The Megyn Kelly Show - Derek Chauvin Trial: Where Things Stand Now, with Alan Dershowitz, Arthur Aidala and Mark Eiglarsh | Ep. 87

Episode Date: April 9, 2021

Megyn Kelly is joined by legal titan Alan Dershowitz, and the legal dream team of Arthur Aidala and Mark Eiglarsh, to talk about where things stand in the Derek Chauvin trial in the death of George Floyd. They look at all the angles, including whether Chauvin will take the stand, the emotional testimony over the past week, mistakes the prosecution team is making, the key question of "intentionality," George Floyd's girlfriend's testimony, the medical examiner's testimony, the crucial "breaking the blue wall" testimony of the police chief, and more.Follow The Megyn Kelly Show on all social platforms:Twitter: http://Twitter.com/MegynKellyShowInstagram: http://Instagram.com/MegynKellyShowFacebook: http://Facebook.com/MegynKellyShowFind out more information at:https://www.devilmaycaremedia.com/megynkellyshow

Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations. Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. Oh, we have a great show for you today. We're talking about the Derek Chauvin trial, and it is an in-depth look at where we are, and it is an honest and fair look at where we are. Gosh, I've been listening to tons of podcasts and reading tons of reports about the trial because I genuinely want to know what's going on so I can handicap myself because unlike most of these legal analysts, I am fair, as you

know. I don't have any horse in this race at all. And I listen to some and they're like, there's no chance he's going to be convicted, no chance whatsoever. He died of a drug overdose, period. The vast majority of the mainstream media is telling you exactly the opposite, that it would be a dereliction of duty, that this is a racist jury if they do anything other than convict of the top count, blah, blah, blah. We're going to take a hard look at it today and where you're going to get expert analysis, truly expert analysis from Alan Dershowitz, along with our legal dream team, Arthur Idalla and Mark Eglash. Both are former prosecutors, now defense attorneys. And I think you'll hear very thoughtful,

insightful points of view. We're going to play you a bunch of the testimony, so if you haven't been keeping that close an eye on it, you'll know everything you need to know about this trial after you listen to this show. And so, unlike the rest of your friends, you can actually be informed when talking about this case and when the verdict comes out. So, in any event, don't don't miss this.

It's a good show. And I think it's easy to understand, which is always my top goal on the Cali. If I was to call it cool water over a hot brain, that's how I want you to feel when you listen to me discuss the news. We'll put the effort in so that we can make it effortless for you. And I think that works. That works for the viewer and the listener. And it's why, you know, I have a good relationship with the people who consume our news products.

So in any event, enjoy it because I think it's educational and entertaining at the same time as legal cases can be. They can be long and boring or they can be entertaining. And this is in the latter category, at least this discussion is. So we're gonna start with Alan Dershowitz in one second, but first this. I've been enjoying listening to your podcast. I've been hanging on every word you say about the Chauvin trial. And this is the perfect thing to talk to you about, because as you pointed out in your podcast, you have literally spent a career boring over trial transcripts to figure out whether anything is objectionable on a basis for appeal. And so far, how do you think well, how do you think the judge is doing in his rulings about what's allowed in and what's not allowed in? I think he's opened himself up to appellate reversal on a number of issues. I think the most important one is whether the trial should have been conducted

in Minneapolis at the time it was conducted with Minneapolis jurors rather than moving it to a rural area with jurors who wouldn't be as concerned about what the implications of a not guilty verdict might be on their businesses, on their family, on their schools. So here's one of the things I've been noticing, and you tell me. The prosecution's case so far has been largely emotional. Now they're getting into the nitty gritty with the legal, with the force experts saying this was excessive. They had the police chief, this was excessive. But even there, they're really trying to layer in emotional witnesses. And both when they put each member of the crowd on the stand and elicited

tears and what has this done to you? And when they put on on Wednesday, the store clerk and then the woman who took the video that we've all been watching, Darnella Frazier, they've been asking emotional questions of them. And I, for the life of me, don't understand why the defense attorney is not up and down on his feet screaming about this, because, I mean, with all due respect, why does it matter how witnessing this event has impacted those witnesses or changed their lives? I don't mean to sound cold, but as a legal matter, why is that coming in? You're absolutely right. And I think the defense attorney has to make a calculated decision in this case. The prosecution is

over-trying the case. They're putting on too much evidence. They're losing the impact of the dramatic video. When you show a video once, it has an amazing impact on a jury. When you show it the seventh and eighth time, it becomes clinical and the impact is lost. And when you put 10 witnesses, 15, 20 witnesses who repeat the same thing, and there were news reports that at least one, maybe two of the jurors were dozing off, it really shows you you're losing the impact of your case. And so the defense may be strategizing, look, let them over-try their case. I've had cases like that over the years where the prosecution has gone on weeks and months and we've won all the time because you lose your jury after a relatively short period of time. overly emotional testimony. Look, there were only three legal issues in this case, one of them scientific. Did the knee on the neck cause the death of George Floyd? That's a scientific question. What impacted his drug use? What impacted his heart condition, his high blood

pressure have on the death? And that's going to be determined by the instruction that the judge gives, because the jury's going to come to two conclusions. They're going to conclude that but for the knee on the neck, he'd still be alive today. But they will also likely come to the conclusion that but for his drug use, but for his high blood pressure and his heart condition, he might still have survived the knee on the neck. So there were at least two significant causes of his death, and the judge is going to have to tell them how to resolve that issue beyond a reasonable doubt. So that's issue number one. Issue number two is what was his level of intentionality? You only get to that issue if you get by the causation, because causation is a prerequisite for any homicide prosecution. Remember, this is not a reckless endangerment

case. There are states that have statutes saying if you put somebody at great risk of death, that's an independent crime. You don't have to put a causation. But they haven't charged them with that. They've only charged them with homicide. And so you've got to get past causation, and then you get the level of intent. And that gets to the three charges that have been made here, second-degree murder, third-, third degree murder and second degree manslaughter. I don't think they've made the murder charges. I think they have made a strong case on manslaughter. But and that will depend a little bit on whether he takes the witness stand. And if he testifies, that will go directly to his intent.

And what's the third issue? So there are three issues here, scientific level of intentionality. The third issue is whether or not felony murder applies in a case like this. So in most jurisdictions, for felony murder to apply, you need to have an independent felony. That is, you go to rob a bank. In the process, there's a shootout. Somebody dies. You didn't intend to kill them. You're guilty because it was an independent felony, the bank robbery.

You rape somebody. In the course of the rape, you put your hand over her mouth in order to stop her from screaming. She dies. The rape is an independent felony. That's felony murder. But in most jurisdictions, if the underlying felony is assault, it's so closely connected to the death that it doesn't provide a basis for felony murder. And when you add to that, in this case, all the prosecution witnesses seem to concede that initially putting the knee on the neck may not have been a crime. It became a crime over time when it was clear that he was disabled, that he was not breathing, that he was unconscious. Every expert says at that point he should have lifted the knee off the neck. But when you have a situation that's a matter of degree, that it evolves from proper police procedure to unlawful police procedure, that doesn't provide a foundation for a felony murder prosecution.

So I think second degree murder is going to be thrown out by the judge. It certainly should be. And then we get the third degree murder, which is very difficult because it says you have to endanger the life of others and others. The plain meaning is beyond the victim himself, like in the case where they shot into a darkened room and killed the woman, but also endangered the lives of the people in the apartment next door. That doesn't happen with a knee on the neck. Only the person who's the victim was endangered. So the judge may throw out the murder prosecution. I don't think he will. I don't think he'll throw out third degree murder, but he should. And then we're at manslaughter. And that's a very solid case. First of all, this is exactly the conversation I want to be having.

I love I love the way your mind works. I love the linear thinking. So easy to follow. I want to go through these with you because I totally you won't be surprised to agree with everything you said in terms of what the legal issues are and how we should be thinking about these. So let's start with scientific. Did the knee cause the death? And you rightly point out that the jury is going to say the knee, the knee was a factor. They're likely to conclude the knee was a factor. And it also was a but for, was a but for factor, but for the knee, he'd still be alive today, but but for isn't enough. Right. It has to be proximate cause has to be closer in time to that. Like if you, if you get diagnosed, if a man finds out his wife has cancer and he drives to the

streets like a crazy man to get to her at her workplace to comfort her and he hits somebody, you could say, but for her cancer, the person wouldn't have been hit. But that's not enough to impose legal. You have to get it has to be closer the cause and more intimately tied to the event. That's what they have to prove with him. But I want to ask you, because I did look at this and the Minneapolis Star, I think it has been doing really good reporting on this. And they, according to them, the Minnesota law does not require does not require the prosecution to prove that Chauvin alone caused George Floyd's death.

