> 0:06:51.719 any which way in these uprisings or calling your representatives 0:06:51.800 --> 0:06:54.720 or anything that, then that makes you impartial. And I 0:06:54.720 --> 0:06:58.159 think that I equate it to when we talk about 0:06:58.760 --> 0:07:03.320 media and journalist not having opinions right, and there is 0:07:03.360 --> 0:07:05.640 no way that you don't have an opinion in this 0:07:05.760 --> 0:07:08.080 day and age, in what we are seeing. There's no 0:07:08.160 --> 0:07:10.840 way that you didn't have an opinion about kids being 0:07:10.920 --> 0:07:14.680 snatched from there from their mothers right and locked in cages. 0:07:14.720 --> 0:07:18.120 There's no way that you are reporting that and saying 0:07:18.200 --> 0:07:22.440 you're you're reporting it in an impartial way. We're human beings, 0:07:22.480 --> 0:07:26.240 and so I thank you for that clarification. What are 0:07:26.240 --> 0:07:31.080 you anticipating as this unfold? Where are you anticipating that 0:07:31.160 --> 0:07:34.920 the defense goes here? I know where the defense is 0:07:34.920 --> 0:07:37.520 going to go. I've studied the autopsy report, and so 0:07:37.640 --> 0:07:41.600 two things about the autopsy. The first one was performed 0:07:41.600 --> 0:07:45.760 by the Hennepin County Medical Examiner, as is ordinarily the 0:07:45.840 --> 0:07:50.280 case in all jurisdictions, your state or your county medical 0:07:50.360 --> 0:07:54.960 examiner performs the autopsy. And then George Floyd's family hired 0:07:55.240 --> 0:07:57.760 doctor Michael Boden, whom I know, and he had a 0:07:58.440 --> 0:08:03.520 fellow forensic pathology do the second autopsy with him. They 0:08:03.520 --> 0:08:07.640 reached two different conclusions. The first one said he experienced 0:08:07.800 --> 0:08:12.160 a heart incident that was a product of the restraint 0:08:12.240 --> 0:08:15.720 being applied to him by police officers, but he wasn't 0:08:15.760 --> 0:08:18.160 suffocated and I'll talk about that in a minute, and 0:08:18.200 --> 0:08:23.560 that's an important finding. And Michael Boden and his associate said, no, 0:08:23.640 --> 0:08:28.680 this was an asphyxial death. He was asphyxiated. Here is 0:08:28.800 --> 0:08:32.040 the issue that we have to contend with. The prosecutor said, 0:08:32.160 --> 0:08:35.120 I'm calling the Hennepin County Medical Examiner to testify, but 0:08:35.160 --> 0:08:38.240 I'm not calling the medical examiner that was hired by 0:08:38.280 --> 0:08:43.800 George Floyd's family. That's a perfectly appropriate tactical decision. And 0:08:43.880 --> 0:08:48.199 he thinks he can prove criminality based on the findings 0:08:48.240 --> 0:08:50.719 of the Hennepin County Medical Examiner. But here are some 0:08:50.760 --> 0:08:54.760 of the challenges with those findings. The Hennepin County Medical 0:08:54.760 --> 0:08:59.760 Examiner found no injuries to his neck, either externally or internally. 0:08:59.760 --> 0:09:03.640 When you resect the neck. I've seen so many strangulation cases. 0:09:04.080 --> 0:09:07.520 There are telltale signs of strangulation. There's a broken highoid bone, 0:09:07.520 --> 0:09:09.439 which is a very delicate bone right here. And I 0:09:09.480 --> 0:09:12.800 can tell you, Danielle, in every manual strangulation case or 0:09:12.840 --> 0:09:15.880 significant pressure that's put on the neck, you're gonna have 0:09:15.920 --> 0:09:19.640 a fractured highoid bone. You're gonna have fractures. They call 0:09:19.679 --> 0:09:23.080 it to the cartlete. You're gonna have bruising internally, you're 0:09:23.120 --> 0:09:26.959 gonna have and you're gonna have what's called peticial hemorrhaging. 