WEBVTT - Biden's First Court Picks to Diversify Judiciary 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.600 --> 0:00:13.400 Former President Donald Trump liked to brag about the conservative 0:00:13.440 --> 0:00:17.080 imprint he left on the Federal Judiciary, appointing two hundred 0:00:17.160 --> 0:00:19.919 thirty judges to the bench who were mostly white men, 0:00:20.680 --> 0:00:25.919 who percentage wise has done better than me with judges. 0:00:26.000 --> 0:00:31.760 Tell I'll give you a hit. He appointed one hundred 0:00:31.840 --> 0:00:36.879 percent of the federal judges and one hundred percent of 0:00:36.920 --> 0:00:45.560 the United States Supreme Court George Washington. Now President Joe 0:00:45.600 --> 0:00:49.000 Biden is moving faster than any modern day president to 0:00:49.080 --> 0:00:53.680 reshape the judiciary, announcing a slate of racially diverse nominees 0:00:53.720 --> 0:00:57.240 with a wide range of professional experience. Not a single 0:00:57.280 --> 0:01:00.320 white man made the list, composed entirely of women and 0:01:00.400 --> 0:01:03.200 people of color, and more than a third who served 0:01:03.240 --> 0:01:06.560 as public defenders. Joining me is Professor Leah Littman of 0:01:06.600 --> 0:01:09.960 the University of Michigan Law School. Lea tell us about 0:01:10.000 --> 0:01:13.080 the list of nine women and two men. I think 0:01:13.120 --> 0:01:16.959 that the nominees are exceptionally diversed along several acts. I 0:01:17.000 --> 0:01:19.399 think one of the most important metrics of diversity is 0:01:19.440 --> 0:01:22.440 professional diversity. What type of career they've had thus far, 0:01:22.920 --> 0:01:26.880 it's no secrets that the federal courts contains this number 0:01:27.160 --> 0:01:30.360 of public defenders, and that it's where it has public 0:01:30.400 --> 0:01:33.440 defenders appointed to the federal courts. Two of the three 0:01:33.520 --> 0:01:36.120 presidents nominees to the federal courts of the fields are 0:01:36.160 --> 0:01:39.639 former public defenders, so that by itself is just huge. 0:01:39.840 --> 0:01:42.480 I mean, there's something like less than eight percent of 0:01:42.640 --> 0:01:45.600 currently serving Court of Appeals judges are formal public defenders, 0:01:45.880 --> 0:01:48.920 less than three percent of district judges who are currently 0:01:48.960 --> 0:01:52.279 serving our former public senders, and two of the seven 0:01:52.280 --> 0:01:54.760 nominees to the district courts for former public defenders. So 0:01:54.840 --> 0:01:57.840 the professional diversity is quite striking. In addition to the 0:01:57.840 --> 0:02:00.560 public defenders, you have people who have worked for the 0:02:00.680 --> 0:02:03.720 city and local governments, and so that is also notable. 0:02:04.160 --> 0:02:08.120 The nominees are also demographically diverse. Nine at the eleven 0:02:08.160 --> 0:02:12.359 nominees were women. Thirty percent of all federal judges are 0:02:12.360 --> 0:02:15.280 currently women. There have only been eight black women to 0:02:15.360 --> 0:02:19.120 ever serve as Court of Appeals judges. All three of 0:02:19.240 --> 0:02:23.600 the President's Court of Appeals nominees were black women, including 0:02:23.960 --> 0:02:26.880 judges who would be the first and only black judges 0:02:27.000 --> 0:02:29.240 on that Court of Appeals. So the Court of Appeals 0:02:29.240 --> 0:02:32.239 for the Federal Circuit has never had a black judge. 0:02:32.320 --> 0:02:35.040 Tiffany Cunningham would be the first black judge on that circuit. 0:02:35.320 --> 0:02:39.079 There are currently no black judges serving on the Seventh Circuit, 0:02:39.200 --> 0:02:44.320 a jurisdiction that it's crude Wisconsin and Illinois, and so 0:02:44.919 --> 0:02:48.240 Judge Campus Jackson of the Lulalu would be, you know, 0:02:48.320 --> 0:02:50.600 the only black judge on that court. So I think 0:02:50.639 --> 0:02:54.359 that you know, the nominees would diversify in a lot 0:02:54.360 --> 0:02:57.480 of ways, integrate the courts of appeal, and also add 0:02:57.560 --> 0:03:02.960 considerable professional diversity as well. Former President Trump was quite 0:03:03.000 --> 0:03:08.360 successful in helping to make the federal judiciary more conservative. 