And that they said, according to the states and the defenses, both sides proposed jury instructions. They have conceded, both sides concede that to cause means to be a substantial causal factor. And the fact that other causes contributed to the death does not relieve the defendant of criminal liability. So if the defense has actually already conceded that in its proposed jury instructions, I mean, that could be ballgame, Alan, right? If they're conceding. It could be. It could be. Right. If they're conceding all right, that all that needs to be proven is that the knee on the neck was one cause and you got him. That's a terrible outcome for the defense.

Absolutely. It's a terrible concession. It's wrong as a matter of law. If you shoot somebody in the leg and it's a non-lethal wound and they take him to a hospital and the doctor engages in malpractice and kills him on the operating table, that would not be a homicide, even though, but for the shooting of the leg, he would never have been taken to the hospital.

It has to be more than just one of many contributing causes. It has to be a very dominant cause. It has to be the essential cause. But courts use all kinds of fuzzy language around here, and they leave it to the jury. They use substantial cause, significant cause, proximate cause. Nobody knows what proximate cause means. Everybody who's taken torts in law school was, you know, their mind was boggled over proximate cause, the cases that we studied.

And, you know, I used to teach this all the time in my criminal law cases. A man goes into a woman's apartment and threatens to rape her and she jumps out the window to commit suicide. Did she'd rather die than be raped? Is that sufficiently closely connected? Or was her own decision to jump out the window the most significant cause of her death. These are questions that juries have been deciding for centuries. And usually they're told to use their common sense. And I think that's why the state is trying to make a strong moral case. Look, morally, morally, there's no justification for what Officer Chauvin did. He was justly fired. He is justly condemned. What he did was wrong, keeping the knee on the neck for as long as he did. He deserves a special place in hell for that. But does he deserve to go to prison for homicide? That's a very different question. And my worry is that the crowds outside are merging those questions. And remember, this is not a sequestered jury. They go home every night. They're told not

to watch television. They're told not to talk to their spouses about the case. But we know that these matters leak to the jury. They know that there are people out there saying if there's not a murder conviction in this case, there's going to be a Rodney King response or there's going to be economic pressures and reactions. So I worry that the jury can really do justice and distinguish the moral from the legal case here. The judge seems pretty good. I think he's generally ruling in favor of the prosecution. That's often the case. And as I tell my clients, every time you get a bad ruling in trial, that's good for me as an appellate lawyer. And every time you get a good ruling in trial, that's bad for me as an appellate lawyer. So I think there are appellate issues piling up. And I do think if I had to make a guess that there will be a conviction of some kind in this case. But, you know, until the defendant takes the witness stand or decides

whether to take the witness stand, none of us can make a valid prediction. You know, I have a friend who used to charge $100,000 to try a criminal case. And he would tell the client, look, $5,000 is for what I do in the courtroom. $95,000 is for my advice on whether you should take the witness stand or not, because that is the most crucial issue in any criminal case. I have to tell you, when I go to prisons and visit my clients, they have their friends all come over. I'm a celebrity lawyer. They talk to me. They all have one thing in common. They blame bringing in prison on their lawyers. Half of them blame their lawyers for putting them on the stand. The other half blame their lawyers for not putting them on the stand. The decision to put a client on the stand is the crucial issue. I don't think it's been made in

this case, and it shouldn't be made until the close of the prosecution's case. I think in the end, they're going to have to put them on the stand because I think the case for causation has been strong enough to overcome a motion for dismissal. Here's the way it's going to work. At the close of the government's case, the defense will make a motion to dismiss, to get rid of murder two. And maybe they'll succeed, but they won't succeed on murder three and they won't succeed on manslaughter. And it's at that point that the decision will be made whether to put him on the stand. Now, if you put him on the stand, it opens up the prosecution to ask him all kinds of questions about his background, questions which might not otherwise come in if he doesn't take the stand.

It was a very, very hard decision. Right. Like the complaints that have been leveled against Derek Chauvin in the past over his 19 plus year career. And each one of those will be blown up into, you know, a patent. They're trying to argue it's a pattern. They're still they're going to try to get it in either way, even if he doesn't testify claiming its pattern. But it's a much it's a slam dunk for the prosecution if he takes a stand. I think that's right, because it comes in then on credibility, on other issues, whereas they're trying to put it on as a pattern, other crimes evidence generally doesn't come in. And also complaints don't generally come in. They have to be validated. stay on scientific. Did the knee cause the death? Number one. So since we do believe,

according to the Minneapolis Star Tribune, that the defense has already conceded and that the Minneapolis or the Minnesota guidelines for jury instructions kind of forced them to concede that Chauvin's actions only have to be one, one of the causes of Floyd's death. So that puts the defense behind the eight ball starting off. But that doesn't. But he's Nelson. The defense lawyer is not giving up on this. He is definitely going to argue that Derek Chauvin's knee did not cause the death. He's not conceding that.

He's putting on evidence through the police officers who are taking the stand right now to say this was out of line. This wasn't with policy. It was excessive force showing them video of how the knee actually

may not have been on the neck. It may have been on the shoulders and they have coming up, they have coming up the medical examiner, the only one to actually do an autopsy on George Floyd, this guy Baker, he is going to testify that he concluded this was not a death caused by asphyxia or the lack of oxygen caused by knee on anything, that this was a heart attack. That's what he concluded, a heart attack caused by arteries that were 75 to 80 percent occluded and other health issues that George Floyd had and the drugs in him, fentanyl, methamphetamine, and maybe others. And he basically says it was all complicated by like the knee on the neck was a

complicating factor, I guess he suggests. I could get the exact language. But Nelson's doing a pretty decent job of saying the knee wasn't on the neck. And you're going to hear from a medical examiner who says it wasn't the cause. Look, I think he's doing a very good job on the issue of causation. But if I'm the prosecutor, I ask each of the witnesses one question. If Chauvin had not put his knee on the neck, would George Floyd still be alive today with a heart condition, with high blood pressure, with an addiction problem? But would he be walking around today or would he have just dropped dead in the middle of the street if he had never met Chauvin? And if the answer to that question is he'd still be alive today, then it's going to be very hard not to acknowledge that the knee on the neck was a significant contributing factor.

I agree, but the defense has gotten on a bunch of stuff about just how just how intoxicated high George Floyd was, the amount of drugs in his system. And the defense has gotten a ruling that George Floyd's May of 19, a year earlier, arrest can come in, in part that he did in that arrest call out for his mama. He did claim he couldn't breathe. They're not going to be allowed to introduce that. But they are going to be allowed to introduce the fact that when he got arrested, he started shoving a bunch of drugs in his mouth and started behaving crazy. And that this is a pattern because what we've learned so far in this trial is that not only did he have all these drugs in his system enough to kill any normal man, they found drugs in the back of the cop car and in the back of the car Floyd had been in that were, I guess they're called speed balls.

It's a mix of two very potent drugs. With his DNA, he'd been like, they'd either been in his mouth or he'd licked them, but it's his mouth DNA all over these drugs. So they're going to say, this is what George Floyd did. He had done something. He had rectally inserted drugs before this whole thing. He had taken fentanyl.

He had taken methamphetamine. And when either before or after the cops stopped him, he started shoving in those pills like candy because it had worked for him before and trying to get redirected to a hospital instead of a prison. I agree with that. And the prosecution is taking a very chancy road when they say this guy was so addicted to drugs. He used so many drugs for such a long period of time that he built up a tolerance and that although this amount of drug would kill a normal person who tried it for the first time or the second or the third time, it wasn't enough to kill this guy who had such a serious drug problem. That's obviously a knife that cuts both ways with the jury, which is why I think the prosecution is trying to paint Floyd as somebody who was trying desperately to end his addiction problem with his girlfriend

and acknowledging that they had a medical problem. So again, the jurors are going to be very, very influenced by the totality of the circumstances. Do they like George Floyd? Do they think of him as a positive person? And then if the defendant takes the witness stand and appears, you know, like a soldier doing his duty, yes, ma'am. Yes, sir. Sergeant Friday, you know, maybe I went a little too far here. I'm so sorry for the death. You may get a dynamic in the jury deliberations that favors the defendant. So I think both sides are trying to create an emotional background so that the jury can view the evidence through the prism of either a positive view of Chauvin or a positive view of George Floyd. And so far, I think prosecution's winning that case, but we have

to reserve judgment until we hear from Chauvin if he testifies. If he doesn't testify, I think he will be convicted at the very least of manslaughter. If he does testify, all bets are off. We don't know. So you're leaning toward putting him on if he's your client? I am leaning to putting him on if I lose my motion. If I win my motion to get rid of the murder charges, I don't put him on. If I lose my motion and the murder charges are in front of the jury, I make strong objections to that, but I put him on. Look, I fought like heck to keep OJ Simpson off the witness stand because we had a strong scientific case and he would have been a terrible, terrible witness. F. Lee Bailey fought hard to put him

