r. So if Chauvin and his lawyers can demonstrate that a reasonable person wouldn't have known this could kill somebody no crime is committed. There has to be something in the officer's head that gets to either intention. And by the way he's not even being charged with intentionally killing him. Did you know that? The charge does not include any thought that he did it intentionally. It's just not even in the charges. That would I think be first degree, right?

The charge is that a reasonable person should have known that his actions would put at least a risk of death. So that's what the prosecution has to show. Let me give you a little more detail on this. Here in Psychology Today — I know it's not a legal document but there was a writer Barrett Brogaard who did a real good job of just sort of laying out what the charges are.

So here are the charges. He's charged with second degree unintentional murder, third degree murder, and second degree manslaughter. Now here's a little bit more on that. Now first of all is this confusing? This is really confusing stuff. How many people in the jury are going to be capable of really sorting through this amount of nuance? It's kind of hard. You know we're asking ordinary people to do a pretty tough task here. But I think they'll take it very seriously and I have at least some optimism that they'll get it right.

So here's what we need to know. There's nothing about intentional in the charges. But proving second degree unintentional murder this is what it would require. Showing that the defendant officer Chauvin caused the victim's death — that part we know from the medical examiners or at least that's the testimony — and had specific intent to inflict bodily harm short of death. So was the officer trying to harm Floyd but maybe he didn't think that would kill him but he was trying to cause him a lot of harm? And if that went too far he would be guilty of murder. Is that what happened?

Well how do you treat a police officer who does intentional harm in the act of subduing somebody? Don't you? If you tase somebody and they die with a taser are you guilty of murder? Because we know that a taser can kill people. Do you know what kind of people can be killed by a taser? People with weak hearts. Such as I'll just pick one example of a person with a weak heart: George Floyd. If George Floyd had been tased there was a pretty high likelihood he would have died from being tased. Is tasing an ordinary thing that police do? Well I hate to use the word ordinary but we see it a lot. If you're a citizen you've seen lots of footage of police tasing people. And there is evidence that if you had a weak heart and you got tased you could die. There's some evidence. A number of people have died that way.

Now I don't believe that this situation was taser worthy meaning that I don't think he would have appropriately used the taser in that case because that might have been a little bit more. I don't know that for sure but it seemed like it wasn't really called for. The police had enough human power and Floyd was sort of only half resisting. It didn't look like a taser situation to me. But suppose you knew that within police procedure there's this thing called a taser and it would have killed him or could have. You know there's more risks with him. That sort of gives you a context in your head as just a citizen that police do things that can kill people without intending to kill him. That it's actually a normal fairly routine. The police are putting let's say force on people in a variety of ways and each of those variety of ways could actually kill somebody.

So I don't believe that in the context of police work holding somebody down with the intent that it would hurt if they tried to get up — it didn't look like trying to hurt him so much as obviously trying to contain him. Or since we're talking about reasonable doubt a reasonable person could say I don't know I can't read his mind. I don't know if his intention to hurt him. It looked like it was his intention just to keep him subdued. So I think this part about specific intent to inflict bodily harm short of death is not demonstrated by any evidence is it? Does anybody have any evidence from anybody that would suggest we know the officer's internal mental thoughts? I don't think so. So it looks like the prosecution hasn't made that case. So that one is a second degree unintentional murder.

So here's another one. Third degree murder. It requires showing that the accused officer Chauvin caused the victim's death and their acts were eminently dangerous and were performed with a depraved mind. Now a depraved mind means that you have — you're just sort of an evil person. You're an evil person and you did things that you knew put somebody in mortal danger but you did it anyway because you're just sort of a bastard, right?

What evidence has been presented that would show that Chauvin has a depraved mind? None, right? I don't believe there's any evidence presented to that. Is there? Has anybody seen any evidence even proposed that goes in that direction? I haven't seen any. And that their acts were eminently dangerous. Now this so it's even two parts because there's the word and here. So I'd have to be a lawyer to know that if you could really separate these ands. But let's take it the way this writer wrote it and say that it has to be both eminently dangerous and done with this depraved mind thing. There's no evidence of a depraved mind. No motivation in evidence etc.

