As defense prepares to call witnesses question remains: Will Chauvin testify?

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Chao Xiong, Star Tribune
·7 min read
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As former Minneapolis police officer Derek Chauvin's defense presents its case this week against charges that he murdered George Floyd, a question looms over his trial: Will Chauvin testify in his own defense?

Under the U.S. Constitution, defendants have a right to refrain from testifying without penalty, but some local attorneys said there are compelling reasons for Chauvin to get on the witness stand.

"You've got to remember that this is a case that really centers on Chauvin's state of mind, and the best person to tell us about that would be Chauvin, so you might really be forced to put him on in this case," said veteran defense attorney Joe Friedberg.

The issue is likely to arise soon as prosecutors cap off two weeks of testimony in their case early in the week. Chauvin's attorney, Eric Nelson, is expected to begin calling witnesses for a few days of testimony before jurors begin deliberations. Nelson has not said whether his client will testify.

Chauvin faces charges of second-degree murder, third-degree murder and second-degree manslaughter. Three other former officers who were at the scene of Floyd's May 25 arrest — J. Alexander Kueng, Thomas Lane and Tou Thao — are scheduled to be tried Aug. 23 on charges of aiding and abetting second-degree murder and manslaughter. All four defendants, who were fired, are out on bond.

Other attorneys and legal scholars said there's little Chauvin can say to overcome a bystander's graphic video showing him kneeling on Floyd's neck for more than nine minutes as he pleaded for his life and repeatedly said he couldn't breathe. Pleas for mercy from several horrified bystanders, including children and an off-duty Minneapolis firefighter, were also captured in the video.

"Chauvin doesn't come across as a character that you want to root for because of the video," said Joseph Daly, emeritus professor at Mitchell Hamline School of Law. "[Prosecutors will] take him through every single second of that video and have him testify. In cross-examination he'll just get beat up. It'll be horrible for him. The risk is so immense for him to testify."

In a recent interview, Floyd's brother, Philonise Floyd, and sister-in-law, Keeta Floyd, said they want to hear from Chauvin.

" … He won't be able to handle what's thrown at him, because how can you explain that you had your knee on a man's neck for nine minutes? How can you explain that? There's no way to explain. You can't," Philonise Floyd said. "So it will be a good thing [if he testifies], but I know that's not going to happen."

Prosecutors have argued that Chauvin used excessive force and an unsanctioned maneuver when he knelt on Floyd. Testimony from several Minneapolis police leaders, including Chief Medaria Arradondo and Lt. Richard Zimmerman, the department's head of homicide, supported the state's claims.

Nelson has argued that Floyd likely died of a drug overdose complicated by pre-existing health issues, including heart disease. Nelson told jurors Floyd was resisting arrest so forcibly that it rocked a parked police squad back and forth, and that Chauvin followed his training amid a threatening crowd.

Defense attorney Mike Padden said Chauvin needs to testify to explain the reasoning behind his actions and to apologize, which could help negate the "depraved mind" element needed to convict him on third-degree murder.

"I don't think he has any choice but to testify," said Padden, who believes a conviction is more likely on third-degree murder than second-degree murder. "It'll be a mistake if he doesn't. The jury needs to hear from him, that's the bottom line."

Friedberg said Chauvin's testimony could also further the defense's argument that he placed his knee on Floyd's shoulder. Nelson has introduced the concept of "camera perspective bias" and played clips of police bodycam videos that showed Chauvin's knee on Floyd's shoulder. The state has countered that with images of the knee on the neck.

"When the defendant takes the stand and denies the things that make up the crime, that's got to make the jury pause …," Friedberg said. "If the jury gets into an argument about where the knee is, that's a good thing for the defense."

All three officers who have been previously tried in Minnesota for killing a civilian on the job — Jeronimo Yanez, Mohamed Noor and Brian Krook — testified at their trials. But unlike in Chauvin's case, all three officers said they acted because of a perceived threat to their life or the lives of others. Two of the civilians in the previous cases also possessed guns.

While Nelson has previously said in court filings that Floyd posed a potential threat, the issue has played a minimal role so far at trial.

The amount of time Chauvin knelt on Floyd is also a key difference. Through their attorneys or in direct testimony, Yanez and Noor said they were forced to make a "split-second" decision to use deadly force, a phrase and defense that resonates with jurors, who often give police the benefit of the doubt, attorneys said.

Yanez and Krook were acquitted. Noor was convicted.

Chauvin can't help his case by testifying, said defense attorneys A.L. Brown and Andrew Gordon. Testifying would also open the door for prosecutors to probe his background and past policing depending on his answers.

"He's not incredibly sympathetic, so he doesn't offer much by way of story line," Brown said. "It's even worse for Chauvin because he's got the chief of police saying: This guy's not with us. We didn't teach him to do that."

Gordon predicted that Chauvin would not testify given how infrequently he appeared as a character in Nelson's opening statement two weeks ago. Nelson first mentioned Chauvin about halfway through his 24-minute opening statement, and kept references to him brief and specific to his actions at the scene. There was no deeper dive into Chauvin's 19-year career with Minneapolis police or his role as a trainer for new officers. There was no mention of details about Chauvin's background and life.

"Most defense attorneys will tell you that you have to spend some time in your opening statement humanizing your client," Gordon said. "You need them to be a person for the jurors. … Ultimately, though, they likely made a strategic move to not dwell on it, since they have a baked-in advantage: Chauvin is a cop, and the uniform and badge does a lot of the humanizing for them."

While the topic of testifying was surely discussed between Chauvin and Nelson long before trial began five weeks ago with jury selection, the final call often occurs at the end of the defense's case, attorneys said. Defendants can testify at any point once their attorneys begin calling witnesses; they typically take the stand at the end of their case.

Attorneys consider a number of factors in determining whether a defendant should testify: what they add to the evidence, how well they handle difficult questions and how believable they are.

"So much of this is a gut check for us," said defense attorney Michael Brandt. "We will have someone come in and do a whole mock examination and mock cross-examination so the client, should they choose to testify, will be prepared."

Nelson has represented clients in high-profile cases who testified at trial: A tearful Amy Senser testified in 2012 about the night she fatally struck Anousone Phanthavong with her car and left the scene. Senser, the wife of former Minnesota Viking Joe Senser, was convicted of criminal vehicular homicide.

In 2015, then 20-year-old Levi Acre-Kendall testified in a Wisconsin courtroom about the night he fatally stabbed Peter Kelly in self-defense when Kelly dragged him out of a car following verbal jabs between their groups of friends. Acre-Kendall was acquitted of all counts.

"I wish I could take it all back," a soft-spoken Acre-Kendall testified as he broke down in tears. "I'm so sorry." Acre-Kendall remained calm in the face of aggressive cross-examination from the prosecutor.

Nelson credited Acre-Kendall's testimony with turning the case in the defense's favor. "His testimony, in general, was honest," Nelson said at the time. "It was sincere. It was heartfelt."

All else aside, a defendant's likability plays a major role in putting them on the stand, said Brandt and Friedberg.

"Remember now," Friedberg said, "[Chauvin would be] taking the stand as the most hated man in America."

Chao Xiong • 612-270-4708

Twitter: @ChaoStrib