on the witness stand. And I actually threatened to quit the case if they put him on the witness stand because I just thought we would be engaged in malpractice. And I think I was proved right. The jury acquitted him and the civil jury, when took the witness stand convicted him so the decision to put a defendant on the stand is such a difficult one you have to know the defendant you have to have prepared him for everything i hope they've prepared him i'm sure they have prepared him to take the stand unless they've already made the decision not to which i doubt they have so and that the next question is, okay, so, cause we do have to talk about his intentionality and if that second degree murder charge stays, then, then this is 100% going to be something they, they talk about. And now they're, they, they call it unintentional murder, but it does require a level of intentionality

and we'll get to that in one second. Now, I want to ask you this though, before we get there, cause you mentioned, and we talked about for a second, the emotionality of the trial. And this is clearly the prosecution's best dynamic, right? Just how awful the tape looks and how it makes us all feel and the voices of the bystanders. And one of the I mentioned what I thought some of the testimony was objectionable. And here's just one example from Wednesday. Okay, so this is Darnella Frazier. Again, she's the one who filmed, it's her tape that we're looking at all the time when we see the video of the George Floyd death. You tell me whether this is appropriate. When I look at George Floyd, I look at I look at my dad. I look at my brothers. I look at my cousins, my uncles, because they are all black. I have a black

father, I have a black brother, I have black friends. And I look at that and I look at how that could have been one of them. It's been nights. I stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life. Going on about how like the color of her brother and father. There's been no evidence this is a case about racism. What's that doing in there? Well, there are a number of black jurors. And obviously, this is an attempt to appeal to issues regarding race. And I think it has no place in the trial.

And if I were the defense attorney, I would have objected to it. But it's very hard to object to emotional testimony when somebody is crying or has tears in their eyes. Jurors want to hear it. They don't want to hear the defense object to it. That's why these motions should be made as in limiting motions outside the hearing of the jury. And they should have established ground rules early on as to what's permissible, what's not permissible. Also, I think the defense should have asked for the judge's instructions before the trial began so that they can make sure their testimony fits into what the judge is going to instruct on issues of causation intent. As you say, we already know what the judge is going to instruct on causation because both sides seem to

concede. And if I were the defense, I would have moved to a more pro-defense instruction on causation. But I think that's already been decided. So I agree with you. I think there are going to be issues on appeal if there is a conviction, and I think likely there will be one unless his dynamic on the stand changes that. They ought to be now listing the issues for appeal. The first question is going to be, if he's convicted, does he get bail pending appeal? He's on bail now. That's been much criticized by some people, but there is a presumption of innocence. But if he were to be convicted, that would end the presumption of innocence. And then

the question of bail pending appeal would come up and whether you get an expedited appeal. And, you know, that's obviously where my specialty comes in. And I think there are good appellate issues in this case. But remember, appellate courts watch the news and they live in Minneapolis and other parts of Minnesota. And judges are not eunuchs. They are not above the law beyond feelings and passions. They reflect the concerns of the community. And I think probably some of the appellate judges are watching this case. So you can't count on an appellate reversal. I told O.J. Simpson that I was his appellate lawyer. I was his God forbid lawyer. I was his belt and suspenders. But I could not tell him that I thought I would win the appeal if he was convicted, that I thought elected judges in California were very unlikely to reverse

a conviction in his case that he had to win it at trial. And, you know, for his from his point of view, fortunately, he won it at trial. I don't think he would have won the appeal. All right. So now let's get to the intentionality, because this is where we get into the legal elements that they're just stuck with. Like the law is the law. And the reason we're talking about

intentionality is, is murder in the second degree is what you're referring to as felony murder, where if you're in the course of committing a felony and somebody dies, you know, you're, you're robbing a 7-Eleven and you get startled and your gun goes off and you shoot and kill somebody that's felony murder. Even if you didn't intend to kill somebody because you're in the middle of committing a felony. Right. And that's what that's what they're trying to get at with second degree murder. And they're saying that the felony, as you pointed out, is assault. Now, the assault is always more complicated when it's a police officer exerting force.

Right. Like that's just a right. Its own special. Right. Tricky wicket. But the definition of assault under Minnesota law, I have it here in front of me, is an act done with intent to cause fear in another

of immediate bodily harm or death, or the intentional infliction of, or attempt to inflict bodily harm upon another. So they're basically going to have to argue that Chauvin intended to hurt Floyd. They're going to have to do more than that because those statutes do not apply to policemen. Policemen are entitled to use force. They're entitled to inflict harm if it's necessary to effectuate an arrest. So the assault statute you've read, which is common all over the

country, doesn't include police officers. Police officers have different rules applicable to them. And so the question that's going to be asked, and the judge is going to have to answer this, is when did his conduct become criminal? And there seems to be a concession on the part of the prosecution's experts that it was not criminal at the very beginning, that he was struggling and the knee on the neck or the shoulder was not criminal. It became criminal gradually over time. And you're going to get differences among the experts. Some will say it began to become criminal when he stopped resisting. Others will say, no, he could have started resisting again. It only become criminal when he stopped resisting. Others will say, no, he could have started resisting again. It only became criminal when he was unconscious. And yet others have said

already you can pop out of unconsciousness and start attacking the police officer. So you cannot have a felony murder conviction when you have a matter of degree, an assault that we don't know when it began. And also assault is too closely connected to the underlying death to warrant the justification for the felony murder. That's a combined question of law and fact. And almost every jurisdiction today requires that the felony be an independent felony, because otherwise, if that weren't the case, every second degree murder automatically becomes first degree murder because every every murder involves an assault. Every killing involves an assault. You point the gun at somebody. It's an assault. You pull the trigger. It's an assault. Then you kill him. So if you make assault the underlying felony, you abolish the distinction between degrees of murder.

And the legislature didn't intend that. So that's why you need an independent felony. They don't have it in this case. So it could be it actually could be reasonably dismissed by the judge on the defense's motion at the close of the trial. It should be. Yeah, it should be. Yeah. But I don't know whether it will be. Judges always or often take the easy way out. Let's leave it to the jury. Let's see what the jury does at the close of the government's case after there's been a conviction, come back, make the argument, and then we'll see. But they don't usually take issues away from the jury. They should in this case. Second degree murder should be eliminated from the jury deliberations. So how do you think it plays that the fact that Chauvin is, well, he's now fired, but

he is a police officer and juries in general, I mean, it's been such a crazy year when it comes to the police, who knows now, but in general, I think juries tend to feel somewhat deferential toward the police. A couple of the jurors in their juror questionnaire said they absolutely don't want the police defunded and they'd be terrified if the police were defunded, something that actually did happen in Minneapolis. And then they had to reverse it because it was such a ridiculous situation. And by the way, George Floyd Square, which is what they're now calling the area around the store where he passed off the $20 counterfeit bill. And the crime rate there, because the cops are not touching it, has skyrocketed.

It's like five times what it used to be. Nobody wants to go there. It's like, this is what happens when you pull the police. Anyway, it's a dynamic that the jurors may be aware of. But how does it affect them in this case that it's a police officer on trial? Very much so. Very much so. And it will depend on how he does on the witness stand. Right now, he's sitting there taking notes. He looks like anybody's brother, cousin, uncle. He doesn't seem like a monster or a villain. Even in the videos, you don't really see him. It's not like there's another case. There's another case much like this that took place a few years ago where the cops are laughing and joking and all of that. He hasn't come across, except through the expert testimony, in the most

negative possible way. And he can, even if he has been, he can offset that by his testimony. And he can show regret. He can show remorse. And he can say, look, I may have made a mistake in retrospect. I should have taken the knee, but I was scared. The crowd was frightening and threatening. It took my attention away from him. He can make a

good presentation on direct. Then the question is, how will he do on cross-examination? I don't know how good the prosecuting attorneys are on cross-examination. Most prosecutors don't have a lot of experience in cross-examination because most defendants don't put on affirmative cases. And therefore, prosecutors generally aren't as good at cross examination as defense attorneys are. But we'll wait and see how good this is. These prosecutors are. Yeah. So one of the things that, you know, they've been trying, I think that the prosecution put on the crowd, you know, tug at the heartstrings. It was so emotional. It was awful to watch. It was clear to us that he was dying. And bit by bit, the defense attorney has been etching away the prosecution's case there. Like, for example, the witnesses were

like, he had foam coming out of his mouth, and they're going to be able to get in the fact that he had foam coming out of his mouth. Actually, they did get in the fact from his girlfriend that when he went to the hospital a couple months earlier in March, he had foam coming out of his mouth then. Like, the guy is a drug addict. And while that's unfortunate and you're right, a lot of people suffer from this. It's relevant that he's taken so many drugs so many times that he's been hospitalized. He had foam coming out of his mouth. So just bit by bit, he's undermining their testimony. And the one who had Twitter ablaze over the past week was the firefighter, the woman on the stand.