So eminently dangerous. Let's just look at that and see what evidence we have for that. Now remember the standard is reasonable doubt. The standard is not we know what happened. The standard is is there a reasonable doubt about the prosecution story? So let's see if there is.

What would — oh this is interesting. Before I do that. So without anybody really making note of it the prosecution and the defense have agreed that the video has been debunked. Do you believe that is my statement true? That as of yesterday both the prosecution and the defense are on the same page on this following fact. That the video has been debunked. Here's what I mean. Up until really about yesterday a hundred percent of the world believed that his knee was on George Floyd's neck for nine minutes. Pretty much that's all anybody's talking about. His knee was on his neck for nine minutes.

And now both the prosecution and the defense based on witnesses agree that wasn't the case. It looked like it but it wasn't. Because the video shows that his knee was in different places. And I'm saying that the prosecution agrees because they changed the way they talked about it. Now they're talking about the knee in the neck area on the back and the neck area. They've started moving it off the artery stuff and now it's just sort of in that area and we don't know how much pressure was on it etc.

So this is although the fact that his knee was not on a neck did not change the potential liability for the officer. Because we have medical testimony now that wherever that knee was whether it was sort of backish or neckish both of them could have killed him or would have been the cause of death. So it's no defense apparently to say no it wasn't exactly on the neck the whole time. Because the position of him with the handcuffs on on the ground with a guy on his back and a bad heart and had some drugs in him he put all that together and he could have. And one of the medical people said he was killed cause of death by the knee on the neckish backish area.

But here's the point. It debunks the video. It doesn't defend Chauvin because the new theory of death about the specifics of it still would make him guilty of something if he did it with this depraved whatever and some kind of knowledge that it would be bad. But it's important that the defense change their entire theory in the middle of the thing. The entire world believed that the one thing that we all believed to be true was that this damn knee was on George Floyd's neck for nine minutes. And we just found out that wasn't true. And even the defense is acknowledging it. That's a big deal.

Here's why. It showed that you can't tell what's happening on videos, right? That's the takeaway. The takeaway is we were all — defense, prosecution, public, 100 percent of the people who saw the video initially were all wrong about a really important point. Where exactly was that knee? Because if the knee was on the neck the whole time suddenly that feels like you know a little bit about his intentions, right? Maybe you don't but it feels like you do doesn't it? That feels like an intention. But if you see that he moved it around now you've got reasonable doubt. But that reasonable doubt would be removed perhaps if you thought that Chauvin knew that no matter where his knee was this positional asphyxiation thing was potentially going to be fatal. Did he know that?

So I think it's amazing that the video has been debunked but it's still the evidence.

All right so here's how I would approach it if I were the defense. And again I'm not a lawyer so just assume that I don't even know what's going to be allowable in court right? Doesn't mean any of this could actually happen. I'm just giving you my human being defense not a lawyer defense.

I would start by saying that we live in a world in which it is typical to see two movies on one screen. And I would explain that. Let's say how many of you in the jury are familiar with the Laurel and Yanny situation? And you would see the people nervously giggle in the jury because most of them are familiar with how easily they're fooled with the Laurel and Yanny. And then I'd say and ladies and gentlemen of the jury you know that before you came in here every one of us — and I have to admit even the defense — before we looked at the video in detail we too thought that knee was on his neck for nine minutes. That was the movie we thought we were watching.

But now that we've watched it from a number of angles and had experts testify we know that there was another movie playing at the same time. There was one that we all thought we saw and there's one that's different. So different in fact that the prosecution has changed the cause of death. Still they say it's my client but a completely different mechanism of death that we're just learning now. It was the video that got us here and we've all just agreed that we didn't see it right? Video is bad evidence. Laurel and Yanny taught you that. You've probably seen a number of videos you know in your own experience. I don't have to mention which ones but in your own experience have you had let's say in the last year or two have you seen anything that looked real on video and later you found out it wasn't? Besides this case. And most people would be yeah I can think of an example.

And by the way it's good hypnosis to let them come up with their own example. If you give them an example they'll fight with it and say I'm not sure that's an example. If you say have you ever seen an example where people were fooled by video and maybe you were, people will come up with their own example that they don't fight with. So that's why you let them fill in the blank. You don't fill it in for them.

