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Brian Lehrer: Brian Lehrer on WNYC. Testimony has now begun in the trial of former Minneapolis police officer Derek Chauvin accused of murdering George Floyd on Memorial Day last year. In Minnesota, unlike here in New York, they allow cameras in the courtroom so we can play some excerpts from the opening arguments and early witnesses and get some analysis of them. Here's the- or I should say one thing to know is that the prosecution played for the jury, the full gruesome video of the last nine minutes of George Floyd's life.

I know we always talk about 8 minutes and 46 seconds. This video ran 9:29 with Chauvin's knee on his neck. The prosecutor then basically told the jury, you can believe your own eyes. One of the witnesses yesterday was the 911 dispatcher who first sent officer Chauvin and his colleagues to the scene, Jena Lee Scurry. She told the prosecutor interviewing her on the stand that she was disturbed by what she was hearing once they got there.

Jena Lee Scurry: There just something wasn't right. I don't know how to explain it. It was a gut instinct to tell me that now we can be concerned.

Male Speaker 2: What did you decide to do?

Jena Lee Scurry: I took that instinct and I called the circuit.

Brian Lehrer: With us, to do legal analysis, is Elie Honig, CNN legal analyst and host of the Legal Affairs Podcast. Third degree, he also has a book coming out called Hatchet Man: How Bill Barr Broke the Prosecutor's Code and Corrupted the Justice Department. Previously, Elie was Assistant US Attorney in the Southern District of New York, Director of the Criminal Justice Division and the New Jersey Attorney General's Office, and in addition to his media work, he's Executive Director at the Rutgers Institute for Secure Communities. Elie, I know you're in heavy rotation on TV and watching the trial closely. Thanks for giving us this time, welcome to WNYC.

Elie Honig: Thanks, Brian, so glad to be back with you, so much to discuss.

Brian Lehrer: I can only imagine what it must be like for a juror to sit through the whole video, watching the poor man die. How important is the video itself as an exhibit in this case and the way the prosecution used it within the opening argument?

Elie Honig: The video is the central fulcrum of this entire case. It is exhibit A, and it is and will be throughout this the touchstone for everything that happens in the case. I'll tell you from the prosecutor's point of view, it's the best piece of evidence. It's the most important piece of evidence. Now, some people who watched the prosecutor's opening argument yesterday, I think, were a little surprised by how non-dynamic it was, he was soft-spoken, there was no histrionics, there was no pounding of the table or anything like that.

He just essentially hit play on the tape and then gave a little bit of explanation. I think, given the power of that evidence, I think it was a smart, strategic move. He doesn't need to be the star of the case. That video is the prosecution star for the case.

Brian Lehrer: Here's a clip from the Defense Attorney, Eric Nelson, yesterday telling the jurors that there is more to this case than what happened during those nine minutes, that it's also about what came before.

Eric Nelson: What was Mr. Floyd's actual cause of death? The evidence will show that Mr. Floyd died of a cardiac arrhythmia that occurred as a result of hypertension. It's coronary disease, the ingestion of methamphetamine and fentanyl and the adrenaline throwing, flowing through his body, all of which acted to further compromise an already compromised heart.

Brian Lehrer: He also blamed the crowd that was forming and was alarmed by what they saw Chauvin doing to Floyd.

Eric Nelson: They're screaming at him, causing the officers to divert their attention from the terror of Mr. Floyd to the threat that was growing in front of them.

Brian Lehrer: Your thoughts, Elie Honig.

Elie Honig: The first defense there is the causation defense, and we will hear throughout this trial testimony from medical examiners and other scientific experts, the defense is theory essentially is that somehow Derek Chauvin's knee to George Floyd's neck did not contribute to his death, that his death was instead caused by a combination of his existing medical conditions and the fact that he had drugs in his system, which he did according to the toxicology, which is the blood reports. The problem with that is, first of all, it's contradicted by the actual medical examiners' conclusions.