She's got her firefighter outfit the woman on the stand. She's got her firefighter outfit on her little tie. Her hair is nicely done. But on the scene, but on the scene, she behaved very differently and she was swearing at the cops. Like now she's like, I don't understand. I identified myself as an EMS and they wouldn't let me come up to them. It's like, OK, the cops have a volatile situation. There is a mob starting to surround them, screaming at them, videotaping them. Derek Chauvin doesn't necessarily know what he's dealing with. And this woman's got like, I'm a firefighter. And then she's like, you bitch. I like I pardon me, but I'm thinking the cops are not necessarily going to be like,

come on over. So so she the defense attorney sort of asked her like you were angry and you were frustrated. She's like that. I wouldn't I wouldn't sign on to that. And he's he's like, you called him a bitch. And she goes, I don't know if you've seen anybody be killed, but it's upsetting. Now, again, objection. Whether he was being killed is a matter for the jury. I just feel like so much of that stuff has been let in that that shouldn't have been. I agree with you. But remember, the prosecution is doing one thing right. They are fronting the defense case. They're putting the defense case

on through their own direct testimony. They're making sure that all the evidence that's going to hurt their case comes in through their testimony and doesn't become surprise testimony from the defense that there are no blockbusters there are no bombshells coming in from the defense side because already the prosecution has put all of that on put on his drug addiction put on his foaming mouth, put on the crowds. So everything the defense is going to put on, the prosecution has already pretty much put on. So it will blunt the effect when the defense puts it on. Oh, yeah, we're going to hear that again. We've heard that before. That was very, very good lawyering on the part of the prosecution. Interesting. Well, so if you had to handicap it

now, you know, not nor not, we're not even through the prosecution's case. But what what would you predict? If this were if the guy's name was John Smith and the person who's killed name was John Jones and there was no racial element and there weren't protests, I would say a manslaughter conviction at most. This is not that. This is one of the most famous, notorious cases of the 21st century. So I think if you were betting widows and orphans money, money you couldn't afford to lose, you'd have to bet on a conviction and you'd handicap it by saying probably, almost certainly manslaughter and very likely third degree murder, but not second degree murder. So if I had to make a bet now, that would be my bet. I will revise my bet once the decision is made, whether to put Chauvin on the stand and once he takes the stand. And we'll have you back after the close of the prosecution's case at a minimum.

Alan, such a great time talking to you. Thank you. Oh, I always enjoy talking to you. It's like being back in law school, except now you're the teacher and I'm the student. Stop it. Never, never. I love hearing you. I love learning from you. More to come. Thank you. Our thanks to Alan Dershowitz, Professor Emeritus at Harvard Law School. And, you know, he's he's tried every case and he's been in front of the Court of Appeals of every, you know, the Supreme Court, every you name it. He's done it. He's brilliant, as you know. And now two other brilliant guys who are street fighters. These are the guys who have been in there actually prosecuting cases and being defense attorneys on cases.

And they've been involved in some of the most high profile cases in the last 10 years. So you're going to hear from Arthur Aydala and Mark Eichlarge, my dream team panel from, well, from the Kelly file and from all the shows I did prior to that. We've all been together and doing these shows for a long time. Get to them in one second. First this. Hey, guys, how's it going? Everything's up to date in River City. So glad to hear it.

All right, let's get into it then, because I want to go through some of the sound that we've heard this week at the Chauvin trial and get your reaction. For the most part, we've managed to pick both prosecution questions and defense cross examinations so people can get a feel of how it's going. I want to start. So when this all went down, George Floyd had gone into the store. He had passed off a $20

counterfeit bill. There was testimony this week that they didn't those with him didn't believe or the store clerk didn't believe George knew it was a $20 bill. We don't have a counterfeit. We don't know that. Anyway, it was counterfeit, apparently. And he was there with his girlfriend and with another guy. And this other guy has refused to testify in this Chauvin trial, pleading the Fifth Amendment. And it certainly appears that this guy had some sort of drug sales relationship with George Floyd and his girlfriend, Courtney Ross, because she testified, yeah, he's been selling us drugs. And he was there with him. And Floyd was on a lot of drugs that day. And now the guy won't testify at all because he says it would incriminate him.

And his lawyer is like, yeah, it would. Trust me. So that's the setup. But the girlfriend, Courtney Ross, does testify. And she's a prosecution witness. And it seems to me that the prosecution's goal was to soften Floyd. You know, she talked about how she met him. He came up to her during a rough time in her life and said something like, can we pray together?

And then you had the store clerk say he was sort of walking around the store happy. He did seem high to me, but they're sort of painting him as like this happy-go-lucky, God-fearing, loving guy who just fell victim to the opiate crisis that so many millions of Americans have. And here was the prosecution's question to Courtney Ross on the drugs or her answer. Listen. Our story, it's a classic story of how many people get addicted to opioids. We both suffered from chronic pain. Mine was in my neck and his was in his back. We both had prescriptions but after prescriptions that were filled and we we we got addicted and and tried really hard to break that addiction okay so that's the setup that's where the prosecution went with her and here are we can just play them back to back, you guys. But there's a soundbite of her talking about a one week before the George Floyd Derek Chauvin incident. She and George had had a new set of pills that were having a very different effect on them than the old set of pills. And she talks about how she had to take Floyd to the hospital and what he looked like. Listen. Then in March of 2020, you got some pills, right? You remember describing that?

Yes. They look different to me than a normal pill. They seem like they were thicker. And you and Mr. Floyd both had those pills? Yes. And did you consume some of those pills? I did. Did they have the same effect on you as they did as your other types of opioids you had taken in the past? What was the effect this time, and what was different? Usually, an opioid to me is like as a pain reliever it's something that is you know kind of relaxing takes your pain away to pill that time it

seemed like it was a really strong stimulant. I couldn't sleep all night. I Felt very jittery so you had a second experience With those pills right or a similar feeling to those pills. I had a Similar experience. Yes, and that was approximately a week before mr. Floyd's passing. Yes And by similar experience You Do you recall telling the FBI that when you had that you felt like you were going to die I Don't remember saying that but I I did see it in the transcript. There was an extended hospital stay in March.

Can you describe to the jury what led up to that hospital stay? Yes. Floyd, I went to go pick Floyd up from his house that night. I thought I was taking him to work. He wasn't feeling good. His stomach really hurt. He was doubled over in pain. And when you took him to the hospital,

did you notice foam coming from his mouth? I noticed like some kind of like, you know, foam building in the corner of his mouth, kind of dry, dry white substance. Yes. All right. So, Arthur, I Dala, where's the defense going with that? Well, I mean, I don't even know why the prosecution called her, except that they kind of had to because she's right at the scene. Right. And they don't want to not call her and then have the defense call her because I think she's great for the defense, quite frankly. I mean, that's his whole thing.

Mr. Nelson is to find every other cause on the planet earth for the cause of death than the, the need of the neck. he's bringing out well you know you used to take a lot of pills and now you're taking these pills and it's they're not even downers they're uppers which would now justify chauvin's arguments that floyd was you know this superhuman powerful being not someone who just ate a whole bunch of opioids who becomes very mellow and docile so i understand that the prosecutor probably had to call them, but of all the witnesses, in my opinion, that have testified to date,

she's probably the one that Mr. Nelson, the defense attorney, was the happiest about. I disagree. I disagree. I disagree. My first impression was, oh my God, they're humanizing him. Like, here's, like,

they're, first of all, they're focusing on how this is not such first of all, they're focusing on how, how this is not such a shameful thing that they both had pain. And as a result, they're prescribed opioids, which is extremely common. So now they're putting a face to this crisis. It, it showed their relationship and how they had a normal, healthy, arguably unhealthy, because they were using drugs, relationship. And I think it humanized Floyd. Mark, if the jury was living on Mars, I would agree with you. But George Floyd has become an international hero. He does not need to be humanized. Every time those jurors come to the courthouse, they're going past George Floyd's

circle, George Floyd's square. They're seeing his pictures everywhere. Nobody who's testified so far has painted him out. They don't know, at least by the evidence of his criminal record, of his jail record, of putting a gun to somebody's belly, a pregnant woman's stomach. He doesn't need to be united. He's an international hero. No, you're missing it. Most people attach a stigma to those who are using drugs. It's not, look, I'm very open-minded. I understand that it's a disease. The American Medical Association calls it that. Most jurors look at that as something very negative, that that was the life he chose. And in the defense's attempt to dehumanize him to the extent that they can and

reduce his value to the jury they're going to point to that drug use and i think that she helped in that regard i at least found oh here's someone who loved him he had a normal relationship he chose this life because of the pain that he initially had as a result of his back like it to me, it just humanized him a little bit more. And I do think it's necessary. How do you handle the stimulant effect, Mark?