0:09:27.000 --> 0:09:29.600 Those are pinpoint hemorrhages in the whites of the eyes 0:09:29.800 --> 0:09:32.360 and in the gums that are a result of your 0:09:32.400 --> 0:09:36.600 brain being deprived of oxygen. The blood vessels begin to pop, 0:09:36.920 --> 0:09:40.760 telltale signs. He had none of that. Okay, none of that. 0:09:41.040 --> 0:09:44.640 So what they're going to argue is it may look 0:09:44.720 --> 0:09:48.640 bad that all this pressure seem to be applied to 0:09:48.679 --> 0:09:51.480 his neck for eight minutes and forty six seconds, but 0:09:51.600 --> 0:09:55.920 there's no injuries and there's no hemorrhaging that would that's 0:09:55.920 --> 0:09:59.840 associated with the brain being deprived of oxygen because there's 0:10:00.000 --> 0:10:04.000 away is being cut off. So he wasn't strangled. What 0:10:04.080 --> 0:10:06.600 he was is he had pressure being put on all 0:10:06.640 --> 0:10:09.160 parts of his body and his body was under duress. 0:10:09.400 --> 0:10:12.200 He couldn't get enough air in, which is right different. 0:10:12.240 --> 0:10:17.600 It's different than a strangulation death. It's called positional asphyxia 0:10:17.840 --> 0:10:20.600 where pressure is being put on the body here and 0:10:20.720 --> 0:10:23.959 here and here, and he can't breathe and he can't breathe, 0:10:24.200 --> 0:10:27.200 which is different than strangling. A guy out not to 0:10:27.200 --> 0:10:29.720 get graphic right. So here's what the defense is going 0:10:29.760 --> 0:10:32.880 to say. They're gonna say, you know what, maybe the 0:10:32.920 --> 0:10:36.480 guy who was putting pressure on his torso was really 0:10:36.520 --> 0:10:39.240 the bad guy. I can't. I can't. I just just 0:10:39.320 --> 0:10:40.800 hang with me, though, hang with me. I know I 0:10:40.800 --> 0:10:43.160 can't either. And it's not a winning argument. I'm just 0:10:43.200 --> 0:10:46.520 trying to set out you for your listeners where I 0:10:46.559 --> 0:10:50.960 think Chauvin is going with this right, but hold fast 0:10:51.000 --> 0:10:53.720 because it's a losing argument for him. So, you know, 0:10:53.840 --> 0:10:56.319 maybe my knee on his neck looked bad, but there 0:10:56.320 --> 0:11:00.599 were no injuries and there was no deprivation acute deprivation 0:11:00.640 --> 0:11:05.000 of oxygen to the brain. Sony didn't strangle him. Here's 0:11:05.040 --> 0:11:06.640 the other thing they're gonna say, and you're not gonna 0:11:06.679 --> 0:11:09.120 like this either. Do you know how long it takes 0:11:09.120 --> 0:11:11.160 if you're strangling somebody. Do you know how long it 0:11:11.200 --> 0:11:14.559 takes for somebody to lose consciousness? The first apologists will 0:11:14.559 --> 0:11:18.200 tell you eight to ten seconds, and then it takes 0:11:18.280 --> 0:11:21.560 less than four or five minutes to kill somebody by 0:11:21.600 --> 0:11:25.320 manually strangling that person. They're going to embrace the eight 0:11:25.320 --> 0:11:27.960 minutes in forty six seconds and say, see he didn't 0:11:27.960 --> 0:11:31.560 lose consciousness in ten seconds. He didn't wasn't strangled to 0:11:31.640 --> 0:11:35.160 death in four minutes. Therefore, my knee on the neck 0:11:35.320 --> 0:11:41.240 was not the bad actor is. Here's my concern. Anytime 0:11:41.280 --> 0:11:45.280 you have multiple people involved in a murder, co defendants 0:11:46.080 --> 0:11:49.640 and you begin to sever them out and try them individually, 0:11:49.679 --> 0:11:55.199 you know what happens every flipping defendant makes this argument, Oh, 0:11:55.240 --> 0:11:57.560 I'm not the one who always the other guy. The 0:11:57.600 --> 0:12:00.400 other guys who aren't in court, they're the bad guys. 0:12:00.480 --> 0:12:02.000 I'm not the bad guy. Look at me. I've got 0:12:02.040 --> 0:12:04.000 a suit and a tie and I'm wearing my college 0:12:04.000 --> 0:12:06.640 boy glass. Look at me, I'm you know. And they 0:12:06.679 --> 0:12:09.960 put on an act and I saw for thirty years. 