Mark Osler watched with astonishment as a medical expert for the defense testified in Derek Chauvin’s murder trial.
Osler, a law professor at the University of St. Thomas School of Law in Minnesota, said he wondered why, in a racially charged case, the defense would rely so heavily on a “white expert,” who was raised in Rhodesia (now Zimbabwe) and trained in South Africa during apartheid.
“He spent much of his life in places where white supremacy was literally a form of government,” Osler said. “People with that background are not necessarily racists, but the symbolic link to historical racism was unmistakable.”
Ultimately, he said, he decided they likely had no better options. The defense called just seven witnesses, including only two experts: a use-of-force expert and the medical expert, Dr. David Fowler.
“I really thought that the defense would have more arrows in their quiver — but I would imagine they had trouble finding credible fact and expert witnesses given the nature of the case,” he said.
It was a conclusion drawn by several legal experts who provided observations about the performance of the prosecution and defense, both of which have now rested their cases after nearly three weeks of witness testimony in the closely watched case.
“The defense was actually weaker than I thought,” said David Schultz, a visiting law professor at the University of Minnesota. “I was expecting more witnesses, more medical testimony.”
Schultz said he suspects other witnesses defense attorney Eric Nelson sought out were unwilling to testify because they were concerned they’d be perceived as being “on the wrong side of history.”
Chauvin is charged with second- and third-degree murder and second-degree manslaughter in the death of George Floyd, who cried out for breath and his mother as lay he pinned to the ground under Chauvin’s knee for what prosecutors have said was more than nine minutes. The trial has laid out the last moments of Floyd’s life in excruciating detail.
Anguished eyewitnesses have testified about their grief at not being able to help him. Medical experts have told jurors just how long it takes a human body to run out of oxygen. Police officers have tried to distance themselves from someone who less than a year ago was one of their own.
And the viral video that shook this nation and others — spurring protests, calls for racial justice and demands for police reform — has been played for jurors, in full or in part, nearly every day.
The prosecution has argued that Floyd died of insufficient oxygen, or asphyxia, caused by Chauvin’s knee pressed to his neck as he lay pinned to the ground with his hands cuffed behind him. The defense has said Floyd’s drug use and a bad heart were to blame.
Chauvin declined to testify, invoking his Fifth Amendment right to avoid self-incrimination. Closing arguments are set to begin Monday.
In all, Osler said, the prosecution was far more effective — not because of the lawyers, but because of their witnesses, specifically, Minneapolis police Chief Medaria Arradondo and Dr. Martin Tobin, a world-renowned pulmonologist. They were among 38 people called to the stand by the prosecution.
“The two strongest witnesses in the trial were Chief Arradondo and Dr. Tobin, both of whom spoke in plain language without ambiguity and from a breadth of experience,” Osler said. “In contrast, the defense witnesses were much less compelling.”
Nelson has argued that Chauvin was merely following the training he’d received throughout a 19-year career, but Arradondo was among a handful of veteran police officers who testified otherwise. Prosecutors were also able to poke holes in the testimony of the defense’s use-of-force expert, Barry Brodd, who testified that Chauvin didn’t use deadly force.
Brodd had testified that Chauvin’s actions were justified, in part, because Floyd was not compliant. A compliant person, he said, would have been “resting comfortably” on the pavement while he was pinned under Chauvin’s knee.
“Did you say ‘resting comfortably’?” prosecutor Steven Schleicher asked Brodd.
“Or laying comfortably,” Brodd responded.
“Resting comfortably on the pavement?” Schleicher asked.
“Yes,” Brodd said.
He eventually conceded that Chauvin’s knee on Floyd’s neck likely caused Floyd pain and therefore could be considered force.
Schultz said he believes the prosecution should count as a win the testimony of multiple medical experts, such as Tobin, a lung and critical care specialist at the Edward Hines Jr. VA Hospital and Loyola University’s medical school in Illinois. Tobin testified that “a healthy person subjected to what Mr. Floyd was subjected to would have died.” He said Floyd died from a low level of oxygen caused by shallow breathing.