How do you handle the fact that she's testifying? I couldn't sleep. They were uppers. They weren't downers in summation. When the pro when, when, when the Nelson is going to now argue that look, Floyd,

not only is he a hundred pounds heavier than my client, not only is he 100 pounds heavier than my client, not only is he six inches taller than my client, but he's just eating a whole bunch of stuff all day. And Megan, you talked about him dancing in the store. This guy was up. He didn't have the normal reaction that you have when you take an excessive amount of opioids where you're all mellow and you're all sleeping on a couch. He's all fired up. I think it played right into the defense's hand more than any other witness by far who has testified in this

case. The defendants are going to say this time he took too many, like the incident one year prior where he was arrested and started shoving drugs into his mouth, they say, to get redirected to a hospital instead of the county jail. That's what he did this time. And he misjudged how many he could take. And his his superhero strength soon thereafter turned into a deadly combination that caused the same foam around his mouth that he had suffered two months earlier in March when his his girlfriend had the same issues and had the same bad reaction to these drugs that these two were upping their drug taking and taking big risks with what they put in their mouths. And it's all part of his attempt to say drugs.

You may have nothing but empathy for people who develop an opioid addiction, but drugs are what killed him. People who take a ton of opioids also have to acknowledge that drugs can kill you. And he's going to say that's what happened here. Right. I agree with the argument. There's no question. That's what you do.

In fact, I've said if they're going to win this at all, you've got to pound the science and pound the the initial declaration by the medical examiner. The other thing is his girlfriend testified that she didn't know about the heroin use. You know, he had started doing that. And she, well, I didn't know about the heroin use, you know, that he had started doing that. And she, well, I didn't know about that. He was upping the ante and, you know, between these speed balls that were found, um, which is a lethal combination of two different drugs, fentanyl in a system, methamphetamines in a system, his DNA, all over these drugs found in the back of the police car and found in

the back of the car that he had been in. I mean, it was just like a drug fest. And that's not to say George Floyd deserved anything that happened to him that day. But those people who were yelling at Derek Chauvin on the sidewalk had no idea the condition in which George Floyd came to the police. They didn't know about the scuffle that had happened prior moments prior to Chauvin's arrival. And so there's just a bigger picture here. And the defense, I think, is doing a good job of painting it. But let's talk about the medical examiner since you bring him up, Mark. The guy's name is Baker. And what the experts are saying is it is extraordinary. You guys have both been prosecutors to have the prosecution distance itself from the medical examiner on the case.

The only guy to ever autopsy George Floyd. Usually that's the prosecution's witness. And the guy did conclude homicide. So that's good for the prosecution. But everything else that he said in his report is bad. And here's what happened. I actually just boned up on this. Not only did he conclude, like in the original report, the original autopsy report, I'm quoting now, cause of death was cardiopulmonary arrest, heart attack, complicating, the heart attack complicated law enforcement, subdual restraint and neck compression. So in other words, his heart attack complicated what Chauvin was doing to him. It's just a weird way of phrasing it that to me seems like he was trying to like maybe

take some of the blame off of Chauvin. I don't know. But then there was such an outrage about what he concluded, right? Because, you know, you're not allowed to be scientific anymore. You just have to be politically correct and say what the mob wants you to. That people were outraged and they had a big like hearing privately in Minneapolis and were, they demanded more information from this doctor Baker. And he said during this thing that, um, it appeared to him that the pressure to the neck was coming from the back or posterior lateral portions of the back,

not the neck. And that none of these strictures would impact breathing or cause loss of consciousness. He said it's important that Floyd had narrowing of the coronary arteries 75 to 80% narrowed. This would put him at risk for a sudden cardiac event and went on to say that he believed Floyd's heart was starting to fail because of the stress, the drugs, his enlarged heart and heart disease, and that's heart was starting to fail because of the stress, the drugs, his enlarged heart and heart disease. And that once the heart starts to fail, one of the symptoms is the perception that you cannot breathe. All of that is terrible for the prosecution, Mark. It is. There's one question we don't know, Megan. And I agree with you. We could take a pause

and Arthur can move on and talk. But there's one. So, yes, I agree with you, period. Now, what I will add is there's one question. And that's what I love about trying cases here in Florida. It's liberal discovery. You get to take the deposition of witnesses. So it's not trial by ambush. There's no surprise. And the one question I would ask him, are you saying that in no way the knee to the neck contributed or caused in any way to his death? Is that what you're saying? If he says, yeah, that's what I'm saying. I go, holy crap. If I'm the prosecutor.

Right. Because he could say that. He might say that. The word is substantial. It's got to be a substantial cause it just can't be you know it's a little bit but that's the law now it causation means substantial causal factor in causing his death so it's got to be a little more significant um megan in terms of being politically correct what really upset me because i i know what you boned up on and I boned up on the

similar thing, what really, really upset me as a person who's heavily involved in the criminal justice system is that after this doctor, Dr. Andrew Baker, gave his report, which we have no reason to believe he didn't write what he found and what science, the science that he knows, believed to be true. The protests against him, his family, his office, they had to construct, I think it's a cinder block wall with like barbed wire fence around his office. The guy who's doing his job came with a conclusion that he believes meets scientific certainty. And because people don't like his scientific results, they're threatening his life. That's just, that's horrible.

It's not an American way of doing things. It's insane. But have you ever seen this before where the prosecution is stiff-arming the medical examiner and basically just trying to bypass him with a bunch of others? No, I have never seen it before. I have no problem telling a bunch of others. No, I have never seen it before. I have no problem telling you

I'm a prosecutor, I'm a defense attorney, I've never seen it before. I've never seen it either. But here's my question. I don't know anything about the guy. And it does seem unusual based upon that video. It's causing me to question what I believed based upon the video.

The question I have is, is he legit? Did he have an agenda? Was he, as you said, Megan, hold on, Megan even suggested it. Maybe he was trying to benefit Chauvin. Megan threw that out there. He might have been. Right?

He might have been. The defense has 15 more doctors, Mark, 15 doctors on their witness list that they're going to call in their case in chief, the defense. So there's at least 15 people. Now they might not call them all, but there's at least 15 other medical professionals who are going to take the stand and agree with the medical examiner saying that. And I think they're really going to focus. And Mark, you just said this five minutes ago. If you're the defense attorney, you're going to hammer on the medicine. There's going to be 15 doctors who are going to say, well, he was about to have a heart attack. He had 80

degree closure of his arteries, you know, and then the prosecutor is going to say, but the need of the back and that, that whole situation was a substantial cause that caused the heart attack that caused his death. Let me ask you this because I I don't like the way he he worded it. The reason I said maybe who's trying to do show a solid was because he says cardiopulmonary arrest, heart attack, complicating law enforcement, subdual restraint and neck compression. I mean, what the hell does that mean? It's like his heart attack screwed up the arrest. I mean, I think what if you were honest, he would have written cardiopulmonary arrest that it was in part caused by. Right. I think what he's trying to say is law enforcement subdual restraint and neck compression helped cause the cardiopulmonary arrest because that let's face it, Baker does wind up concluding in the same concluding same report.

This was a homicide, which means a death that occurred at the hands of another person. So he's kind of all over the board. Well, OK, so he's look of all over the board. Well, okay. So he's, look, any reasonable person would say that the arrest occurring in the manner in which it did would create great stress and I guess stress to his heart. There's no way that was a, that's right. So if he died of a heart and if that action was not lawful, which most, including the

chief is saying, cause it was excessive force, then that is a substantial cause that that physical action placed great strain upon. Yes. And already damaged heart from years of X, Y, and Z, but that that action right there sped up the process, did something that caused the heart to go. He has to say that. Because what they're going to say, I just had Dershowitz on and we were talking about how the jury instructions and even the defense, even the defense has admitted in its proposed jury instructions that to cause somebody's death is to be is you have to be a substantial causal factor, your behavior.

And the fact that other causes also contributed to the death does not relieve the defendant of criminal liability. Right. If you caused it and somebody else helped cause it, you're not off the hook. But I but apparently the defense went on to propose in its proposed jury instructions like a limiting instruction after that, saying, however, Chauvin would not be criminally liable if a superseding cause caused the death. And you guys remember this in law school, right? It's like I shove somebody out the window and if he was only going to fall two floors and probably wouldn't have died. But on the way down, somebody shoots him as he's falling.

I'm going to say a superseding cause caused the death. It wasn't me shoving him out the window. So that's what the defense is going to say. Like somehow the drugs, the drugs. He's going to say eating all the drugs. But the prosecution has responded in its proposed jury instruction saying an action that occurs prior to Derek Chauvin's conduct cannot be a superseding event. It's kind of interesting. It doesn't make a total amount of sense to me. from a commonsensical point of view, hypothetically, if the medical examiner said all the drugs are what killed him,

well, that's a superseding event or preceding event that was the cause of his death. But I know those were the proposed instructions, Megan, but is that what the jury is going to hear, number one? And I can see the jury coming back and asking during deliberations, asking the judge, please define what substantial causal factor is. Yeah.