0:03:08.680 --> 0:03:11.600 This is just the first strike for Biden, but doesn't 0:03:11.600 --> 0:03:17.360 even make a dent in diversifying the federal bench. I 0:03:17.400 --> 0:03:22.080 think these nominees alone won't make a huge dent just 0:03:22.280 --> 0:03:25.000 because they're small number. But it will make a dent 0:03:25.240 --> 0:03:28.600 because it will integrate several courts of the field that 0:03:28.720 --> 0:03:33.080 don't currently have black judges. So it's significant for that reason. 0:03:33.440 --> 0:03:36.640 It's also significant that several of the district court nominees 0:03:36.920 --> 0:03:39.840 will be the first. It will result in you know, 0:03:39.880 --> 0:03:43.800 the first musclim American federal judge anywhere, the first Asian 0:03:43.800 --> 0:03:46.240 American woman to serve on the DC District Court, the 0:03:46.280 --> 0:03:48.440 first Black woman to serve on the Maryland District course. 0:03:48.520 --> 0:03:52.440 So I think that those are significant achievements and milestones, 0:03:52.640 --> 0:03:55.880 even if numerically speaking, these eleven nominees are not going 0:03:55.920 --> 0:03:58.480 to make a huge dent given the two hundred plus 0:03:58.520 --> 0:04:02.160 Trump nominees. Progress of the activists had been pushing for 0:04:02.320 --> 0:04:06.560 more judges from non traditional backgrounds, as you mentioned, explain 0:04:06.640 --> 0:04:11.640 why that's important. It's important for a few reasons. One 0:04:12.040 --> 0:04:15.720 is it provides for a very different perspective on legal system. 0:04:15.800 --> 0:04:18.839 If you have spent time representing people against the government, 0:04:18.960 --> 0:04:21.880 then if you're someone who has spent representing the government 0:04:21.920 --> 0:04:24.720 and arguing for more government power, if you're someone who 0:04:24.800 --> 0:04:28.440 has seen let's say, less salutary uses of government power, 0:04:28.480 --> 0:04:31.720 then you might be more rightfully skeptical about some exercises 0:04:31.760 --> 0:04:35.200 of government power, or more understanding about different kinds of 0:04:35.240 --> 0:04:37.960 litigants who come before the federal court. There has also 0:04:38.000 --> 0:04:42.599 been some very important empirical research that suggests judges who 0:04:42.680 --> 0:04:46.799 formally represented corporate interests are served as prosecutors are most 0:04:46.839 --> 0:04:51.680 likely to rule against employees and against workers, and so 0:04:51.720 --> 0:04:54.520 we know that some of the professional experience is some 0:04:54.640 --> 0:04:57.560 indication about how they are actually going to decide in 0:04:57.680 --> 0:05:01.240 view pieces in the federal courts. Do you think that 0:05:01.320 --> 0:05:06.520 President Biden was thinking of the evenly split Senate when 0:05:06.520 --> 0:05:10.000 this list was approved. Is there a possibility that any 0:05:10.080 --> 0:05:14.440 of these will be difficult confirmations? So, I don't think 0:05:14.440 --> 0:05:17.440 there's any reason to think that any of these nominees 0:05:17.560 --> 0:05:22.040 will be difficult confirmations. They are all exceptionally well credentials, 0:05:22.600 --> 0:05:26.520 very well regarded, So there's no reason to think that 0:05:26.560 --> 0:05:30.080 these nominees will have difficult confirmations. You know they are 0:05:30.160 --> 0:05:33.800 different and that they have different professional backgrounds, but I 0:05:33.839 --> 0:05:37.200 don't think that should be a cause for a difficult 0:05:37.240 --> 0:05:41.520 Senate confirmation when it seemed like the Democratic Party and 0:05:41.560 --> 0:05:44.359 the leader of the Democratic Party indicated that's something that 0:05:44.400 --> 0:05:47.640 they value. Do you think that progressives will be happy 0:05:47.800 --> 0:05:51.240 with this list? I think that foreign initial lists they 0:05:51.240 --> 0:05:54.839 are and they should be very happy. Um, I don't 0:05:55.279 --> 0:05:57.080 you know. I'm sure that we all have things that 0:05:57.120 --> 0:05:59.240 we would like to see in the next batch of nominees. 