Disaster for Prosecutors as Witnesses Upend Narrative, Testimony Was So Damning That Chauvin's Lawyers Announce Intention to Recall One for His Defense


While many on the left assumed that former Minneapolis police Officer Derek Chauvin should have been found guilty in the murder of George Floyd before the trial even began, that narrative has taken a hit as the trial goes on.

On Tuesday, the prosecution endured a particularly bad day.

Andrew Branca, an attorney with the firm Law of Self Defense, has been covering Chauvin’s trial from the outset, writing for Legal Insurrection. His summary of Tuesday’s proceedings painted a disastrous picture for the prosecution.

Branca described the cross-examinations of state witness Johnny Mercil and medical expert Nicole Mackenzie as “a train wreck of a disaster for the prosecution.”

First, Mercil, a Minneapolis police lieutenant and use-of-force expert, contradicted the prosecution’s argument that Chauvin had acted inappropriately by restraining Floyd.

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“At one point Mercil testified [that] he himself had personally kept a suspect physically restrained until EMS had arrived on scene, behavior which the state has been arguing for over a week was misconduct on the part of Chauvin,” Branca wrote.

The cross-examination of Mackenzie — the Minneapolis Police Department’s medical support coordinator — went just as badly, if not worse, for the prosecution, Branca said. He said the defense attorneys planned to call her back as a defense witness because they believe her testimony could be helpful to their case.

Branca began by detailing Mercil’s witness testimony and direct questioning by prosecutor Steve Schleicher.

“Schleicher did his usual routine, where he portrayed use of force options as being cast in absolute and binary terms,” Branca said. “If A, then B, if X then Y. Any variance of this was either out of MPD policy or at least ‘untrained by MPD’ (an entirely different matter than being outside policy), and hence ‘wrong-act.'”

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He said Schleicher would present hypothetical scenarios lacking context and ask Mercil whether a neck restraint like the one Chauvin used on Floyd would be appropriate, and Mercil would respond that it would not.

While Mercil admitted that a picture of Chauvin apparently kneeling on Floyd’s neck was not evidence of an “MPD trained” restraint, he was never asked whether it was outside of the department’s policy.

After this, defense attorney Eric Nelson was called to cross-examine Mercil. That’s when things started going downhill quickly for the prosecution, according to Branca.

“[W]hen asked if he himself had ever disbelieved a suspect’s claim of a medical emergency as an apparent effort to avoid arrest, Mercil answered that he personally had done so,” the attorney wrote.

“All of this, of course, undercuts the part of the prosecution narrative that is relying on Floyd’s purported pleas and excuses about claustrophobia and anxiety and crying out for mama,” Branca wrote. “Perhaps all of that is real — but a reasonable officer must also consider that maybe much of it is simply an effort to avoid arrest.”

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In addition, Nelson got Mercil to admit that a suspect’s size and behavior could reasonably factor into an officer’s decision about what type of force to use in restraining him, Branca said.

The fact that Floyd was resisting arrest, was much larger than Chauvin and was acting in a way that could lead Chauvin to believe he was under the influence of drugs all could be factors in Chauvin’s determination to use certain force.

The largest blow from Mercil to the prosecution’s narrative came when Nelson showed him “a series of photographs captured from the body worn camera of Officer [Thomas] Lane.” In four separate photos, Mercil conceded that Chauvin’s knee was on Floyd’s shoulder blades rather than his neck.

“This, of course, fundamentally undercuts the prosecution’s narrative of guilt that it was Chauvin’s knee on Floyd’s neck that killed Floyd,” Branca said.

Finally, Mercil admitted that are circumstances where it would be necessary for an officer to hold a leg across the back of a suspect to “ensure control,” possibly for as long as 10 minutes. This flies directly in the face of the prosecution’s argument that Chauvin’s restraint of Floyd was fundamentally inappropriate.

The cross-examination of Mackenzie did not go any better for the prosecution.

Nelson got Mackenzie to admit that officers are trained to “consider not just the suspect, but the totality of the scene,” Branca said. She said that “angry bystanders” could provide a threat to the officer in addition to the suspect.

“We keep seeing Nelson circle back to this reality, and it’s a potent view of the events around Floyd’s death,” Branca said.

“It raises the legitimate question of whether it was, in fact, the angry bystanders who in effect ‘killed’ Floyd by interfering with the officers’ ability to provide Floyd with the attention and care which he’d otherwise have received.”

Mackenzie testified that agonal breathing, which Branca describes as a “last gasp” type of breathing that a dying person might exhibit, could be mistaken for normal breathing, especially if angry protesters were creating outside noise.

Nelson also brought up the idea of excited delirium, on which Mackenzie trained MPD officers. Chauvin himself received this training.

“The importance of excited delirium for the defense is that it explains both a lot of Floyd’s erratic behavior, raises genuine concerns of super-human strength on the part of the already very large Floyd, provides a justification for the sustained restraint of Floyd’s entire body from foot to head as that’s part of the excited delirium protocol for police, and more,” Branca said.

Finally, Nelson questioned Mackenzie about the “load and scoot” method that paramedics used at the scene.

She said that it could be used because of the patient’s need for immediate hospitalization, but it also might have to do with a potential threat to the paramedics by an angry crowd, such as the one present at the Floyd scene.

After the cross-examination, Nelson said he will recall Mackenzie as a defense witness. During that time, Branca said, the defense attorney might dive deeper into the idea of excited delirium, which he was unable to do during the cross-examination because of an objection from the prosecution.

To be clear, all of this is not to say that Chauvin is necessarily innocent or guilty. That is for the court to decide.

However, it does remind us amid the warped media establishment media coverage that there is an actual fair trial taking place for Chauvin, one that might not be going particularly well for the prosecution.

The facts of the case are going to come out during the trial, which is the entire reason for having a trial in the first place.

Chauvin — whose actions on video sparked demonstrations and riots across the country last summer — might be found not guilty, and America must prepare for that possibility.

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Grant is a graduate of Virginia Tech with a bachelor’s degree in journalism. He has five years of writing experience with various outlets and enjoys covering politics and sports.
Grant is a graduate of Virginia Tech with a bachelor's degree in journalism. He has five years of writing experience with various outlets and enjoys covering politics and sports.