Well, and the other thing, Arthur, is if you're the defense lawyer, you'll say, right, the taking of the drugs preceded Chauvin's arrival on scene. No doubt. The effect of the drugs taking hold on George Floyd was a superseding event. So they're going to go to town over that. As you point out, what's substantial, what's superseding and the causation. I mean, the defense is not in any way conceding that Derek Chauvin had any role in causing George Floyd's death. OK, so here I am listening and hearing everything you guys are saying. And this is

wonderful. I haven't had these types of discussions since law school. I mean, really smart people. You mean since Kelly's court? The nuance is correct. Thank you. But now let's focus on what's in that jury box. Are you kidding me? So who does all this benefit? Right? The subtleties in the law, this is mumbo jumbo to them. And all the defense lawyer has to do is say, folks, it's not our burden. If there's a reason to doubt whether this was a substantial cause or not, that's it. Coming up, we're going to get into what the police chief said testifying

against his own cop, Derek Chauvin, who he fired the day after this incident, along with the other three cops, two of whom had only been on the job for a week. They all got fired by this police chief and he's doing something we never see. He's breaking the blue wall. A lot of firsts in this case. And we'll play you the points that the prosecution made with him and then the points the defense made with him and ask Mark and Arthur to react. But before we get to all of that, I want to bring you a feature we have here on the Megyn Kelly show called From the Archives. This is where we direct you to an episode from our library that you may have missed, but we think you'll love. For this one today, we're going way back to our premiere episode.

Have you heard episode number one? It's actually our top rated archived episode. In other words, that's the one people go back to and listen the most. And it is a great one. It came out a little over six months ago now. And it was with Glenn Greenwald. Now, this is before Glenn left the intercept and went off on his own independent path and started his sub stack. Here's a clip.

I think like one of the things that a lot of people on the right don't fully understand is that establishment liberals, you know, like kind of the dominoing of the democratic party they don't actually care about politics they're not socialists they serve the interest of silicon valley and wall street and k street um and they're rich donors they're they're not at all socialists most of themselves are extremely rich from wealthy families. They use some rhetoric that's populist in nature, but populism exists far more on the right than it does on the establishment of the Democratic Party. They don't really care about politics. They're also not against war or imperialism. Obama started lots of different wars. Trump hasn't. What they care about is culture dominating the culture and the reason they

look at joe rogan and see an enemy even though if you go down the list he's pro-choice he's pro-gay rights he believes in social spending he's anti-war he endorsed bernie sanders of drugs he endorsed bernie sanders he knows exactly even though so why did they see an enemy when because they don't care about politics they care about culture culture. And Rogan is not – he doesn't sound like them, right? He's like a regular guy. He talks in regular jargon. He likes hunting and MMA fighting. He tells some risque jokes. culturally and that's what they care about more than politics and that's why i think the like the contempt for rogan among liberals in the media which is sort of the same thing at this point yes is so revealing about what they prioritize so what i did think it was interesting just one more minute on him that he signed his deal with spotify and and you know made a bunch of money off of it but already there's trouble right like he had on Abigail Schreier, who wrote, so easy for me to say, Irreversible Damage, which takes a hard look at transgender teens and why it seems to be increasing in frequency. And they had a very thoughtful discussion. I thought it was fascinating. They want the episode pulled. They want him pulled. They want him punished. And Spotify has reportedly had 10 meetings, not reportedly, the CEO confessed. They had 10 meetings about this. And it made me wonder, can Joe Rogan last at Spotify? Can

this relationship last? Yeah, it's so fascinating. First of all, I look at it kind of through the prism a lot of the primary success of a social movement in my lifetime that affected my life most, which is the gay rights movement. You know, like of age as a gay teenager in the 80s with the moral majority and the Reagan era. No one thought anything like gay marriage was even remotely possible that would ruin the full panoply of legal rights. And with my lifetime, that has happened. And one of the reasons it's happened is because so many people who wanted this profound social change engaged in the debate, right?

Like said, hey, like you have these ideas about who I am, what my life is like that aren't actually true. So get to know me, talk to me. I understand that you were raised to think differently. You have religious convictions that lead you to a different place. Let's have a dialogue so that you can actually see the reality of our humanity it wasn't this like coercive demand that everybody

swallowed this truth i'm not saying there were no elements the gay rights movement that did that but by and large it was a it was successful because it was persuasive and now like around these this trans issue there's like almost this kind of demand that nobody asks any questions about these really profound changes that are being demanded about how we think about gender, how we think about sex, how we think about the choices of children to make permanent. And this is what I find so interesting. You know, I have this media outlet in that's based in New York. So I go a lot to New York and a lot of my colleagues are, you know, journalists who send their kids to very liberal private schools in Brooklyn and Manhattan. breast removed at the age of 15, or the other way of trans women who have had genital reassignment, sexual reassignment surgery involved in their genitals that are permanent changes that they're

making at the age of 15 to 16. And if you talk to these journalists, they'll tell you at dinner over a glass of wine that they're very disturbed by the question that we don't really have a lot of science about, about whether kids are too young to be making these decisions about whether people are being misdiagnosed with gender dysphoria, who actually have other problems in the culture. It's encouraging them to think that they're trans when they're like, people have those questions. People in the privacy of their home ask the questions that Joe Rogan asked, but those journalists would never ever write about it or publicly say it because they're too scared to. They're too

beholden to liberal orthodoxy. And Joe Rogan's not. And that's why they hate him, because they can't control him. So go check out the full interview if you haven't yet heard this. But this short clip really signaled the cultural fight to come over the past few months, particularly after the election, the left, the right, the division we see in media. One of the great things about this podcast, we believe this connection with you has been that we can exist outside of this divisive, false structure of politics and media and really just dishonest, right? It's just dishonest. All they care about is getting ratings. So they will mislead and tweak you and drive you to anger because it helps their bottom line. They don't care about you. Trust me. They care about their bottom line,

but we do. I don't need a huge bottom line. I just need to deliver the news in a way that's honest and hopefully educational and entertaining for you guys. And we've been doing that, you know, and if you do it right, success follows. Um, but I almost feel like it's not totally irrelevant, but it's a little bit. It's less relevant than it would have been had I been on a cable news show. That's for sure. Glenn, by the way, had a harrowing story come out this month about being robbed down in Brazil and being held at gunpoint. You should Google it and check it out because this guy's been through a lot. He's one of the good ones. And he's in the same fight we're fighting, fighting for the right of all Americans to think for themselves and to be able to discuss controversial issues openly

and freely. This has been From the Archives. Back to the show right after this. Now the video's in question. Are we seeing what we think we're seeing? I thought I was seeing Derek Chauvin looking really relaxed and sort of like he was enjoying it with his hand in his pocket. Turns out he didn't have his hand in his pocket and that was misleading. I thought I was seeing a knee on the neck. The defense is now making the case that the knee was between the shoulder blades and putting on another camera angle from an officer's body cam showing that. And this was actually a big moment this week where they had the chief of police. This is bad, bad, bad for Derek Chauvin. Chief of police takes the stand and testify, breaks the blue wall and testifies against Derek Chauvin that this is he was out of line. This is not consistent with policy. And I and I don't support what he did. But then the cross was interesting, too. So we have both the prosecution soundbite and a good defense soundbite. Take a listen to both. As you reflect on Exhibit 17, I must ask you, is this a trained Minneapolis Police Department defensive tactics technique? It is not.

Well, we read the departmental policy on neck restraints. Is this a neck restraint? The conscious neck restraint by policy mentions light to moderate pressure. When I look at Exhibit 17 and when I look at the facial expression of Mr. Floyd, that does not appear in any way, shape, or form that that is like to moderate pressure. So is it your belief then that this particular form of restraint, if that's what you, if that's what we'll call it, in fact violates departmental policy? I absolutely agree that violates our policy. You would agree, Chief, that from the perspective of Ms. Frazier's camera, it appears that Officer Chauvin's knee

is on the neck of Mr. Floyd? Yes, sir. Would you agree that from the perspective of Officer King's body camera, it appears that Officer Chauvin's knee was more on Mr. Floyd's shoulder blade. Yes. First of all, can I ask you, he says, I don't think it was light to moderate pressure because of the facial expression of George Floyd. Like, how are we treating the police chief as an expert on that? Like,