0:05:59.360 --> 0:06:02.000 I think I personally would like it if more of 0:06:02.040 --> 0:06:04.800 the District Court nominees had more similar profiles to the 0:06:04.800 --> 0:06:07.760 Court of Appeals nominees as far as their professional background, 0:06:08.400 --> 0:06:11.160 um and age. But it's it's a list that I'm 0:06:11.240 --> 0:06:13.600 very happy with as an initialist is that I hope 0:06:13.640 --> 0:06:16.640 other progressives are as well. Under former President Trump, there 0:06:16.680 --> 0:06:19.760 was an effort to get judges who were very young 0:06:19.839 --> 0:06:22.560 who would be on the bench for decades. Are these 0:06:22.640 --> 0:06:25.000 judges young? So that is part of what I was 0:06:25.000 --> 0:06:27.799 alluding to when I said I hope that the District 0:06:27.839 --> 0:06:31.400 Court nominees in the future more closely resemble the Court 0:06:31.440 --> 0:06:35.200 of Appeals nominees. The Court of Appeals nominees are in 0:06:35.240 --> 0:06:38.880 their early forties or their fifties. The District Court nominees 0:06:38.920 --> 0:06:41.200 are actually on the older side. That still makes for 0:06:41.279 --> 0:06:46.000 nominees that are substantially older than most of President Trump's nominees. 0:06:46.080 --> 0:06:49.480 He was nominating many judges in their thirties and many 0:06:49.520 --> 0:06:52.320 Court of Appeals nominees in their early forties. Very few 0:06:52.360 --> 0:06:55.159 judges were appointed while they were over fifties. So I 0:06:55.200 --> 0:06:58.920 think that perhaps future batches could involve judges who are 0:06:59.360 --> 0:07:02.960 more close resembling the age brackets from which President Trump 0:07:03.040 --> 0:07:05.560 was drawing. But still the Court of Appeals nominees from 0:07:05.560 --> 0:07:10.040 this batch are trending in that direction. Former President Obama 0:07:10.200 --> 0:07:13.320 insisted on having the A B A the American Bar 0:07:13.400 --> 0:07:18.800 Association review the judicial candidates. Biden is not requiring that. 0:07:19.360 --> 0:07:21.720 Do you think that has any impact at all? It's 0:07:21.720 --> 0:07:25.119 not clear that it will or that it should, given 0:07:25.160 --> 0:07:28.040 patch at least one prior administration discarded the A B 0:07:28.200 --> 0:07:32.000 A rating system, and given that there's again some evidence 0:07:32.040 --> 0:07:35.800 of that rating system have historically operated to the detriment 0:07:36.000 --> 0:07:41.600 of groups who are not historically represented in the federal judiciary. 0:07:41.800 --> 0:07:44.160 And I think there are all, you know, good reasons 0:07:44.160 --> 0:07:48.120 by the administration is not requiring abi A setting. Federal 0:07:48.200 --> 0:07:51.760 Judge Katangi Brown Jackson was on the short list for 0:07:51.800 --> 0:07:55.600 the Supreme Court even before Biden put her on this 0:07:55.680 --> 0:07:58.720 list for the DC Appellate Court, which is considered a 0:07:58.760 --> 0:08:02.200 feeder court to the Supreme Court. I think she has 0:08:02.280 --> 0:08:07.120 one very possible future Supreme Court nominee. Her background is 0:08:07.200 --> 0:08:10.440 everything that the President has been. You know, he's interested 0:08:10.480 --> 0:08:13.160 in someone who has served as a public defender. Some 0:08:13.840 --> 0:08:17.680 senacing commission would add some needed demographic diversities to the 0:08:17.720 --> 0:08:20.679 Supreme Court. So she's going to be one of several 0:08:20.720 --> 0:08:23.840 candidates I'd imagined, but likely one of the fronts. Tell 0:08:23.880 --> 0:08:26.720 us a little more about her background, So, Gootanti Brown 0:08:26.800 --> 0:08:30.160 Jackson graduated from Harvard College and Harvard Law School. She 0:08:30.200 --> 0:08:32.920 was an editor on the Harvard Law Review. She clerked 0:08:32.920 --> 0:08:36.120 for judges on every level of the federal court, at 0:08:35.880 --> 0:08:38.760 the District Court where she currently serves on the Court 0:08:38.760 --> 0:08:41.160 of Appeals, and then for the U Supreme Court. She 0:08:41.240 --> 0:08:44.199 clerked for Justice prior Um. She's also clerked for both 0:08:44.720 --> 0:08:49.400 Democratic appointees on the courts and Republican appointees on the Court. 