MINNEAPOLIS – Derek Chauvin said in court Thursday that he will not testify in his murder trial.
"I will invoke my Fifth Amendment privilege" to not risk making any self-incriminating statements in Hennepin County District Court, where the fired Minneapolis police officer is charged with killing George Floyd late last spring in Minneapolis.
Chauvin's declaration came during a series of questions from his attorney, Eric Nelson, and outside the presence of the jury.
Nelson and Chauvin were seated at the defense table as the defendant held a cordless microphone and had his voice heard for the first time on the record during the trial.
Chauvin agreed that he and Nelson have had many conversations about whether he would testify, including as recently as Wednesday night. Chauvin said he understood that any decision to testify was his alone and neither the state nor the court can equate silence with guilt.
Nelson reminded Chauvin that "the state would have broad latitude" should it have had the opportunity to cross-examine him as a witness in his own defense.
Judge Peter Cahill then reinforced the point about who decides. Asked by the judge this time whether this was his decision, Chauvin said, "It is, your honor."
Nelson also indicated that this would be the day the defense rests. Cahill has said it's his intention, once the defense rested, for the attorneys to make their closing arguments as soon as Monday before jurors are sequestered and deliberate whether Chauvin should be convicted of using excessive force in the killing of Floyd at 38th and Chicago on May 25.
On Wednesday, jurors heard from just one witness, a retired forensic pathologist who testified that the 46-year-old Floyd died of a cardiac arrest combined with drug use, and not a lack of oxygen as several prosecution witnesses contended in their testimony.
Dr. David Fowler also testified that the manner of death was "undetermined" due to a combination of factors — including police restraint and carbon monoxide poisoning from a nearby squad car — that could point in multiple directions. The Hennepin County Medical Examiner's Office ruled last year that the manner of death was homicide, an act caused by another person.
"Any of the sounds Mr. Floyd is making requires you to take air in … and out … ," Fowler said of bystander and police body camera videos showing Floyd pleading to breathe as three officers restrained him for what turned out to be more than 9 minutes. "You cannot make sound unless you're … moving air and your mouth is open."
Fowler, who recently retired after 17 years as the chief medical examiner for the state of Maryland, marked the defense's move into the cause of death phase of its case. Chauvin's attorney, Eric Nelson, has argued that Floyd likely died on May 25 of a drug overdose and pre-existing health problems, including heart disease and arteries that were clogged 75% and 90% in places.
Prosecutors have argued that Chauvin drained Floyd of oxygen when he knelt on his neck for more than 9 minutes as Floyd lay handcuffed stomach-down in the street with one officer kneeling on his buttocks and thigh area and another officer kneeling and holding onto his legs.
A lack of oxygen would impact the brain first, causing someone to become disoriented and speak incoherently, Fowler said. "Mr. Floyd goes from making clear statements … and then there's a period of about 45 seconds of silence but he's still moving … and there's a sudden relaxation" more consistent with cardiac arrest, he testified.
Fowler inadvertently opened the door for a surprising line of impromptu questioning by prosecutor Jerry Blackwell when he testified under cross-examination that Floyd experienced a "sudden cardiac arrest." The moment came about after Blackwell asked him twice about his testimony on "sudden death" while questioned by Nelson. Fowler denied using the phrase, and in doing so, introduced the time gap between cardiac arrest and death.
"Are you suggesting that though Mr. Floyd may have been in cardiac arrest there was a time when he may have been revived because he wasn't dead yet?" asked Blackwell.
"Immediate medical attention … may well reverse that process, yes," Fowler answered.
"Do you feel that Mr. Floyd should have been given immediate emergency attention to try to reverse cardiac arrest?" Blackwell asked.
"As a physician, I would agree," Fowler said.
"Are you critical of the fact that he wasn't given immediate emergency care when he went into cardiac arrest?" Blackwell asked.
"As a physician, I would agree," Fowler said.
Prosecutors previously told jurors that Chauvin knelt on Floyd and did not relent or provide medical attention even though Floyd was breathless and without a pulse for nearly five minutes.
Chauvin is charged with second-degree unintentional murder, third-degree murder and second-degree manslaughter in the killing of Floyd last spring. Three other fired officers who assisted in Floyd's arrest — J. Alexander Kueng, Thomas Lane and Tou Thao — are scheduled to be tried in August on charges of aiding and abetting murder and manslaughter. All four defendants are out on bond as their cases move forward.
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(Star Tribune staff writers Rochelle Olson and Chao Xiong contributed to this report.)
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