I just to me, I was thrown by it because it's like, well, the facial expression, like you're not here as some facial analysis expert. And number two, George Floyd, I mean, the defense is easily going to be able to argue George Floyd's face looked like that because he was high as a kite and he was dying. He was dying of a drug overdose. Well, I mean, there's an element of common sense that comes into this and the police chief is allowed to testify that, you know, someone's face, what did it appear to be to you? It appeared to be somebody in pain. But, you know, you talked about the blue wall, you know, coming down. I mean, you asked earlier about watching prosecutors and their medical examiners go

against each other. I mean, I've never been involved in any kind of a case where, uh, you know, a police Lieutenant or higher here, it's the chief, uh, you know, it's coming down after his own guy. I know there is a CYA factor here, right? So, I mean, he can't come out. So chief of police can't go and say, Oh yeah, he did exactly what we taught him to do. And it happened to kill somebody. So what? I mean, but he fires the guy the next day. And it's not just the chief of police, Megan. It's, you know, the person who's in charge of training. And then there was someone who's in charge of rendering, teaching the officers how to render aid. And she testified they go above and beyond and teach them more than they need to. And they testified he did two things wrong. He used excessive force, first violation of the police, but then he didn't render aid, which is what they are taught to do. So even though he's not charged with not rendering aid, there's no way to spin this,

that this was a good day or good days for the defendant. Well, but not but but Mark, not not rendering aid. He is charged with that in a way, because if he's not rendering aid, doesn't it? I mean, it could potentially convert those last four minutes of what might have been appropriate force into excessive force when the guy is now limp. He appears to be dying. And that's where the crowd's shouts are relevant, right? You have all these witnesses. I realize, you know, a police officer has to discount what's being shouted at him by the crowd, but they're all, they're yelling, he's dying. He's dying. Take his pulse, take his pulse. And he doesn't, and he won't like that, that that's where you get,

you do get into a very strong manslaughter case. Correct. And it goes to state of mind. Listen, I think Arthur said it best last time when and I agreed with him. Stay the hell away from the officer's actions, which I don't think any reasonable expert would say would be consistent with policy. I mean, you can use some force initially when he's kicking, but then the police force has to be adjusted to fit what the suspect is doing. And he went overboard. Hammer the science. Stay away from the officer's actions and just go with what was the cause? What was the substantial cause? But I don't think there's going to be dispute amongst reasonable former law enforcement or current law enforcement.

His conduct just went overboard. And they use the word. Let me ask you this, because you can say the jury is totally free to say this cop was out of line. This cop violated policy. This cop deserved to be fired. But I'm not ready to find him guilty of a crime. Well, they they can do that. I mean, there would be almost leaning towards a jury nullification type of thing. But I think that, you know, I know there was a lot written about, there were too many police officers who testified. There were too many experts. And they said they were, I read somewhere, oh, jurors were falling asleep. Well, let me tell you something as a prosecutor, Megan,

when I was an intern, before I was even a lawyer, I interned in the Manhattan DA's office and I storied prosecutor there who's still there after 50 some odd years, Warren Murray, he taught us a sleeping juror is a convicting juror. And I think they just hammered home, you know, maybe a little over the top, but it's a big, big point for the prosecutor that his fellow officers all agree that what he, and the judge, I don't know how he allowed this, but he, the police chief said, I found it was murder. And that's why I fired him. I would say objection, Your Honor, that's up to the jury whether it was murder or not. He's not allowed to give his opinion on whether it's murder or not. But that came out. So you have the chief law enforcement officer saying, my guy murdered someone.

Wait, Megan, are we really going to let Arthur go with that theory that a sleeping juror is a convicting juror? Sleeping juror is a tired juror. I don't know what the hell kind of that's ridiculous. I don't know. I would think if I were sitting there and I have served as a juror before you have a man's life in your hands, you would feel the obligation to stay awake if you were leaning toward putting him behind bars. Megan, you're tired. The testimony can be very boring. You're sitting there all day, low blood sugar, high blood. People fall asleep. I do it after lunch. My law school, I fell asleep half the time. It doesn't mean they're leaning towards. All I can tell you, Mark, is the Manhattan DA's office had a 90 percent conviction rate. So

he must have been on to something. Well, listen, I do. I talked about this with Dershowitz a little bit, but I'm interested in your take because they've let in so much emotional testimony that I don't think belongs in a trial. I really think like they had the one woman, Daniela Frazier, who took the videotape we've all seen, you know, talking about how I when I watch this, what goes on in my mind? Oh, how it could have been my brother or my dad because they're black. What? You're so correct, how it could have been my brother or my dad because they're black. What?

You're so correct, Megan. You're so my mom. You guys know my family. My dad's a criminal censoring for everything for 50 some odd years. My mom said my dad's been screaming at the screen with all of this objection, objection, objection. Yes, they're allowed to come in and it's a and it's for the benefit of the prosecutor. Well, listen to this one, Mark. Listen to this one. So they had the store clerk, Christopher Martin, testify. This is the guy who took the twenty dollar bill from Floyd. And as we mentioned, he talked about how he seemed happy in the in the store and fine, but but high. And the they queued up like you were. We see you on the video after the fact, like really pacing around and pacing around.

And they try to have like a little emotional therapy session. You tell me whether this is appropriate. Listen, you saw you standing there with your hands on your head for a while. Correct. Great. What was going through your mind during that time period? I disbelieve and guilt. Why guilt? If I would have just not taken the bill, this could have been avoided. All right. If I would have not taken the bill, this could have been avoided. All right. If I would have not taken the bill, this could have been avoided. Objection. Move to strike. No foundation. You don't know that. That's up to the jury. This could have happened immediately because George Floyd had a lot of drugs in him. And by

the way, what do I care what was going through the store clerk's mind while he was pacing around outside of the seat? How is that relevant to anything? Add that to the list of things that happen in trial that just come out, and then you might realize, oh my God, that shouldn't come out, but it came out. What am I going to highlight it? You know, maybe the juror was sleeping. I don't need to object and wake him up and let him hear it. So, you know, you just let those things go. And it has very little weight really in the trial, so you don't make a thing about it. What did you think about all the crying jurors, not jurors, all the crying, um, witnesses that the crowd, you know, they let them take a stand one by one and talk about how witnessing this has affected their lives. How is that even remotely relevant? It's just an emotional play

that I think is so obviously too prejudicial to come in. But this judge, I think he's worried about being reversed or pilloried by, you know, cable news pundits. I don't know. He's letting in a lot. And in his defense, the defense is not objecting to all of it. Some of it. Yes. That I don't think you should let in.

But that's it. Hold on one second. I was about to ask you, well, wait, did the defense object to that? I would have. But if the judge is letting it in, he doesn't sue a spot on his own. Say, wait, stop one second. I was about to ask you, well, wait, did the defense object to that? I would have. But if the judge is letting it in, he doesn't sua sponte on his own, say, wait, stop one second. Do not. There might be a reason why both sides are letting it in. So it's not on him. I put that on the defense attorney. In fact, I would have moved in limine before the trial began. Their personal feelings about how this affected them belongs in some personal injury trial, not in this trial.

And Megan, if you go ahead, Megan, you brought up the fact that one of the about how this affected them belongs in some personal injury trial, not in this trial. And Megan, if you- Go ahead, Arthur. Megan, you brought up the fact that one of the witnesses said, oh, when I was looking at George Floyd, it could have been my, I forget, my father, my brother. You know, that to some degree,

if you're a defense attorney with a decent set of cojones, could say, really? So that reminded of your father and your brother did your father serve 20 20 months in jail did your father ever take a gun and put his listen you you as a defense attorney under this desperate situation you do everything you can to make sure you talked about in the beginning of this podcast about humanizing him that's what

you want to do as a prosecutor. As a defense attorney, you want to let the ladies and gentlemen of the jury know who George Floyd, his whole background, the whole story. And sometimes you got to use some tactics. I don't like that. I don't like that. You lost me. I don't like that one. I disagree.

Listen, you guys practice differently in Florida. In New York, we take the gloves off, my man. Yeah, we're real gentle here. We're so gentle in Miami. We hold the witnesses' faces. Yeah. Florida's known for its totally normal behavior. Right. But, Megan, you're right.

None of that stuff should have come in. And, you know, Mark, I'm sure you have appeared in front of judges who do sua sponte, just say sustained, without anyone saying an objection when something's coming out that is so obviously against the rules of evidence and one side or the other is sleeping. I can tell you, Judge Neil Firetog in Brooklyn, New York, Supreme Court, used to do it all the time, sustained. I'm like, Judge, no one objected.

I know, but I'm not letting evidence that's not admissible in my courtroom. Yes, I'd love to hear more of that because I realize these are sympathetic people. They watch something that they didn't want to watch. They have real guilt. I believe that about not doing more. But all of it is irrelevant. They're not medical experts. They didn't have the full picture.

They had one vantage point. As it turns out, there were many other vantage points that are super relevant and better positioned to see and tell us what the truth was. I think the defense had a very good case. None of these people should come in. None of them should. I don't we don't need to hear from anybody except those who want to lay the foundation for the videotapes they took. But I certainly don't need to hear about how it's affected the lives of the witnesses. You could take anybody on TV, anybody who's watched the tape on TV and have them talk about that. It isn't relevant. It's just prejudicial to Derek Chauvin. We don't disagree with you. Their personal feelings are relevant, but they certainly have

every right to be heard. They're not only shooting the video, but they're seeing it with their own eyes or looking around. They're seeing other things that are not captured on the video. So they have every right to testify. But as a defense attorney, my job is to limit the scope prior to them getting on the witness stand. So I don't look like I'm hiding anything in front of the jury. When in doubt, I'd probably just let it come in because, again, I'm pounding the science. And so, again, I'm trying to keep it out. But if I if I don't do it beforehand, which I would or I try and it comes out, I don't want to look like I'm hiding anything in front of the jury. So I probably just let it go, especially because the key to this case doesn't hinge upon what flows from their lips. It hinges upon the science. And that's what I'm pounding. But, Megan, to your point, as soon as to your point, I mean, Mark's correct.