0:08:49.640 --> 0:08:52.880 After clerking, she worked as a public defender. Since becoming 0:08:52.880 --> 0:08:55.920 a judge, she has served on the United States Sentencing Commission, 0:08:56.200 --> 0:09:00.360 which creates rules and regulations defering all federal sentences. So 0:09:00.720 --> 0:09:03.880 she has really worked in a bunch of different areas. 0:09:04.120 --> 0:09:06.240 In addition to public defense and as the judge of 0:09:06.240 --> 0:09:08.880 Defense Commission, she also worked at the law firm Morson 0:09:08.880 --> 0:09:11.679 and Forester her So she's really worked in many different 0:09:11.679 --> 0:09:15.760 sectors of the legal profession and has really achieved much 0:09:15.760 --> 0:09:17.840 of what there is to chieve in the legal profession. 0:09:17.840 --> 0:09:21.199 As well as a d C. District Court judge, Judge 0:09:21.280 --> 0:09:24.280 Jackson has been involved in a lot of high profile cases. 0:09:24.840 --> 0:09:28.959 She's ruled against the Trump administration several times, including in 0:09:29.000 --> 0:09:32.960 the case involving former White House counsel Don McGann, where 0:09:33.000 --> 0:09:36.760 she wrote that presidents are not kings. I wonder if 0:09:36.760 --> 0:09:41.680 that might cause her any problems during confirmation hearings. I 0:09:41.679 --> 0:09:43.719 don't think that it should cause her any problems. I mean, 0:09:43.760 --> 0:09:47.280 her opinions are very well regarded, you know, in the UH, 0:09:47.320 --> 0:09:50.280 in legal circles, and so even though she's been involved 0:09:50.320 --> 0:09:52.760 in some high profile cases, the way that she has 0:09:52.760 --> 0:09:55.160 resolved them, you know, has garnered her a lot of respect. 0:09:55.760 --> 0:10:00.120 Is it helpful to have out there the names of 0:10:00.320 --> 0:10:04.640 the people who are likely to replace a justice. I 0:10:04.679 --> 0:10:07.680 think it's a complicated question. I think we, on one hand, 0:10:07.720 --> 0:10:11.720 don't really want to turn presidential elections into judicial elections 0:10:11.760 --> 0:10:13.839 as well. You know, federal sends are supposed to be 0:10:14.080 --> 0:10:16.920 appointed as confirmed, not running for office, and putting them 0:10:16.920 --> 0:10:19.080 off the ticket I think might struct people as not 0:10:19.200 --> 0:10:23.480 a great way to run a constitutional democracy. Um. You know. 0:10:23.559 --> 0:10:26.559 On the other hand, I think that, uh, it's probably 0:10:26.559 --> 0:10:28.920 good for people to understand that the two parties are 0:10:28.920 --> 0:10:32.480 appointing very different people to the federal court um, and 0:10:32.520 --> 0:10:36.480 so having people understand who are possible contenters, you know, 0:10:37.320 --> 0:10:39.679 under one party is then the other um. It might 0:10:39.679 --> 0:10:41.439 be helpful in that respect, But I think it's a 0:10:41.440 --> 0:10:46.520 really complicated question. In announcing the list, President Biden emphasized 0:10:46.559 --> 0:10:49.439 that this was the earliest batch of court picks by 0:10:49.440 --> 0:10:53.720 a new administration. Is there a reason why he's emphasizing that. 0:10:54.080 --> 0:10:58.480 Is it because the President Obama was criticized for acting 0:10:58.520 --> 0:11:01.520 too slowly? Yeah? I think not only was Pugnent Obama 0:11:01.559 --> 0:11:04.240 criticized for acting toe slowly, but he was criticized because 0:11:04.240 --> 0:11:08.480 he didn't place enough emphasis on appointing federal judges. We 0:11:08.520 --> 0:11:12.000 saw Presidents Trump and Senate Majority leaders and Senate Majority 0:11:12.040 --> 0:11:14.319 Leader Mitch McConnell places a lot of emphasis on confirming 0:11:14.320 --> 0:11:16.559 as many judges as they could, And I think people 0:11:16.640 --> 0:11:19.800 wanted to see a democratic administration values the federal courts 0:11:20.080 --> 0:11:22.200 to the same extent and with the same seal as 0:11:22.240 --> 0:11:25.680 the loss repulplicate administration is. Mitch McConnell had said at 0:11:25.720 --> 0:11:28.360 one point, I'm not leaving any vacancy open, and they 0:11:28.400 --> 0:11:32.840 really packed the courts whenever they could. Well, Joe Biden 0:11:32.960 --> 0:11:37.960 have enough vacancies to be able to to change the 0:11:38.040 --> 0:11:40.320 courts to you know, to flip the courts back to 0:11:40.600 --> 0:11:44.600 more