Now it's complicated because there were two medical examiners that came to conclusions for the prosecution. Both of them concluded that this was homicide and that Chauvin's conduct had some contributing cause to Derek Chauvin's death. It's important to understand, the prosecution doesn't have to show that Chauvin's knee to the neck was the only cause of death. They have to show that it was one of the substantial contributors to his cause of death. If there were multiple causes of death, but the knee to the neck was one of them, then the jury can convict. That argument will play out largely on the medical scientific playing field.

The second argument that there was this unruly crowd that distracted Chauvin, that to me is a complete loser of an argument. I would not have made that if I was a defense lawyer, I think it undermines your credibility to make a weak argument like that. First of all, we've seen the crowd. That crowd was actually not only restraints. They were actually fairly on point, the things they were pointing out that Chauvin was doing looked to be exactly correct.

The idea that I lost track, I'm pinning this man to the ground, he's rear handcuffed, his face is in the concrete. I'm pinning him to the ground for 9.5 minutes, but I lost track because people were making noise on the sidewalk. To me, that is a ridiculous argument. That's not going to help the defense.

Brian Lehrer: Even the fact that they used it, it strikes me as a non lawyer that it's a classic two-part defense for almost anything. My client acted properly, but if you believe he didn't act properly, it wasn't his fault.

Elie Honig: Yes. That is a decision that lawyers have to grapple with a lot of times. Do I make the either or argument, or look, as you said that a lot of people hear that argument and go, "Which one is it?" Or do you just choose your best one and go with that? I always tended towards the latter. To me, it's more persuasive to just say, "Here's our argument. Bang. Number one, our one and only strongest argument is this."

Brian Lehrer: Yes. In this case, I guess the prosecutor could turn around and say, "Oh, you're actually arguing that the angry crowd, angry at him for appearing to be killing George Floyd made him kill George Floyd. Okay, sure.

Elie Honig: To me, the crowd actually plays the other way. I think the prosecution is and will continue to focus on the crowd, because if Chauvin somehow didn't realize he was hurting this person, or if Chauvin didn't realize somehow that he was snuffing the life out of this person, the crowd was letting him know. The crowd is saying, "He can't breathe. You're going to kill him." Over and over and over. I think that shows that Chauvin was told throughout those nine minutes exactly what he was doing.

Brian Lehrer: Listeners, we can take a few phone calls for Legal Analyst, Elie Honig, on the Derek Chauvin trial, your legal analysis questions, 646-435-7280, 646-435-7280, or you can tweet a question for Elie @BrianLehrer. I want to come back to what you raised a minute ago. The fact that there are two different medical examiners' reports that we're likely to see as evidence and that probably both examiners will testify. One is the official county medical examiner, Hennepin County, where Minneapolis is, and the other is a private one hired by George Floyd's family. How much do their two reports affirm or conflict with one another?

Elie Honig: It's not great for the prosecution. As a prosecutor, you don't want to have two reports that say different things, but there are inconsistencies and there are consistencies. The official Hennepin County medical examiner's report essentially concluded that the cause of death was a heart attack brought on by Chauvin's restraint of George Floyd. The private medical examiner hired by the family concluded that the cause of death was asphyxiation caused by Derek Chauvin.

Now, they're inconsistent in obvious ways, but they aren't, at least if you're the prosecutor, you can live with it because they're consistent in concluding, A, that this was a homicide, this was a death that somebody else caused on George Floyd, and B, that Derek Chauvin's actions had some substantial contributing impact on that debt. If I'm the prosecutor, I'm okay with that. It's not ideal. It will give the defense some room to work, and you just hope that the jury doesn't come away from this confused to the point where they find reasonable doubt if you're the prosecutor.

Brian Lehrer: The official one seems really strong on its own. From what I could tell as you're describing it and from what I've read, Chauvin's knee on George Floyd's neck caused a heart attack. Isn't that enough to, almost by itself, convict Chauvin of at least manslaughter unintentional homicide, or what you described in your podcast as depraved mind murder, which is also charged with knowing the potential consequences of that sustained pressure.

