The Complexities of the Chauvin Trial

Writer and podcast host Coleman Hughes published a column in The Free Press in January entitled, "What Really Happened to George Floyd?" in which he analyzes a documentary called The Fall of Minneapolis, which has racked up more than 6 million views on YouTube and Rumble. The documentary makes the case that former Minneapolis police officer Derek Chauvin may have been wrongly convicted of murdering George Floyd in 2020. In his column, Hughes ultimately concluded that it's time for Americans to "consider the possibility that Chauvin was not a murderer, but a scapegoat."

Later in January, investigative journalist and former Reason staffer Radley Balko began publishing an extensive three-part rebuttal on his Substack The Watch, which he concluded earlier this month. It's entitled "The Retconning of George Floyd," and he takes apart errors and what he says are outright lies in the documentary. He also heavily criticizes Hughes and The Free Press for failing to consult experts or include research that he says could've helped them avoid serious mistakes.

Reason's Zach Weissmueller and Liz Wolfe hosted Hughes and Balko on the latest episode of Just Asking Questions. Balko argued that Hughes and The Free Press missed or misrepresented key facts about the killing of Floyd and Chauvin's trial. Hughes defended his skepticism of the felony murder verdict. They also discussed their opposing views of the protests and police reforms that followed Floyd's death.

Watch the full conversation on Reason's YouTube channel or on the Just Asking Questions podcast feed on Apple, Spotify, or your preferred podcatcher.

Sources referenced in this conversation:

1. "What Really Happened to George Floyd?" The Free Press
2. "The Retconning of George Floyd," The Watch
3. Minneapolis PD Use of Force Policies, The Law of Self Defense 
4. Autopsy of George Floyd
5. Minnesota Felony Murder in the Second Degree, Sec. 609.19 MN Statutes 
6. Police Executive Research Forum staffing
7. National violent crime rates, 2012–2022
8. 50 years of officer-involved shooting data, Peter Moskos
9. Department of Justice report on Minneapolis Police Department post–Floyd killing

 

This is a rush transcript. Please check all quotes against the audio for accuracy.

Zach Weissmueller: Who's right about the death of George Floyd? Just asking questions. And on this show we do ask many questions, but we also try to provide answers when we can, and hope to today. I'm Zach Weissmueller, senior producer for reason, and my co-host is Reason Associate Editor, Liz Wolef. Hey, Liz.

Liz Wolfe: Hey, Zach.

Weissmueller: Today, we're hosting a conversation between journalist Radley Balko and writer Coleman Hughes. Hughes published an article in The Free Press in January called, "What Really Happened to George Floyd?" in which he analyzes a documentary called The Fall of Minneapolis, which has racked up more than 6 million views. The documentary makes the case that police officer Derek Chauvin was wrongly convicted of Floyd's murder. Hughes ultimately concludes that it's time for Americans to consider the possibility that Chauvin was not a murderer, but a scapegoat. Balko disagreed strongly and began publishing an extensive three-part rebuttal on his Substack "The Watch". A series called the retconning of George Floyd dismantles the purported errors and outright lies in the documentary, and also heavily criticizes Coleman and The Free Press for failing to consult with experts or include research that Balko says could have helped them avoid serious mistakes.

I'm grateful to both of them for agreeing to come on our show. I am fans of both of their work, and glad that we're here to have what may at times be a difficult conversation, but I hope it will also be a productive one. Radley, let's start with you. This documentary dropped in November 2023, but it seems to be Coleman's column in particular that really provoked you to respond. Why?

Radley Balko: Yeah. Well, I think it's because The Free Press is considered sort of a skeptical non-partisan publication, or at least it positions itself that way. And I don't believe Coleman and I have ever met personally, but we have a lot of colleagues and friends in common who speak highly of him. And I had watched this documentary gain a lot of momentum on the far right and among police advocates, law enforcement advocates. And it wasn't until it started gaining momentum in right of center, libertarian, centrist circles… I know the Fifth Column Podcast talked about it in slightly skeptical, but mostly in a way of endorsing a lot of its claims, or at least giving credibility to them. And then Coleman, I think, really pushed it into the mainstream. And a lot of people who have read me for a long time started sending me Coleman's column and asking if I had a response to it. When the series went up, Coleman's response and Barry Weiss' response in The Free Press was to basically to invite me onto their podcast to discuss it.