liberal rather than more conservative. I think that that 0:11:44.640 --> 0:11:46.880 remains to be seen. UM. A lot of it depends 0:11:47.040 --> 0:11:50.280 on whether federal judges who are currently eligible to take 0:11:50.320 --> 0:11:53.360 senior status or retired do so. UM. Some of its 0:11:53.440 --> 0:11:57.000 depends on whether you know a Congress might explore adding 0:11:57.040 --> 0:12:00.360 additional judge ships to district judges, as the judiciary compics 0:12:00.360 --> 0:12:03.120 have called for. UM. But I think whether you know 0:12:03.160 --> 0:12:07.040 President Biden is able to make uh, you know, huge 0:12:07.080 --> 0:12:08.920 talk on the federal courts in the same way the 0:12:08.920 --> 0:12:13.080 President Trump does depends UM on those things which are 0:12:13.080 --> 0:12:16.480 a little bit outside of his control and also that 0:12:16.600 --> 0:12:18.800 we just don't know about yet. Thanks for being the 0:12:18.840 --> 0:12:21.760 Bloomberg Law Show. Leah. That's Professor Leah Littman of the 0:12:21.840 --> 0:12:27.359 University of Michigan Law School. In a downtown Minneapolis courthouse 0:12:27.400 --> 0:12:31.640 that has been fortified with concrete barriers, fences and barbed wire, 0:12:32.160 --> 0:12:35.120 Testimony began this week in the trial of former police 0:12:35.160 --> 0:12:38.920 officer Derek Chauvin on charges of murder and manslaughter in 0:12:38.960 --> 0:12:42.240 the death of George Floyd, a death that ignited months 0:12:42.280 --> 0:12:46.200 of protests for racial justice and against police brutality. The 0:12:46.240 --> 0:12:49.800 prosecution began its opening statement with the video seen around 0:12:49.800 --> 0:12:53.000 the world of Chauvin pressing his knee into Floyd's neck 0:12:53.280 --> 0:12:57.280 for nine minutes in twenty nine seconds. Prosecutor Jerry Blackwell 0:12:57.360 --> 0:13:00.560 said that Chauvin didn't let up eve and after a 0:13:00.640 --> 0:13:04.320 handcuffed Floyd said twenty seven times that he couldn't breathe. 0:13:05.200 --> 0:13:11.480 You will learn that on May Mr Derek Chavin betrayed 0:13:11.559 --> 0:13:18.920 this badge when he used excessive and unreasonable force up 0:13:18.920 --> 0:13:23.360 on the body Mr George Floyd. But defense attorney Eric 0:13:23.400 --> 0:13:26.840 Nelson said that Chauvin was not to blame for Floyd's death. 0:13:27.679 --> 0:13:31.240 The evidence will show that Mr Floyd died of a 0:13:31.280 --> 0:13:35.880 cardiac arrhythmia that occurred as a result of hypertension, his 0:13:36.040 --> 0:13:40.880 coronary disease, the ingestion of methemphetamine and fentanel, and the 0:13:40.920 --> 0:13:44.960 adrenaline throwing flowing through his body. Joining me as former 0:13:45.000 --> 0:13:50.800 public defender Krista Groschek, managing attorney of Groshek Lawn, Minneapolis, CHRISTI, 0:13:50.880 --> 0:13:53.280 what do you think of the prosecution strategy of not 0:13:53.440 --> 0:13:58.199 waiting playing the entire video during the opening statement. It 0:13:58.240 --> 0:14:00.640 was a great strategy for the practice custion. I mean, 0:14:00.640 --> 0:14:03.160 that's the most compelling piece of evidence that they have, 0:14:03.520 --> 0:14:07.040 and the way that they sort of encapsulated that center 0:14:07.080 --> 0:14:10.120 piece was with colorful language, like the word play. They 0:14:10.160 --> 0:14:13.600 talked about how Chauvin betrayed is badge. He wouldn't let up, 0:14:13.640 --> 0:14:15.840 he wouldn't get up. We heard that over and over again. 0:14:16.400 --> 0:14:19.520 We talked about how bystanders called the police on the police, 0:14:19.760 --> 0:14:23.240 we heard about the blood choke. That video, you know, 0:14:23.400 --> 0:14:26.920 ensconced with that word play was very effective. It's a 0:14:26.920 --> 0:14:30.359 hard video to watch, no doubt. What about the defenses 0:14:30.480 --> 0:14:35.240 opening statement and does it show the strategy ahead? Well, 0:14:35.280 --> 0:14:38.320 I think it was a foreshadowing, as most opening statements 0:14:38.320 --> 0:14:40.960 are about where the defense is going to go, and 0:14:41.080 --> 0:14:43.720 we really haven't heard much about that in some of 0:14:43.760 --> 0:14:45.800 the pre trial motions. So what we were able to 