Some additional analysis

Floyd Murder Trial: Confrontation with Feisty Witness Brings Chauvin’s Defense into Focus

Andrew C McCarthy

The inaccurate interview statements last year appear to have happened because investigators questioned her without walking her through the video. If a witness has participated in a recorded event, the investigator should show her the video and stop it where appropriate, asking her to explain what happened. Or, if the investigator decides not to play the recording because he wants to gauge how strong the witness’s independent recollection is, he should explain that if the witness is not sure about something and needs her recollection refreshed by viewing or hearing part of a recording, she should say so. Instead, the investigators appear to have questioned Hansen without using the recording as an aid. Whether she was traumatized or just isn’t that good at remembering things, she got many details wrong.

Then, the prosecutors compounded the investigators’ error. Hansen testified that the prosecutors offered to have her review a transcript of her prior interview, but she declined because she did not want to review it. Inexplicably, the prosecutors agreed that she didn’t need to. I don’t blame the witness for that — not much anyway. She probably realized she had said a number of things that were wrong and didn’t want to deal with it. That’s human nature, and it falls to the prosecutor to make her understand why she should deal with it.

If the failure to do that was intentional, it was really dumb. Sometimes, lawyers get too clever by half: telling a witness that, if she doesn’t review her prior statements, she can just say she can’t recall those statements — as if that is going to make inconsistencies go away. But any competent cross-examiner is then going to take her line by line through the prior statement. Because the witness is unprepared for that onslaught, she is sure to look unreliable or even dishonest. It undermines the value of her testimony.

Hansen is one of those people who is often mistaken but never in doubt — the toughest kind of personality for a litigator to prep for testimony. Once defense counsel Eric Nelson began confronting her with errors in her prior statement, she obviously realized she was unprepared and looked foolish. Clearly, saying “I did not review my statement” wasn’t going to do the trick. So, in her frustration, she started arguing with Nelson and defensively adding details that were not responsive to his questions — such as the explosive conclusion that she was angry at the time of the events in question because she had just watched the police murder Floyd. That, of course, is the central issue in the case, and one on which she is not competent to render an opinion, lacking both medical training and non-hearsay knowledge of what happened before she arrived on the scene just four minutes before the ambulance took Floyd away.

On balance, Hansen’s testimony was helpful to the prosecution, but not as helpful as it should have been.

Hansen’s appearance has been enlightening, though, because Chauvin’s defense is coming into focus through Nelson’s cross-examination. He is signaling to the jury that, while prosecutors are highlighting the harrowing recording of the last nine minutes and 29 seconds of the Floyd-Chauvin encounter, truly important things happened before and after that time.

The untold story, Nelson is suggesting, includes Floyd’s passing of a counterfeit bill and resistance of arrest, his ingestion of dangerous drugs despite significant underlying cardiopulmonary conditions, and problems the state will have in explaining different accounts by medical experts of the cause of death. Nelson, moreover, also plans to highlight an altercation Floyd had with police in May 2019, which bears some striking similarities to his behavior when arrested on this occasion, a year later.

In his opening statement, Eric Nelson told the jury there are two sides to every story. I’ve always thought that was a mindless old saw. In reality, I’ve been in cases where there was really only one side to the story, and other cases that were like a house of mirrors — you’d wish there were only two sides. Derek Chauvin’s defense, in any event, will have the chance to prove there’s another side to this story . . . and it will have to be a convincing one, because that recording of his treatment of George Floyd is a lot to overcome

Keeping in mind that McCarthy is a former prosecutor who admittedly is seeing this through the eyes of a prosecutor. So far he has appeared to see the first few days a mixed bag, mostly playing armchair quarterback with 20-20 hindsight to what both sides are doing wrong. Earlier he had been critical of the defense and now most recently he has been critical of the prosecution.

There has always been an expressed viewpoint that some (if not much) of the details of this particular case will get glossed over by what is being seen as the horrible treatment of George Floyd (as suggested in McCarthy's last line).  I see this as sort of a lawyering trick. Always leave people with the what you want them to remember. In this case the video of the knee to the neck.  The overall idea is pretty simple and very well might work.

• Pound on the idea that officers behaved poorly
• Keep reminding everyone that a man died
• Link the poor behavior and dead man ad nauseum
• Demand that someone must be punished

As McCarthy suggests, the defense will attempt to show another side and hope that people are willing to listen. That, of course, is going to be tougher for some jurors than it will be for others, because people are simply different. That is the one thing that seems to be missed when people dissect this particular case. The fact that the jurors are going see things the way they see them (which is not necessarily the way we see them) and that it will be extremely unlikely that all jurors will see the same thing (or place the same importance on the same things).

As someone who spent most of my life in sales, technical support, and some sort of customer service, I have vast experience at dealing with different types of people and how different types of people will react to different scenarios. 

What I can tell you is that there are people in the world that will immediate be drawn to the lowest common denominator like bugs to light and it's almost impossible to drag them away. This type of person will likely respond to the above narrative, their minds may already be made up, and as McCarthy suggests it will take a lot to pull them away from that. As McCarthy suggests. Often mistaken, but never in doubt. 

On the flip side, there are still people in the world who thrive on nuance, shades of grey, and almost never walk into anything predisposed to believe anything for sure. Those are the types of people that the defense needs on the jury. This trait is probably even more important than politics, race, age, or any social status. Those people will be willing to listen to both sides before making up their mind one way or the other. More to the point, these are people that will be toughest to convince "beyond a reasonable" doubt if the defense provides those shades of grey to offset the black and white picture the prosecution is painting.

If you doubt any of this, just look at the comments on any of these threads. You will most definitely see the lowest common denominator bugs to a light sort of person and you will see the shades of grey nuanced person as well. Have to say, you will run into way more of the former than the latter, but both still exist.