And I agreed to do this podcast because I have history with Reason. I will say though, the response to someone pointing out factual errors and errors of omission and publishing something that's, I think, deeply misleading is not to debate and discuss those issues. It's to either issue a correction or retraction, or to explain why you don't think a retraction or correction is necessary. And so far, the first installment of the series went up well over a month ago, I think the last one was 10, 12 days ago, and there hasn't been a response. So I'm happy to discuss policing issues. I debate people who disagree with me all the time. I'm not really interested in having those discussions in the absence of good faith. And I think to establish good faith, or as a demonstration of good faith, I think I need The Free Press or Coleman to address what I think are clear errors in the column Before we go any further. So there's the maximal restraint technique problems in Coleman's column that amplify what I think are clear errors in the documentary.

There are mistakes about positional asphyxia, the idea that that because it's not mentioned in the original autopsy report, it couldn't have been the cause of death, which is not true at all. Coleman really builds up Andrew Baker, the medical examiner who performed the autopsy on George Floyd, but he never mentions that Baker said that Floyd samples was homicide and testified for the prosecution at Derek Chauvin's trial. When Coleman talks about Bob Kroll, the former union head, and his wife, Liz Collin, who is the narrator and produced the documentary, he talks about how they were intensively canceled but doesn't mention Kroll's long history of abuse and allegations of racism and abuse. I think you could very plausibly argue that that's an error of omission because Kroll was in a policymaking position. He was head of the Minneapolis Police Union. He formulated a lot of the policies that allowed Minneapolis police officers to have bad apples, the worst apples to continue to abuse people without consequence. It was the union negotiated contract that allowed for a lot of those policies.

Then finally, he talks about Floyd's health. We've had exchanges on Twitter about this. He claims he'd never wrote that Floyd died of an overdose or some sort of heart condition. He certainly implies that those contributed to his death, or those might have contributed to his death. And we know, and we can talk to addiction experts and emergency medical technicians, they'll tell you that the symptoms that Floyd was exhibiting or the way he was behaving in the video that we see are not consistent with somebody who's dying of an overdose or in the midst of an opioid overdose.

You basically become lethargic and sleepy, and you basically just kind of drift off. Floyd was animated. He was agitated. And multiple people who write about addiction have said that there's no evidence that that Floyd was in the midst of an overdose. Coleman also writes that it had fatal levels of fentanyl system, and this is a claim we've seen often from the right and from law enforcement sources. And it came out in trial that is levels of fentanyl were actually below the average level of people who were brought in for DWI charges, for driving while under the influence of opioids in non-fatal cases. So his fentanyl levels were lower than those cases. And there's also evidence that the fentanyl that was in his system was metabolized fentanyl. When you die of a drug overdose, it's shortly after you take the opioid, the fatal amount. If most of the opioid in your system has been metabolized, that's a good sign that you aren't in the midst of an overdose. In his ratio of fentanyl to norefentanyl, which is the metabolized form was one point something, I think the average fatality, is over nine. So he had high levels of fentanyl compared to someone who has never taken opioids, but people build up a resistance to opioids when they take them regularly. And so there is no real fatal level of opioids. Jacob Sullum has written a lot about this for a reason, about people who take high dose opioids for chronic pain. Some of them take 20, 30 pills a day, an amount that would pretty much instantly kill any us, but because they built up a resistance… And we know that Floyd had a lifelong drug problem. So I think these are the issues that I think need to be addressed, and I hope that Coleman and The Free Press will address them directly.

We were talking before Coleman came on here. I've been in journalism for 20 years. I've made a lot of mistakes over the course of my career, and I've found that when you acknowledge them and correct them, there's a hesitancy, I think to run corrections because people think it erodes their credibility, but I think it actually adds to your credibility when you admit to mistakes because we're all human. We all make mistakes. But so far I think the reaction, I think has been a little bit disappointing.

Wolfe: That makes a lot of sense. I really appreciate you laying out the case, Radley. You laid it out very well in the three-part series, but I also think that this is a pretty concise version for those who aren't going to read the entire thing. Coleman, is there anything that Radley has changed your mind about?