So once I have established that the prosecution had changed their entire argument from the neck thing to the positional thing I would say look how easily we can be fooled. Just to put some doubt in their heads right? And then I would say if we're trying to figure out whether Derek Chauvin knew that he was putting Floyd in risk here are the questions we must ask.

Number one why did all the other police officers who were in the scene not intervene? Well there's a number of possibilities and we don't have it in evidence right? One possibility is they were just maybe they were timid. They didn't want to interfere with a veteran officer. One is they were all racists. Every one of them was a racist and they were just happy to see Floyd killed. I don't think that's the case but I'm just saying all the things that are possible.

Here's another thing that's possible. Did you notice that all the police did nothing but yet all of the non-police the citizens were quite sure that he was being killed? But none of the police at least acted as if they thought that was a serious risk. Why would that be? Well I'll give you a few possibilities. One you're a bum bro. I'll just get rid of you if it's the best you can do is yell at me in all caps. And by the way you haven't heard my conclusion yet so I'm just saying what the defense could be. Don't assume this is my opinion all right? I'm just telling you what the defense could be.

All right so why did all the cops stand down and the non-cops thought it looked like murder? Here's one possibility. Remember we're only going for reasonable doubt so you don't have to agree that this is the reason. You just have to agree it's one of the possible reasons and we don't know. That's all I'm going for. One of the possible reasons is police are experienced and they're trained. Citizens are not experienced in police stops and they're not trained. The police probably are aware of the guy who is the police trainer who testified and said that in his opinion Chauvin used the least amount of force that was to get the job done and that it was not a deadly situation.

Now is he right or is he wrong the police trainer? It doesn't matter. Here's why. The police trainer is a reasonable person. Nobody said he's crazy. He's a reasonable person. If you would put the police trainer in Chauvin's situation he was saying he would have acted about the same and he trains it. He not only trained Chauvin but he probably directly or indirectly was involved with the training for all of the other officers. Could it be that the reason people who are trained didn't get into it is because the training told them this was safe? But if you were a citizen you had not been trained by that. You've never heard this training. Remember they usually say they can't breathe. They say they're in pain. The handcuffs are hurting their wrists. They all say it. It doesn't mean it's true. But the public's never had that training. Never had that experience.

So I would say that the activity of the other police officers the fact that not one of them would get involved suggest that police are watching a different movie. The movie they were seeing is just somebody taken down according to policy and it would be safe according to their movie. The way they were trained. The citizens were seeing somebody with a knee on their neck for nine minutes as the lights were going out in his life. They were watching a different movie.

So to imagine that these people who have viewed the same incident is just not true. They weren't viewing the same incident. It was the same facts but the way they filtered it had to be different. One was filtered through training and experience. One was filtered through no training and experience. So there's some reasonable doubt right there.

Now what about the way Chauvin himself acted? Do you think that if he believed that he was putting Floyd in mortal danger that he would have continued to do it in front of lots of witnesses in front of other police cameras going? Could Chauvin have reasonably believed that putting himself just the officer himself in a situation where witnesses would watch him end the life of a black man who's on the ground? Do you think that Chauvin thought that there would be no consequences if something bad happened to Floyd in that situation? Not reasonably. No reasonable person would think that he would be just go about his day if Floyd died.

Is there any evidence that Chauvin is a sociopath? I don't believe so. I don't believe there's any evidence that he's some kind of weird sociopath. How would you feel if you held somebody down and they died? How would you feel? It would ruin your freaking life if you killed somebody accidentally. You would never get over that even if you're a cop right? Cops are a little tougher right? They've seen more things. They've got training. But even a cop it's going to ruin his freaking life if he accidentally kills a guy because he had his knee on him for nine minutes.

All right so is it reasonable to imagine that even Chauvin knew that he was putting this guy in that much danger when his trainer would have done the same thing the police around him apparently either didn't intervene or would have done the same thing? Now you could ask yourself should he have known and that would be an interesting question but I don't think it would be legally useful because all you have to demonstrate is that a reasonable person in that same situation would have acted the same way. A reasonable person. And we have that proof because the trainer acted the same way and all of the other police officers acted the same way. Everybody who had similar training everybody acted the same way. And everybody who didn't have that training acted in a different way. Two movies on one screen with a perfect explanation of why people are seeing the movie differently.