0:14:45.920 --> 0:14:49.640 learn is that the defense plans to push on this 0:14:49.720 --> 0:14:53.000 idea that because of where the bystanders who did the 0:14:53.040 --> 0:14:56.760 filming were positioned, you couldn't see what was happening on 0:14:56.800 --> 0:15:00.400 the other side of the police car. You couldn't see 0:15:00.760 --> 0:15:03.080 what was happening with his legs. He couldn't see what 0:15:03.120 --> 0:15:05.480 the officers were doing. You just see, you know, sort 0:15:05.520 --> 0:15:08.960 of his head and shovin around her about his neck 0:15:09.000 --> 0:15:12.160 and back. The defense also talked about the whole part 0:15:12.200 --> 0:15:15.840 of the story being the fifteen minutes before bystanders started 0:15:15.840 --> 0:15:19.080 filming with Floyd in this position. They talked about the 0:15:19.120 --> 0:15:22.840 whole story being captured on a city camera perched atop 0:15:23.080 --> 0:15:25.960 a high pole. They talked about the whole story being 0:15:26.160 --> 0:15:30.320 floyd longstanding use of drugs, his medical conditions, and they 0:15:30.320 --> 0:15:32.960 talk about how, you know, use of force is something 0:15:33.080 --> 0:15:36.040 that even police officers don't like, but it's a necessary 0:15:36.080 --> 0:15:40.360 podfit job. It was a very netered, I think, and 0:15:40.720 --> 0:15:44.880 mindful opening. And you know, really what I think Nelson 0:15:44.960 --> 0:15:48.480 was doing was he's trying to step back the emotion 0:15:49.080 --> 0:15:53.000 that that video certainly caused hers to feel and get them, 0:15:53.200 --> 0:15:56.840 you know, thinking in their brains about common sense, the 0:15:56.880 --> 0:15:59.640 whole story. You even use some legal terms like totality 0:15:59.640 --> 0:16:02.440 of the scumstances. And then he focused a lot on 0:16:02.480 --> 0:16:07.120 causation as to those medical issues, as to being diagnosed 0:16:07.120 --> 0:16:12.280 with COVID, having heart issues, us for the opioids. He 0:16:12.360 --> 0:16:16.160 talked about the County medical examiner's findings about how it 0:16:16.240 --> 0:16:20.120 wasn't a really clear cut case of cause of death, 0:16:20.240 --> 0:16:23.360 and he talked about how once that sort of tenuous 0:16:23.400 --> 0:16:26.920 finding was made, then prosecutors went out and shocked the case, 0:16:26.960 --> 0:16:29.640 if you will, to try to get more medical examine 0:16:29.640 --> 0:16:32.880 our opinions because they didn't like Bakers. And so I 0:16:33.120 --> 0:16:35.720 think it was a very like I said, a very needed, 0:16:36.240 --> 0:16:40.280 a very thoughtful approach about how jurors really need to 0:16:40.280 --> 0:16:42.160 get into their brains and get out of their hearts 0:16:42.200 --> 0:16:45.440 and emotions to decide this case. So, is the central 0:16:45.520 --> 0:16:49.840 question in the case going to be what caused Floyd's death? 0:16:50.320 --> 0:16:53.760 Something that the medical experts are going to testify about. Well, 0:16:53.800 --> 0:16:57.080 this case should be about causation. This case should not 0:16:57.240 --> 0:17:01.200 be about unauthorized use of force or or we heard 0:17:01.240 --> 0:17:03.760 over and over again on the productures opening nine nine, 0:17:04.280 --> 0:17:07.600 this case is sort of flip from the traditional case. 0:17:07.800 --> 0:17:11.040 So typically speaking, prosecutors are all about, you know, this 0:17:11.160 --> 0:17:14.000 is the law black, and why let's put the illegal 0:17:14.080 --> 0:17:16.560 questions out there and answer the illegal questions without emotions. 0:17:16.680 --> 0:17:20.359 Well it's not flips. Prosecutors are talking about all of 0:17:20.440 --> 0:17:25.400 the things that amount to making an emotional decision. Police brutality. 0:17:25.920 --> 0:17:28.720 They did say that it shouldn't be about race, but 0:17:29.040 --> 0:17:31.520 of course everybody in there is thinking that's what it's about. 