Coleman Hughes: Well, I want to first address some of the things that were said there, if you don't mind, at least in the abstract.

Maybe we can later go point by point and maybe in more detail, but broadly speaking, The Free Press piece that I wrote was intended to be op-ed length, ended up being a little over 2000 words. And of necessity, I triaged information. Radley's response has been something like 30,000 words if you combine everything, and I think that should be the first signal for people that what you're talking about here aren't simple factual matters, right? A simple factual error. So for example, Radley made a minor and insignificant error just by getting my age wrong. It's correctable in a single sentence. The disagreements that we have here are generally matters of actual debate. And so I'm glad that we're doing this, but the fact that The Free Press hasn't issued a correction is not because we are hesitant to admit simple errors here. Radley has done a kind of masterpiece of misreading of my Free Press piece. And I really encourage everyone to just actually read it because it's not very long. And there are just many claims and interpretations of it that make very little sense to me and things that I absolutely don't claim and never wrote. So for example, the idea that Floyd died of an overdose, you'll find that just nowhere in my piece.

Wolfe: But there are two suggestions. I want to engage with this with some depth. There are two suggestions, I believe, in the text of your piece, Coleman, that do mention possible fentanyl overdose, which I don't know, that sure seems like a suggestion that that is the explanation or is a possible explanation.

Hughes: So let me back up. OK? In a normal debate each side has a symmetric task, right? I try to summon more evidence than you that say, "Guns are good." You try to summon more evidence than me that "Guns are bad, right?" And to bring up remote possibilities constitutes a kind of grotesque just asking questions routine, not to name check the show.

But in the context of a criminal trial, the task assigned to each side is highly asymmetric on purpose, right? It's not enough for the majority of evidence to indicate guilt, and it's not even enough for guilt to be highly and substantially more likely to be true because the clear and convincing evidence standard. It has to be the case that there's no other reasonable explanation that can come from the evidence presented at trial. That's the key concept of reasonable doubt. Now, when you make the debate asymmetric in that way, what would amount to a kind of "just asking questions" routine in another context becomes a perfectly legitimate line of thinking.

Now, I want to actually zero in on what I said about fentanyl because I did not use the word overdose, I don't think anywhere in the column. What I said is that he had a potentially lethal dose. Now, the average dose found in someone that dies of fentanyl is 25 nanograms per milliliter. Floyd was found with 11, and overdose cases have been seen as lowest three. So he's around the 25th percentile of what you would expect if it were an overdose death. So to call it a fatal dose would suggest that anyone would die of it. That's why I didn't call it a fatal dose. But to call it a potentially fatal dose, it's a statement of fact. Now, in the context of what I was actually saying, and you can go back and read the column, I say that it's not unreasonable.

I'm always speaking and talking through the language of reasonable doubt, not through from the point of view of giving a definite version of events, right? So I say that it's not unreasonable to think that Chauvin killed him, right? I actually say this in the column. Where Radley takes me to be saying that Chauvin's actions definitely didn't kill him, in fact, I say the opposite. I say it's not unreasonable to think that, but it's also not unreasonable to think that there's another explanation of events here. And overdose was not actually the claim there. The claim was that it's not unreasonable to think that he died of a mix of pre-existing conditions, drugs in his system, and adrenaline caused by the arrest, which was, when push to shove, that was Andrew Baker's theory of the death. And so overdose appears nowhere. The idea that he could not possibly have died of positional asphyxia because it didn't appear in the autopsy, again, just appears nowhere in my column.

In fact, I say it's not unreasonable to think he did die of Chauvin's actions. That's almost an exact quote. And so there's a kind of masterpiece of misreading of my column here, and I think not understanding that I'm looking at it from a reasonable doubt perspective rather than a normal debate is at the core of that misreading.

Wolfe: Radley, how do you look at that?

Balko: This is kind of the way Coleman has reacted to this entire exchange from the first post that I put up. He is literally just asking questions. That's what the whole column is. It's designed to sow doubt about what actually happened and to make people think that Chauvin was somehow railroaded. But there are clear factual errors.