Elie Honig: Yes. If the jury accepts that conclusion, if I'm the prosecutor I'm happy, because it opens the door for them to convict really at all three counts. The two you mentioned, plus the top charge in terms of penalty, which is actually different than the others. The prosecution for that top charge has to prove that Chauvin intentionally assaulted George Floyd, didn't necessarily mean to kill him, but intentionally assaulted him, meaning, used some form of excessive force, and that his death resulted. Yes, the good thing, if you're the prosecutor, is, if the jury accepts either one of those two reports that you should be able to get a guilty verdict.

Brian Lehrer: Let’s take a phone call. Olmo in Newark, you're on WNYC, thanks so much for calling in. Ops, Olmo, you don't have to call us again, you're already on. Do we have Olmo? Okay, I guess not. Give me a minute and we'll try another caller. I'm going to play a clip here of Sean Hannity, and I want you to tell me if you think something like this could be used as evidence. Back when this happened, Fox News was not treating Derek Chauvin sympathetically, for example, here's Hannity three days after Floyd died.

Sean Hannity: Four officers have now been fired. I look at this videotape, there's nothing that I like. What I see at eight minutes, and as a person that has now been trained in mixed martial arts for seven straight years, this is what I do whenever you go for anybody's neck for any length period of time, it will be game over. That’s a very dangerous spot. It could have to do with lack of training, abuse obviously, and you can see from the crowd that people are reacting.

Brian Lehrer: Here's Hannity a few weeks later on June 10th.

Sean Hannity: A bad cop is a bad cop, and by all means, by the way, the damage was real to the country. The damage in Minneapolis is real to the country.

Brian Lehrer: Now, I have a political analysis of that, but that's not a legal analysis. Is this evidence?

Elie Honig: Sean Hannity's statements are not evidence in any court of law that I know of, or certainly not in this court. It's interesting to hear him change tone. One thing that I found that was interesting is the defense lawyer yesterday, really tried to take the politics and the media glare out of it. He said something in his opening like, "This is not about social causes, this is not about political causes, this is about the facts in this case." Look, we're going to have this enormous media glare. Sean Hannity, I guess I'll not comment on his credibility, but I think what he said the first time made a heck of a lot of sense, and that'll be a part of the case, the vulnerability in somebody's neck.

In fact, the witness who's testifying right now has his background in mixed martial arts, Mr. Williams, and he testified yesterday about how he recognized, he had this piece of testimony where he said that at the time this is happening, he said, that's a blood choke, and Derek Chauvin looked up at him and locked eyes with him. That, to me, is a really compelling piece of evidence that I think will stick with the jury.

Brian Lehrer: My political analysis is that, when this first happened, there was concern on the right about raising the larger questions of systemic racism and excessive use of force by police as a larger problem, and politically, the point might have been to argue that once this video came out and everybody saw how really horrible this looked and how obvious it looked, that this was exceptional, rather than an example of systemic racism by police, but in doing so, they were convicting Derek Chauvin. I don't know if you do political analysis on CNN, as well as legal analysis.

Elie Honig: Yes, I think that's an interesting point. They're going to have to decide, do they cut bait on Derek Chauvin or do they defend him? I think his actions are very difficult to defend, and I think the reason this trial’s resonating so broadly in this country and internationally, I've done international media on this, is because it is seen as a symptom of a system that has deep-seated inequities. That's not to say that people are being killed by the cops every day, it's fairly infrequent, but it happens far too much, and when it happens, it is a really damning statement about the nature of our police system and our criminal justice system.

Brian Lehrer: This is WNYC FM HD and AM New York, WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex. WNJY 89.3 Netcong and WNJO 90.3 Toms River, we are a New York and New Jersey Public Radio, we're talking about evidence from day one, and the prosecutor's and defense's opening arguments in day one of the Derrick Chauvin Trial in Minneapolis, and Olmo in Newark is back with us now. I think he's actually connected. Hi, Olmo, you're on WNYC.