All right there's also the issue that the crowd was threatening and apparently police procedure is that you take care of the threat to the officers first and then you treat anybody who might be having medical problems. You could argue that it shouldn't be that way but it is that way and that's exculpatory too.

But here's the interesting thing. So here are two kinds of demonstrations that the defense could do. Now I don't know if these would be allowed right? So there's a question of what the judge allows. But imagine the defense attorney takes in a bathroom scale puts it on the floor during closing arguments gets down on two knees one knee on the bathroom scale and one knee on the floor. What do you think the scale would register as weight assuming that you're trying to not put your full weight on the down knee? What would be the weight? It would well have you tried it? I tried it this morning. I put down it looks like somebody tried it because they have a number there. So with me it was around 50 pounds. All right so my weight is probably 158 something like that. Chauvin was 140 so not too far out of the range and mine was about 50 pounds.

Okay so one demonstration is just having somebody get down and about the same size as Chauvin or have Chauvin himself I guess you could have him do it himself just get down on the thing and show that it looks like about 50 pounds at minimum. Now does that mean that Chauvin was giving him only 50 pounds of pressure or could he have been leaning right into it? It'd be hard to tell in the video but it gives reasonable doubt because now you're not sure was he putting 140 pounds on it or is he putting 50 pounds on it? Because George Floyd was a big guy right?

Let me ask you this. Well actually let's take the next example first. The other thing and I don't think this would necessarily be allowed by the judge but you can imagine the defense attorney giving his closing arguments on handcuffed and on his stomach while three people were sitting on him and he just talks through it you know. So he could demonstrate it that way.

But let me tell you the most persuasive way to do a demonstration. One of the things that the video lies about is the sizes of the people involved. Remember you know a picture doesn't lie. Yes it does. Pictures lie better than anything. There's nothing that lies better than a picture. Pictures are the best way to lie. But one of the things that the video doesn't give you when you're seeing George Floyd's head basically and then you're seeing Chauvin you can't tell how big either of them are. Floyd was like six four and probably 200 something and he was big strapping youngish guy. Chauvin was 140 pounds and five eight I think five eight.

So if you did your demonstration in the courtroom and you were trying to show the jury what they didn't necessarily see on video somebody says six six and 240 pounds I could say that it's somewhere in that range. So here's how you do the demonstration in the court. You would get a very large wait for it white man to play George Floyd. Got to be white but about the same size about the same age big healthy looking muscular youngish big white guy. Then you get three black guys who are about 140 pounds to play the role of the police officers. And then you could see that there was a big difference between the people on top and the person that they were subduing. Because imagine the jury is seeing the actual dimensions of the people which you can't tell on the video. It doesn't show you right?

Somebody thinks I'm a right-wing shill. If anybody's new to this I'm left of Bernie and I don't identify with too many things that you would call right wing. So do your homework. Don't be a. Learn something about me before you criticize okay? Just don't be a about it. Just try to up your game a little bit. Criticism's fine. You're welcome to criticize but just get a little bit of information before you do it. Because if you're criticizing without even knowing who I am you're just being a. So don't be that okay?

All right and it is fair and interesting to talk about the trial and how it will go. This is not a political thing it's a legal thing and it's interesting. It's also a prediction thing. Let you know where things are going.

All right so if you did that demonstration I think people would see it. And if you reversed the ethnicities of the people involved it would really mess up the brains of the jury because then they would see with their own eyes that race had influenced them. You want the jury to know that the races of the people involved bias them and the way to do it is give a demonstration where you reverse the races and nobody would give a if a 140 pound black police officer put his knee for nine minutes on a 240 pound strapping six foot six white guy on the ground. Nobody would give a right? And I'm not saying that has anything to do with racism. It has to do with there's a natural what would you call it revulsion toward the powerful beating up the less powerful. It's a natural revulsion and you could even be a racist and you'd have the revulsion right? Because when you see somebody in power doing something bad to somebody who you think is a group that has no power that's way worse than if you reversed it and the person getting hurt is the powerful one in other situations right?