For example, he says that the maximal restraint technique was indeed… Let me get the exact quote here. "According to the documentary and documents I have reviewed, the move was indeed a standard hold called the maximal restraint technique, which the MPD trained its officers to use in situations where handcuffed subjects are combative and still pose a threat to themselves," goes on and on and on. And basically what he's saying is the technique that Chauvin is using on Floyd is the MRT, the maximal restraint technique that is taught in the NPD manual.

Well, he doesn't link to the version of the manual that was in effect at the time of Floyd's death. And in that manual, if you look it up, it does talk about the maximal restraint technique, but it says that it's only to be used in order to administer a device called a hobble, which is basically a way of incapacitating people, after which they're immediately supposed to roll the suspect over on their side into what's called a recovery position. And the reason for that is exactly what happened to George Floyd, positional asphyxia. When someone is handcuffed and on their stomach, it's very easy to restrict their diaphragm in a way that does not allow them to breathe properly, so they can't inhale air deeply enough into the lungs for the body to exchange oxygen for carbon dioxide. What happens is your oxygen levels then plummet and your carbon dioxide levels soar, which becomes fatal pretty quickly.

And this is exactly what the pulmonologist who testified for the state, and other pulmonologists since who've reviewed the evidence that happened to Floyd. What Chauvin did to Floyd is not MRT. And Chauvin pretty definitively says that after he reviewed the documents and the evidence, it clearly was. It wasn't. And if he had read, or if he had provided a link to the manual that he claims to have read and summarized in his column, I think readers would've seen pretty clearly that it wasn't either. It was claimed that that's what Chauvin was doing in the documentary. But in fact, in his appeal, even Chauvin's own attorneys abandoned this argument that Chauvin was trained on it, that basically Chauvin was trained on what we see in the video. In their appeal, they basically say that this technique was trained in general, and therefore, what Chauvin did to Floyd was objectively reasonable, but they could not show that Chauvin was actually trained on this particular technique.

Now, I'd argue, and I think most reasonable people who looked at the policy would argue there's no evidence at all that this is what the MPD trained its officers to do what Chauvin did to Floyd. They train them to use a technique where you put a knee on the side of the neck. You put most of your weight on your foot, but you do that to keep the person in place just long enough to administer this device called a hobble, after which you're supposed to roll the suspect over to their side so they can breathe. That is not what we see in the video. What we see in the video, Floyd is held in that position for nine minutes, including almost three minutes after he loses consciousness. That isn't taught at MPD, it isn't taught at any police department in the country, and that is where Chauvin commits the actual crime here.

Weissmueller: Yeah. Radley, I think that this is central to deciding this question and something that we need to catch our listening and viewing audience up on a little bit. When you're talking about this debate over maximum restraint technique, which police call MRT, this is really what the case is decided on. I kind of see the entire fentanyl issue is a little bit of a red herring. Maybe Coleman disagrees because the fact is whatever was contributing to his inability to breathe, whether it was simply having someone exert pressure on his back, or that in combination with whatever was in his system, if Chauvin was inappropriately restraining him in contradiction to the way he was trained, then that seems like the jury reached the proper verdict. And so we need to dig into that question. And I think the best way to do that is, unfortunately, to review some of the footage. I've watched this horrible tape a few times in preparation for this, and I don't like to play it, but I want to play just a little bit of it and go through point by point-

Hughes: Can I respond to what Radley is saying here?

Weissmueller: Sure. Go ahead and respond, and then we're going to look in detail at what actually transpired here. I'd like to get your thoughts on whether this technique was properly applied or not, Coleman.

Hughes: OK, because Radley's argument has confused me from the start here. There's one argument that what Chauvin is doing just isn't MRT at all. If it's any train technique, it's some other technique, right? And then there's a different incompatible argument that it is MRT, but it's improper MRT. So for example, at many points in your part one, you suggest that it's just not MRT at all, yet the rest of your argument is that it didn't follow the guidelines of MRT properly, i.e., too much pressure, it wasn't indicated because of the situation, Floyd wasn't a threat, these are some of your arguments, and so forth, all of which would be irrelevant if it's not MRT to begin with. In other words, it can't be bad MRT, and also not MRT. I actually don't know which argument Radley's making.