0:17:31.560 --> 0:17:35.119 So we see the prosecution talking about a lot of things, 0:17:35.200 --> 0:17:38.760 but they didn't talk a whole lot about causation. They 0:17:38.840 --> 0:17:41.600 referenced it briefly and that he's been a drug user, 0:17:41.720 --> 0:17:44.240 but that's not what caused its death. The defense is 0:17:44.320 --> 0:17:46.680 arguing that that is in fact what you see here, 0:17:47.040 --> 0:17:50.199 and that's based upon medical evidence, based upon what was 0:17:50.240 --> 0:17:52.800 found during the course of the autopsy. One of the 0:17:52.920 --> 0:17:57.040 things that's interesting about Baker's autopsy is that his heart 0:17:57.080 --> 0:18:00.639 was so unremarkable. The pictures weren't even taken of George 0:18:00.640 --> 0:18:04.440 Floyd's heart, which again is like a causation factor there 0:18:04.480 --> 0:18:07.399 as well. So we should be talking about causation, and 0:18:07.480 --> 0:18:10.000 that's what the law said. If Derek Chavin didn't cause 0:18:10.080 --> 0:18:13.200 his death by the actions that he took, whether they're distasteful, 0:18:13.240 --> 0:18:15.639 whether we don't like it, whether we think that we 0:18:15.720 --> 0:18:19.280 have a broken, biased, racist system, he didn't cause the death. 0:18:19.280 --> 0:18:22.639 He's not guilty, and that's what this trial should be about. 0:18:22.680 --> 0:18:24.680 And the focus really should be on what the experts 0:18:24.680 --> 0:18:27.240 have to say and which experts the jury believes them one. 0:18:27.480 --> 0:18:30.879 So with the question of causation at the forefront, this 0:18:30.960 --> 0:18:33.280 is going to end up being a battle of the experts, 0:18:33.359 --> 0:18:35.560 right it should be. It shouldn't be about all this emotion. 0:18:35.640 --> 0:18:38.000 It shouldn't be about betraying the grade. It shouldn't be 0:18:38.040 --> 0:18:40.520 about a blood show cold in the number of minutes. 0:18:40.640 --> 0:18:43.520 It should be about causation. And the experts are the 0:18:43.560 --> 0:18:46.520 really only ones that can educate the jury about whether 0:18:46.600 --> 0:18:49.120 or not the state can prove that case. The defense 0:18:49.280 --> 0:18:52.959 in the opening statement said that Chauvin did what he 0:18:53.080 --> 0:18:55.639 was trained to do. Do you think he's going to 0:18:55.680 --> 0:18:59.399 try to make the argument that this was something that was, 0:19:00.040 --> 0:19:03.280 you know, an authorized show cold or whatever. Is he 0:19:03.359 --> 0:19:06.679 going to try to make that argument? I think so, 0:19:06.800 --> 0:19:09.000 And I think he's going to do that based upon 0:19:09.480 --> 0:19:14.240 a reference to that May arrest of flood, where he 0:19:14.280 --> 0:19:17.720 acted really similarly and you know, it was really out 0:19:17.760 --> 0:19:21.560 of control, based upon what seems to have been at 0:19:21.600 --> 0:19:24.520 that point his use of fentanyl, the very same fentinel 0:19:24.640 --> 0:19:27.720 till a year prior. So then yeah, I do think 0:19:27.720 --> 0:19:30.919 they're going to bring in information and testimony that the 0:19:31.040 --> 0:19:33.320 only choice in an officer has is to try to 0:19:33.359 --> 0:19:37.840 subdue that ARRESTI to avoid potential harm to direct and 0:19:38.040 --> 0:19:40.159 or others. So I do think that's exactly where the 0:19:40.200 --> 0:19:44.000 defense is going. Is that wise because if you look 0:19:44.040 --> 0:19:48.119 at that prior incident, in that incident, the police talked 0:19:48.200 --> 0:19:52.000 him down, they arrested him without any real incidents. So 0:19:52.440 --> 0:19:56.040 does that backfire on the defense. Well, I think the 0:19:56.040 --> 0:19:58.240 defense is duck with the fact that this is what 0:19:58.359 --> 0:20:02.000 children chose to do under the circumstances. Things that are 0:20:02.040 --> 0:20:06.119 different invent from the May nineteen event is that we 0:20:06.200 --> 0:20:09.520 do have video footage where there was fifteen minutes of 0:20:10.000 --> 0:20:11.960 back and forth not wanting to get in the car, 0:20:12.119 --> 0:20:14.760 the car I think, actually moving. It can be seen 0:20:14.760 --> 0:20:17.560 in the video that the police vehicle was moving because 0:20:17.600 --> 0:20:21.200 there was enough resistance comployd at that time. So I 0:20:21.240 --> 0:20:25.280 think there is a difference in how those two events 0:20:25.280 --> 0:20:27.840 played out. And it was at that point when things 0:20:27.840 --> 0:20:30.159 were starting to ramp up that Cholvin shows up on 0:20:30.200 --> 