Dr. Andrew Baker, the Hennepin County medical examiner who performed an autopsy on Floyd and declared his death a homicide, testified that fentanyl and heart disease had contributed to Floyd’s death but that the police officers’ actions were the main cause.
The more technical and specialized testimony of medical experts and police was balanced with that of everyday people who had been going about their day when they happened upon Floyd and Chauvin.
Darnella Frazier, who was 17 when she recorded the now-viral video and uploaded it to Facebook, gave emotional testimony that Floyd’s death haunts her. Multiple bystanders cried on the stand. They said they felt helpless as they watched Floyd die and that Chauvin seemed indifferent to their pleas.
“They all testified to the horror they saw,” Schultz said. “I think this helps a jury infer a depraved mind or culpable negligence, standards required to prove third-degree murder or second-degree manslaughter.”
“There was a logic and sequence to what they did here,” Schultz added.
Rebecca Kavanagh, a criminal defense attorney in New York who is closely watching the case, said: “What is more surprising to me than the quality of the prosecution is the lackluster performance of the defense. I would contrast this with the high-powered defense team George Zimmerman had, which I think was probably instrumental in his acquittal.”
Nelson, she said, has proven no match for the team of prosecutors: Keith Ellison, Minnesota’s first African American elected attorney general; Steven Schleicher, a former federal prosecutor and veteran trial attorney; Jerry Blackwell, who in June 2020 won a posthumous pardon for a Black man wrongly convicted of rape before the Duluth lynchings of 1920; Matthew Frank, a 21-year veteran of the attorney general’s office; Erin Eldridge, a former federal prosecutor who joined the attorney general’s office in 2018 and several others.
“He’s not terrible,” Kavanagh said of Nelson. “He’s just no match for the prosecution.”
As powerful as the prosecution’s case has been, Kavanagh said, a guilty verdict is far from a sure thing because of the racial makeup of the jury and the possibility for implicit bias to come into play.
Fourteen jurors, including two alternates, have listened to the case.
They include nine women and five men. Eight of the jurors identify as white, four as Black and two as mixed race. They are in their 20s to their 60s.
“I remember it feeling all but inevitable that George Zimmerman would be convicted and then a jury of six women, five of whom were white, acquitted him. We saw in that case that race trumped gender. And we see that time and time again in this country. I fear that with a majority-white jury in this case, it might happen again,” she said. “I fear that with a majority-white jury in this case, it might happen again.”
Kavanagh said she believes the prosecution has done a good job addressing this through the testimony of white witnesses.
“Many of the law enforcement officers who testified against Chauvin were white and, perhaps, most critically, the expert forensic and medical experts have been white,” she said. “Dr. Tobin perhaps was most important here. Objectively, he was just an amazing witness, with probably unassailable credibility, but there’s no doubt that his whiteness, his Irish accent, all of that contributed, in terms of implicit bias, to conveying an appearance of authority.”
One obvious mistake she said the prosecution made was being seemingly ill-prepared for the defense to introduce a theory that carbon monoxide poisoning from auto exhaust played a role in Floyd’s death.
She said prosecutors should have anticipated the defense would introduce doubt that way. Instead, prosecutors had to recall Tobin to the stand as a rebuttal witness to knock down the claim.
“While I think it was helpful to have Dr. Tobin have the final word, it was less helpful to have the final testimony be about what should be a nonissue in the trial, and in some ways recalling him to testify about it could leave jurors to think it is more significant than it is,” she said.
During closing arguments, Schultz said the prosecution needs to remind the jury that to convict Chauvin of murder, they need to find that his restraint of Floyd was a “substantial causal factor” in his death, not that it was the cause. They also will need to make a final attempt at convincing jurors Chauvin had a depraved mind when he knelt on Floyd.
What the defense is going to want to do is confuse the jurors, Schultz and Osler said.
“The defense has much more work to do in closing argument,” Osler said. “The challenge for Eric Nelson will be to stitch together several disparate threads of testimony to form something that will create reasonable doubt.”