0:12:10.120 --> 0:12:12.120 And the defense attorney will put everybody in a suit 0:12:12.160 --> 0:12:14.160 that's too big for them to make them look meek, 0:12:14.280 --> 0:12:18.120 and put fake glasses on them to make them look bookish. 0:12:18.200 --> 0:12:21.800 Oh yeah, it's the place defense attorneys. And I'm not 0:12:21.840 --> 0:12:24.640 critic I love my brother and sister defense attorneys, I 0:12:24.640 --> 0:12:29.000 really do. Most of them are good, honest, ethical, zealously 0:12:29.040 --> 0:12:33.560 representing their clients, and we want that. But here's the 0:12:33.600 --> 0:12:37.400 good news. As I watched this as a career homicide prosecutor. 0:12:37.920 --> 0:12:40.800 I know how I would try this case, and I'm 0:12:40.800 --> 0:12:43.400 pretty dang sure I could win a conviction based on 0:12:43.440 --> 0:12:47.280 the evidence I've seen and what I've seen from this prosecutor. 0:12:47.960 --> 0:12:50.880 Is he's strong, he's thoughtful. I haven't. I've only seen 0:12:50.960 --> 0:12:53.800 what I can see on court TV, right right. I 0:12:53.840 --> 0:12:56.120 also think the defense attorney is very strong. I think 0:12:56.120 --> 0:12:59.760 the judge is very thoughtful. I'm thrilled with the civility 0:13:00.120 --> 0:13:03.080 and the professionalism that I'm seeing. I don't think it 0:13:03.120 --> 0:13:06.679 will be a circus because they've allowed cameras into the courtroom. 0:13:06.840 --> 0:13:10.880 Sometimes that can devolve into an absolute mess. At the 0:13:11.040 --> 0:13:14.200 end of the day, my prediction as this jury will 0:13:14.240 --> 0:13:18.200 hold Derek Chauvin criminally accountable for what he did. The 0:13:18.240 --> 0:13:22.880 biggest question in my mind is at what level of homicide. 0:13:28.000 --> 0:13:30.040 In the days and weeks to come, we will be 0:13:30.080 --> 0:13:33.640 following the Derek Chauvin trial across the country as it unfolds. 0:13:33.640 --> 0:13:37.280 In Minneapolis, the city, with its Operation Safety Net, barbed 0:13:37.320 --> 0:13:40.120 wire and boarded up businesses, is already preparing for the 0:13:40.120 --> 0:13:44.319 worst possible outcome, a presumed not guilty verdict and justifiable 0:13:44.360 --> 0:13:48.040 civil unrust over yet another killer cop walking away without 0:13:48.160 --> 0:13:50.920 justice being served. But I will continue to have these 0:13:50.920 --> 0:13:55.079 conversations with Glenn, whose illegal optimism gives me much needed hope, 0:13:55.280 --> 0:13:58.440 and other sound legal minds every week on woke af Daily. 0:13:58.559 --> 0:14:00.600 If you want to follow this trial along with me 0:14:00.640 --> 0:14:02.760 and the rest of the woke a F nation, join 0:14:02.880 --> 0:14:05.720 us at patreon dot com slash woke a F for 0:14:05.760 --> 0:14:08.480 just five dollars a month. We are steadily growing this 0:14:08.600 --> 0:14:11.960 community and an effort to make our world a woker place. 0:14:12.559 --> 0:14:15.080 Power to the people and to all the people. Power, 0:14:15.360 --> 0:14:17.480 get woke and stay woke as fuck.