And reversing the ethnicities to do your demonstration you wouldn't have to say any of that. The people in the jury would get it. They would say why did this seem so bad when the races were the other way? And the answer is it is worse when the races are the other way. That's not it's not an illusion. It is worse when the powerful are squishing the less powerful. That's worse. But that doesn't change the legal liability. The fact that it feels worse and is worse it is worse right? I won't even say it feels worse. It's just worse you know. Squashing the less powerful is just the worst. But it's not worse from a legal perspective. No worse from a legal perspective. And this is the context.

So let's see. Here's a question I have. If it takes three things to kill somebody which one is the cause of death? So the defense's witness said that the death was caused by a collection of three things. That he had a bad heart he was on drugs which can change your breathing and breathing was the issue and the police officers put him in a position that restricted his breathing. Now legally that's homicide as I said. And legally it puts the last action as the cause. The last action was the police. So technically legally the way definitions work the way the law works the cop killed him. Doesn't mean it's illegal because he maybe didn't know it.

But the important thing here is that your common sense about this is a little different than how the law treats it and necessarily right? That doesn't mean anything's broken. My common sense goes like this. If it took all three of those things to kill him they were all the cause. I get that the last thing that happens always looks like the cause but that's an illusion. It required all three things. Or at least wait for it there's a reasonable doubt that he would have died without the first two things. Is there anybody who testified that if he did anybody testify that it's we could know he would have died short of having a heart problem and the drug problem? You kind of don't know. If you took those other two things away the drugs that affects your breathing the heart that affects your breathing and then he died because he couldn't breathe. I don't know. I feel like I get that one has to be the cause. It's just the last thing that happened. But our common sense says three things killed him. Because if you took away any of those one any one of the three he'd probably be alive right? If the police hadn't stopped him I think he'd be alive. If he didn't have a heart problem don't know but there's a good chance he'd be alive. If he hadn't done drugs don't know if it made a difference for sure but there's a good chance. So we're only talking about reasonable doubt right? That's pretty reasonable in the doubt category I would say. Especially when we know that tasing can actually kill you if you have a heart like George Floyd's. Actually I shouldn't say that that would be a little bit too much medical certainty but say somebody has a weak heart would be in trouble.

So let's see what else we got here. All right that's enough for that.

So my take on it is that the news will be pro so far the news is reporting this. The news is reporting that homicide has largely been demonstrated. What they don't tell you is what I just told you that that doesn't mean it's a crime. Watch how illegitimate the press is when they describe the homicide without telling you that's not illegal by itself. They won't tell you that. You will be led to believe that proving it was homicide which I believe has been proven and to my satisfaction anyway they're going to tell you that that's the same as murder by sort of just talking about it the same way. They won't say it directly. They'll just conflate murder with homicide until you can't tell the difference and you want to riot over it. That's where it's going.

Speaking of propaganda let me give you two sentences and you tell me which one of these is propaganda and which one of these is just an accurate statement. We'll take a hypothetical. Hypothetically let's say there was a congressperson who had been charged with something and there were two ways to describe this thing. They had been but not charged with let's say accused. They'll say there's a congressman who's merely been accused of something. No trial. He's been accused of something. And there are two ways to say it. One way goes like this. The congressman is accused of having sex with a minor. Here's the second way to say it and both of these will be true. The congressman has been accused of having sex with a 17 year old. Which one of those is propaganda and which one of those is just the news? Which one did CNN say? CNN always says sex with a minor right? And they're trying to trap you into saying wait a minute 17 is not so bad. Oh what did you say pedophile? It's a trap.

So somebody says the first one yeah. So when you see propaganda like that where the first thing that you say is the thing people remember. Now I think I saw Jake Tapper say he was accused of having sex with a minor and then clarified a 17 year old. Wouldn't it be better to say he was accused of having sex with a 17 year old who's technically a minor? Do those sound the same to you? Because one of them is trying to get a result and the other one is describing what happened. I would say and by the way if you have two ways to describe something and it's only an allegation you do have a social responsibility to use the description that doesn't make him look guilty because there's not even a charge much less a court case. We don't even have a victim and they're already talking about him like he's guilty without a victim meaning we don't know there's a real person yet if there ever is.

All right Nate Silver was hilarious in a tweet. You should be following Nate Silver. He does a better job of sticking with the