Olmo: Hi, good morning, Brian. Yes, I'm not sure if I heard it correctly, was that the defense on the opening statement regarding the officers being distracted by the crowd yelling at them?

Elie Honig: Yes, it was.

Olmo: I see that as a distraction, I think that's a ploy. Obviously, any conscientious person that sees another person being assaulted and possibly dying right in front of them would cry out, would call out, they didn't physically accost the officers, they didn’t attack most of them, and I was telling your screener that, being such a conscious person even if it was a stranger, I would have tried to intervene, I would have risked my freedom and [unintelligible 00:15:47] to save that man's life.

He was somebody's father, brother, son. If I were to go to jail for that, he would still be alive, I would have took that loss, that L as we say. Just like the civil rights marches did to get voting rights they wanted, they took to get locked up, they broke the law, the civil law, and got locked up. It's nonsensical that you think you’re just going to stand there and just twiddle your thumbs and watch somebody be killed and you don’t at least say something or do something.

Brian Lehrer: Trying to put the crowd that did try to do that in a bad light. I hear you Olmo, which is what the defense is trying to do. Elie, briefly, did you want to add anything to that?

Elie Honig: No, I agree exactly with what the caller said. I think this is why that argument is a loser. I think that's a perfect example right there why a good person with good common sense would reject that argument.

Brian Lehrer: Joe in Montclair, you're on WNYC. Hi, Joe.

Joe: Good morning, gentlemen. Question for you, with respect to his defense. It's my understanding, I could be wrong that the knee to the neck was an approved procedure by the police department. Does that not work to the benefit of the police officer, as well as the fact that one of the results of that, and apparently it had been applied many, many times, is that people pass out, and I got to believe they pass out because they can't breathe. Does that not play into the officer's defense?

Elie Honig: Let me, if I can address that. We'll see this will be one of the battlegrounds for this trial was this an approved tactic, but I'll say this, I strongly doubt, I've worked with a lot of police departments, I strongly doubt that 9.5 minutes is approved police procedure. Also, let's remember in this case, the fight was over. George Floyd was rear-handcuffed behind his back, face down on the pavement. While there may be times where somebody is not yet restrained, where you need to use perhaps more extreme tactics, and again, I don't think a choke hold for 9.5 minutes is ever warranted under police procedure, so I think you have to look at all the circumstances here.

This will be an issue with this trial. In the opening argument, the prosecutor said that Chauvin went way beyond what police are permitted to do and his defense said the opposite. They said what he did was by the book, so that'll be one of the main disputes in this trial.

Brian Lehrer: You made a point in your podcast Third Degree that I want to bring on to the air here, because I think it's really important, that even if the defense's central argument is you have to pay attention to what happened and what George Floyd's condition was before the 9 minutes and 29 seconds of the video, nothing really matters. The prosecution could argue about any way that George Floyd was trying to resist at the beginning because he was subdued, and once he was subdued, it's the officer's behavior at that point that he's on trial for.

Elie Honig: Exactly right. We're going to hear a lot of testimony and evidence in this case about, was George Floyd resisting? At times he was, at times he was not. Was he fighting, how big and strong was he, how big and strong were the cops? The defense lawyer talked about that in his opening argument. Ultimately, if I'm prosecuting this case, my argument to the jury, and I think it makes sense, is, none of that matters. Look, it'll all come into this trial because it's relevant sort of as stage setting and background and that kind of thing.

What matters is, from that moment when George Floyd was rear-cuffed face down on the sidewalk. First of all, at that point, it's over. He's in custody, he can't go anywhere, and at that point, that's when the knee comes down on the neck. If I'm the prosecutor, I would argue, everything that comes before that, just background doesn't matter, just noise, what really matters is those 9.5 minutes. That's what this case is about.

Brian Lehrer: To the caller's question about whether this is a sanctioned police procedure, my understanding is that the police chief of Minneapolis, the current police chief is going to be a witness to testify against Derek Chauvin and say that is not sanctioned police procedure. Is that your understanding?