0:20:33.280 the scene. He's the senior officer. He decides that he 0:20:33.400 --> 0:20:37.520 could be safe in the situation where Mr Floyd is experiencing, 0:20:37.600 --> 0:20:40.480 you know, some kind of delirium and given his size, 0:20:40.560 --> 0:20:42.960 could be dangerous. So I think the defensive stuck with that. 0:20:43.040 --> 0:20:44.359 I think they have to work with that, and I 0:20:44.400 --> 0:20:47.880 think on cross examination they can deal with the police 0:20:47.960 --> 0:20:52.000 chief criticism of how Chauvin behaved from the point that 0:20:52.119 --> 0:20:54.240 of course the police are going to endorse it. Now 0:20:54.600 --> 0:20:57.840 to do so, would you know, implicate many others, not 0:20:57.920 --> 0:21:00.320 just Show, but everybody you know pushed that, and it's 0:21:00.359 --> 0:21:02.280 doing what they can do to distance and stuff from 0:21:02.280 --> 0:21:05.080 Show then right down to the use of force experts 0:21:05.119 --> 0:21:09.000 and to people in the Minneapolis Police Department. Nobody's aligning 0:21:09.040 --> 0:21:11.000 with him. And you know, I think Nelson can argue 0:21:11.000 --> 0:21:14.639 that those people did that strategically for themselves and for 0:21:14.720 --> 0:21:18.040 the department. Is there anything remarkable in the defense or 0:21:18.119 --> 0:21:20.600 is this the kind of defense that we've seen before 0:21:20.720 --> 0:21:25.560 in cases where police officers are defendants. I believe that 0:21:25.720 --> 0:21:28.000 in these cases that have come before, you know, we've 0:21:28.000 --> 0:21:30.800 seen a lot of not guilty verdicts, a lot He's 0:21:30.800 --> 0:21:33.320 seen a lot of officers not even charged, like the 0:21:33.520 --> 0:21:36.639 Eric Garner officers, they weren't even charged, and you know 0:21:36.680 --> 0:21:40.080 that's a similar case. And so yeah, I believe the 0:21:40.119 --> 0:21:42.600 defense finds themselves in a position where they have to say, 0:21:42.800 --> 0:21:46.280 given their specific training, given their experience, given what they 0:21:46.320 --> 0:21:49.400 know of the risks and dangers of encountering people under 0:21:49.400 --> 0:21:52.440 the influence on the street, that they need to take precautions, 0:21:52.480 --> 0:21:55.879 and they make these split second decisions. Now, the prosecution 0:21:55.920 --> 0:21:58.960 is anticipating the argument you heard in the opening statement, right, 0:21:59.080 --> 0:22:01.560 there was no split second decision here, And they break 0:22:01.600 --> 0:22:03.400 down the second and say there was of the five 0:22:04.880 --> 0:22:08.440 sections that were available for split second decision making, there 0:22:08.480 --> 0:22:11.040 was no split second to anything as a long sort 0:22:11.040 --> 0:22:15.320 of prolonged, continued decision. But to answer your question, I 0:22:15.359 --> 0:22:17.560 believe the strategy is un effective and I think it's 0:22:17.600 --> 0:22:20.800 what's allowed for officers to receive not jokey verdicts and 0:22:21.000 --> 0:22:25.359 no charges at all. The judge allowed prosecutors to add 0:22:25.359 --> 0:22:28.800 a third degree murder charge to the charges of second 0:22:28.800 --> 0:22:32.240 degree murder and manslaughter. Does that give the jury a 0:22:32.320 --> 0:22:35.440 compromise position or a middle ground if if they can't 0:22:35.480 --> 0:22:38.760 come to a decision on the more serious charge. It does. 0:22:39.000 --> 0:22:42.680 Third degree the prave mind murder is an interesting charge 0:22:43.119 --> 0:22:46.520 in that two months ago, it was not a viable 0:22:46.600 --> 0:22:51.520 charge based upon Minnesota's case law hundred year history of 0:22:51.720 --> 0:22:56.680 applying that charge. Generally speaking, that charge was only appropriate 0:22:56.760 --> 0:23:00.040 when a person drove a hundred miles three crowd of 0:23:00.119 --> 0:23:03.800 downtown streets, whether their actions were just the praved mind crazy, 0:23:03.840 --> 0:23:06.119 but they weren't directed at one person. There was a 0:23:06.119 --> 0:23:09.920 police officer, Mohammed Nur who was convicted all the depraved mind. 0:23:10.400 --> 0:23:15.680 When that happened, defense attorneys and in most people engaged 0:23:15.760 --> 0:23:18.240