One hundred percent. They could testify. They're eyewitnesses to the crime. But as soon as the prosecutor says, and how did that make you feel? Objection, Your Honor. Right. This isn't an episode of Oprah. Right, exactly. Again, Mark's 100% correct.

They're allowed to say, I saw Chauvin do this. I saw him do that. I saw George Floyd do this. But then you don't get into, and how did that make you feel? Hold on. I think maybe they could

because then based upon how they felt, they then took, you know, the next action. Right. So I don't think it's as clear cut as you guys are saying. So how did it make you feel? Well, I was angry. And then what'd you do as a result? I yelled at the officer. Really? So I think it might all go into that. And so it might come into play. Okay. So where do you guys stand now on whether if you were representing Derek Chauvin, you would call him to testify, Mark? Not a chance in hell. I mean, again, a slim chance because, you know, you want to keep that open, but he looks best sitting there with his mouth shut. Like most of the clients that I represent, even the ones who look great and they all look better, sitting there, me humanizing them by touching them and bringing things out throughout the trial that bring on his personal life. But the minute he opens his mouth, there's way too many things that he cannot explain to satisfy Megan's curiosity. It's not going to happen, Megan. So you keep them quiet. And this is about science. That's it.

It also, Megan, it also has the effect of shifting the burden. All of a sudden now, it goes from the prosecutor's got to prove their case beyond a reasonable doubt. And even though that's the law, once you put your guy up there, it almost becomes a, he said, she said, all right, now who do I believe more? Even though the judge will tell them in his final jury instructions to them that that's not the case that ultimately winds up happening. How flip side of the coin is there's been cases where I haven't put the guy on and I didn't get the result that I wanted. And the jury said, we needed to hear from your guy. We needed to hear. Now what I knew what

they didn't know is if he went up there and said, what do you really do? Definitely do 25 to life. Would not have helped him. Here's the question, Megan, to help you with this decision. If the defense theory, which you've established is that the kneeling was not the substantial cause. So we're talking about science and this is all about your experts versus their experts, right? What value then on that issue does your client have to bring to these jurors? I say that rhetorically, the answer is nothing. He doesn't. Well, wait, but let me but let me ask you, let me ask you, because the to to prove the assault that led to the death, which is, you know, that's that's part of murder, too, right? It's felony murder, basically,

is what he's charged with. And the felony is assault. You got to prove intent that he intended to harm. Now, again, it's weird when you have it when it's a cop affecting an arrest. There are there are different considerations and different language will go into the jury instructions because it's not like he just saw George Floyd and started hurting him. He was there for a reason. And in affecting an arrest, you're allowed to basically assault somebody, put your hands on them in a way they don't like. So anyway, it gets complicated. But intention appears, at least on paper, to be an element of the crime. And that's why he put him on. Megan, what can he tell you to get you to feel differently than his own chief and the other experts who say that this was excessive force? And I say that rhetorically. I know that's a great question. There's nothing he can say that's going to get you to change your opinion.

Nothing. Megan, if I can just interrupt. Breaking news. A medical expert testified that George Floyd, quote, died from a low level of oxygen, rebutting defense arguments that drugs contributed to his death. So that's what they're going to say. They're going to say the defense all along. And I mean, sorry, the prosecution.

And they've said in their opening that he died of asphyxia, which is basically lack of oxygen. So this is the witness that's basically going against the medical examiner. Yeah. And there's going to be more. They have a bunch of medical. I mean, Dr. Bodden was one of the people that the defense that George Floyd's family had come out there and, you know, he did his thing and he's ready to testify for the prosecution, too. But yeah, they're going to have no shortage of medical testimony disagreeing with the medical examiner, Dr. Baker. But Dr. Baker is the only one who actually laid hands on George Floyd's body, who actually physically examined him, who said there was no bruising on the neck, not even in the under layers, like when he dissected the neck, did he see any trauma to it?

And in fact, what he saw was a guy who died of a heart attack. So he's got, he's definitely got a greater level of credibility coming in. We'll see how he sounds when he's on the stand. Right. But I'm not surprised because that's the prosecution said in opening is we're going to prove he died of asphyxia. That's what they need to prove. And the defense said, no, it's a heart attack.

And if the prosecution's smart, they'll put on somebody who says not only did, yes, asphyxia, but if it wasn't asphyxia and it really was a heart attack, it was a heart attack caused by Derek Chauvin. What he was doing to him, at least forcing a difficulty breathing, if not cutting it off, could lead to a heart attack. Right. There's a lot of ways to skin the cat, so to speak. There's a lot of arguments they can make. So what do you think now? Prosecution hasn't rested. How do you place the odds of a conviction on anything, Arthur? Oh, I think I don't think, I don't see any scenario where Derek Chauvin, you know, walks out of that courtroom. It's just the issue. And these are weird laws, as you were describing, you know, the felony murder, which is the top count, which you know the prosecutor wants that

really badly. I think their argument is going to be, in closing arguments, and look, we still have a couple of weeks to go, but the prosecutor is going to say, according to the police chief and all the other police experts, after he subdued those other four minutes where he's lying there motionless with his knee to his neck, that is an assault. At that point, he doesn't need to be doing that. He's using excessive force, and we're telling you that that's an assault. And if while he's assaulting him, it causes his death, you have to find him guilty of murder in the second degree.

What do you think, Mark? Couldn't have been said any better. I'll take the other side, just because let's try to take the other side. The prosecution... Hold on. I'm on the defense side just because let's try to take the other side. The prosecution, hold on. I'm on the defense side. I'm arguing. Okay.

Who do I represent? No, but it's also weird because I have to discredit my own, you know, on the defense side, I have to say, you'll see why it's difficult. Here I am, the defense lawyer saying the prosecution failed in their attempt to discredit their own witness concerning the cause of death. We have now, we have controverted testimony, but credible testimony from their medical examiner, and they didn't like what he had to say. So they went and found other people. So now you've got some opinions in favor of the defense, some in favor of the prosecution regarding the cause

of death. That's reasonable doubt. Yeah. Believe Dr. Baker. I have to tell you, I'm laughing over here picturing you, Mark, touching your clients like Joe Biden with a teenage girl like the little, you know, the photo booth where you get the four photos of the two of you posing. You'll do whatever it takes to humanize your client. Oh, Arthur, you know, Arthur touched Weinstein. You know, he did all the time. Oh, because Weinstein enjoyed it. He's like, this is not how it's done, Arthur. I'm taking the fifth. I'm taking the fifth. All right, guys, to be continued. We'll talk again soon. Thank you so much, Megan.

Our thanks to Professor Dershowitz and Arthur Aydala and Mark Eichlar. And don't forget to tune into the show on Monday because we are going to have Clay Travis, the founder of Outkick.com. If you're not getting your sports news and commentary from Outkick.com, the question is why? That's where you need to go. What are you watching ESPN for? That's far left.

It's woke. It's been annoying for even me, a non-sports fan, because their crazy woke lectures meander over into the lane of news and I get bombarded by them all too often. Well, Clay felt the same and left and created his own venue.

And, you know, our pal Ben Shapiro mentioned something to us about possible partnership with them. Is that going to happen? Are they going to grow? Are they going to dominate? Are they part of the new lane of communication that we're all trying to create? We'll talk to him about it and I'll ask him about MLB and why he hates Georgia but loves China.

That'll be fun. Tiger Woods, did you hear the release of the information on what caused his crash? Why was that kept under the vest for so long? Anyway, Clay's great on everything. He's a lawyer. He's learned. He's easy to listen to. And he's our guest. So go subscribe, download, rate, five stars. Please give us a good review. Still reading them. Still reading. Still reading. Over 16,000 and counting. And they're super fun. The other day, Yardley said, can I read them to you?

I'm like, okay. So she started reading them. They tend to be nice. So that was good. She's seen enough bad things about me. It's nice for her to see some good things. And she gets to one and it's like, Megan, yeah, I love your show, but sometimes you can be an a-hole. I don't know.

She kind of paused, looked at me. Oh, we both laughed. It was a good chance to laugh at myself, which is another good thing to model. Anyway, those thoughts, you can, you know, you can keep those to yourself if you really think about it, unless you feel really strongly. Anyway, I hope you have a great weekend, and we'll talk more on Monday. Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear. The Megyn Kelly Show is a Devil May Care media production in collaboration with Red Seat Ventures.