As the George Floyd murder trial winds down, a crucial decision faces Derek Chauvin's defense lawyers: whether to put Chauvin on the witness stand, breaking with convention in a bid to humanize the former Minneapolis policeman.
Trial experts said calling Chauvin would be the defense team's final decision, assessing the need only after other experts had testified about the cause of Floyd's death and police actions during the fatal arrest.
"I don't think he has a chance unless he testifies, and maybe not much then," said Robert Bennett, a civil rights lawyer who has sued the Minneapolis Police Department.
It is rare for defendants to take the stand in a criminal case because they face intense cross examination by prosecutors and risk undermining their case and credibility.
Prosecutors this week finished presenting two weeks of testimony that Floyd's death resulted from a lack of oxygen caused by Chauvin, who is white, pinning the 46-year-old Black man with a knee to his neck for more than nine minutes in May 2020.
Bystander video of the arrest was shared widely on social media, sparking protests in the United States and around the world over police brutality and racism.
The defense could finish presenting its evidence as early as Thursday. Putting Chauvin on the stand would allow jurors to see his face, which has been hidden a face mask due to COVID-19 protocols, and try to temper the image of a defendant who has come to personify police brutality. Chauvin's lawyers did not respond to a request for comment.
Chauvin, 45, has pleaded not guilty to murder and manslaughter charges, arguing that he was following the training he received during his 19 years on the force.
A use-of-force expert was among the first witnesses Chauvin's lawyer Eric Nelson called on Tuesday, and the expert said Chauvin's actions were justified.
Nelson has said in court filings that he could call more than a dozen medical experts, likely to focus on substances found in Floyd's body, such as the synthetic opioid fentanyl. Nelson has said Floyd's death was caused by a heart malfunction resulting from a drug overdose and other underlying health problems.
"They will try to buttress the claim that not only was he unpredictable but he died of some drug-related problem," said Jeffrey Frederick, a trial consultant.
A medical expert testifying for the defense on Wednesday said he believed that Floyd's death was the result of heart disease making his heart beat erratically.
Experts said the defense faced tough odds in convincing a jury to acquit Chauvin after prosecutors bolstered video evidence with testimony from senior police, eyewitnesses to Floyd's arrest and compelling medical experts.
"The prosecution has done a great job of piling up expert testimony of people ruling out fentanyl as the cause of death," said Roy Futterman, a director at the trial consulting firm DOAR.
CREATING REASONABLE DOUBT
The defense goal is create reasonable doubt in the minds of jurors, leading to an acquittal. Even one juror, however, refusing to vote in favor of a guilty verdict would lead to a deadlocked jury. The state could still try Chauvin again in that situation.
"What they are hoping for is one or two hold-outs," said Futterman, who noted that jurors have a history of siding with an accused police officer.
Calling Chauvin to testify would dramatically change the trial's dynamic, subjecting the former officer to an exhaustive cross examination and overshadowing expert testimony, trial experts said.
"The jury needs to get to know the guy," said Paul Applebaum, a civil rights attorney who has sued the Minneapolis Police Department. Nelson appeared to be laying the ground for Chauvin to testify with some of his questioning, he said.
Jurors will want to know what Chauvin was thinking during the arrest.
"In order to establish a relationship with the jury you have to let him speak in full paragraphs," said Joseph Friedberg, a Minnesota defense attorney. But he warned: "If Chauvin says anything that the jury interprets as false, they will convict him."