Elie Honig: Yes. That's how I understand it. I think that there may be other experts as well. I'm interested to see how Derek Chauvin's defense is going to argue that it was okay. I suspect what they may try to do is take certain pieces of police training out of context and argue that generally speaking perhaps there are some schools of thought or some methods of training that permit choke holds in some very limited circumstances.

I think they're coming more and more under question, but I imagine that's what the defense will do to try to make that argument.

Brian Lehrer: We'll take one more caller. Our lines are full of all kinds of questions about this case, but we have time for one more. Tessa in Manhattan. You're on WNYC with CNN legal analyst, Elie Honig. Hi.

Tessa: Hello. Thank you. How is the prosecution going to make use of the fact that Chauvin's left hand was in his pocket for the entire 9.5 minutes, which suggested, to me, that he was nonchalant and just totally disrespectful with swaggering?

Elie Honig: Yes. That's a good detail. It's an important detail. I'm not sure the prosecution is going to argue that that shows he was nonchalant. I think what they're going to argue, and we got a taste of this yesterday, is that he was actually trying to leverage as much of his body weight as he possibly could through his knee that was on George Floyd's neck. The witness yesterday, Mr. Williams, he has this mixed martial arts background.

For some reason, the defense lawyer did not object when he went on this long speech explaining leverage points and choke points, and he was showing the jury using the video. I think it pretty compelling manner how, if you look Chauvin, is using his feet. He's shifting his weight on his feet. I think his hand in his pocket pressing down on his leg is also part of that pressure.

If I'm prosecuting this case, I think I'm arguing to the jury, not only is he nonchalant, he's actually trying to maximize the leverage on this most vulnerable part of any human being's body.

Brian Lehrer: Two quick questions from me before you go. One, your CNN colleague, Bakari Sellers, also an attorney. Bakari Sellers said the defense did a good job of putting George Floyd on the trial. To be clear, Bakari Sellers really wants to see conviction in this case, but he thought the defense did a good job of putting George Floyd on trial in effect and that this is not an easy slam dunk case. For a lot of listeners who may have seen the video or may just know this story and think, "Come on, this is a slam dunk case." Is this a slam dunk case, in your opinion?

Elie Honig: No, there is no such thing as a slam dunk case. I've tried many cases. Juries are human beings, the collections of 12 human beings. Good luck predicting what any one stranger who you don't know will do, never mind what 12 of them will do. It's complicated, but furthered by the fact that this is a police case. Juries are historically reluctant to convict police officers, and this is a race case, and that makes it even more complex.

All that said, I think the prosecution has a strong case. I think the video evidence is really compelling here, but no, I would not make any prediction about whether the final outcome will be guilty or not guilty.

Brian Lehrer: Lastly, it's hard enough to get an indictment against the cop, no less a conviction. We saw what happened in some ways very similar case of Eric Garner where the cops involved weren't even indicted. Do you think this sets a precedent in any way for excessive use of force cases around the country if Derek Chauvin is convicted, or is it just in and of itself?

Elie Honig: Technically speaking, it's not precedential. What happens in one case doesn't necessarily guide what happens in another case. I think, on the one hand, this case is almost so extreme that you don't want it to be called the new bar. In other words, you don't want future prosecutors or grand jurors to say, "It's not as extreme as Chauvin, so we're not going to indict it."

There's plenty of room for less extreme conduct than this, that could still be criminal. On the other hand, I think, what this case as a whole has done throughout the United States is really raise awareness of some of the inequities and some of the abuses that exist in our system. I think you're seeing prosecutors. I think you will see prosecutors who are more able to give these cases a hard look and, if necessary and appropriate, indict them.

Brian Lehrer: Elie Honig is a CNN Legal Analyst. He hosts the podcast. That's a Legal Affairs Podcast Third Degree. He's got a book coming out about William Barr in a few months called Hatchet Man. Elie, thanks for coming on with us from time to time. We really appreciate it.

Elie Honig: Thanks for having me, Brian. Always happy to be with you.

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