Weissmueller: Let's look at this.

Balko: Those things aren't contradictory at all. It is not.

Weissmueller: Let's look side by side. This is the argument Radley makes in his piece, is that this slide on the right, which is from the training, is supposedly what Chauvin believed he was supposed to do and was not admitted in trial. But what Radley points out is that when you zoom in on these pictures, you see that the officer who's restraining the suspect here has his weight on the ball of his foot.

Hughes: But you would acknowledge that this is MRT, right?

Balko: No, it isn't.

Hughes: Sorry.

Balko: It isn't.

Hughes: This is not MRT because you call it the MRT training slide in your…

Balko: No. What Chauvin is doing to Floyd is not MRT.

Hughes: OK. Sorry. I'm talking about the training slide right now. The training slide is MRT or is an element of MRT. Do you agree with that, or no?

Balko: Yes. The MPD has acknowledged that that slide is part of the MRT training, correct? It also says on the slide, very explicitly, that you're supposed to roll the suspect over into the recovery position as soon as possible. The policy manual also says the purpose of MRT is to administer a hobble….It's supposed to be temporary. It's not something you administer for 9 minutes.

Hughes: I understand that. But here, OK, can we zoom in on the second picture on Chauvin's?

Weissmueller: Yes.

Hughes: So the argument is that he has more weight than the picture in the slide, and therefore it's not MRT, or rather it's improper MRT, right?

Weissmueller: All of his weight appears to be on the neck. And also, Radley is saying that this is an intermediate step to getting them in a recovery position and applying a restraining device called a hobble, which never happened. Therefore, this is negligent, criminally negligent behavior.

Hughes: Yeah. OK. So now, again, in the context of reasonable doubt, the question is, is there another reasonable explanation? Now, I'm not going to say that Radley's is not a reasonable explanation, but that's not the burden of the defense. The burden of the defense is to show that there are other reasonable explanations. So as we know from the transcript, the moment they get George Floyd on the ground, Chauvin says to the partner, or "Do you have a hobble?" Tou Thao goes to get the hobble, which he can't initially find. It's Thomas Lane's hobble. And then as he's looking for the hobble, Lane or someone else realizes that Floyd has blood on his mouth and needs EMS, so they call a code two for EMS. They hike it up to code three. Eventually, Thao finds the hobble. But now that they have EMS coming, Chauvin and Tou decide that actually, we're not going to put on the hobble because it takes about 2 minutes to get on roughly.

And when you have EMS coming, hiked up to code three, you reasonably assume EMS is 3 minutes away. We know that from the trial. And you'd have to take the hobble off in order to apply medical treatment to someone. You can't really put someone easily on a stretcher on their back in the hobble. So the Occam's razor explanation of the decision to, initially the decision to use the hobble, and then the reversal, is that they now had EMS coming. So they were going to hold for EMS. And then obviously, what happened, which is not possible to see without 20/20 hindsight, is that there was, as what two different, at least one of the firefighter witnesses for the prosecution agreed, was an unheard of delay, almost unique and unheard of delay in fire's ability to get there because of a miscommunication with dispatch. And so that's one of the reasons why…. That's why they didn't apply the hobble, right? Or rather, that is certainly a reasonable explanation for why they didn't apply the hobble.

Weissmueller: OK. But Coleman, let me play just a little bit of the video because that does not appear to be what happens in the video.

[Video plays]

Hughes: Anyone can look up the transcript and confirm that this is what happened. Chauvin says, "Do you have a hobble?" Tou Thao goes to get it. But by the time he gets it, the situation has changed because now they've decided to call EMS, and EMS is on the way. And then Tou asks again, "Well, do you need the hobble now?" And they say, "No, we've got EMS coming." Essentially, that's-

Balko: So at what point is it OK to continue to put your knee on George Floyd's back after he's gone limp? After one of your fellow officers tells you he can't find a pulse? After bystanders are saying he can't breathe anymore? And then Chauvin continues to put weight on his back for another 3 minutes after that. Where's the confusion there? What's the Occam's razor explanation for continuing to put your full weight on a man who's slipped to unconsciousness?

Hughes: So my point is that there are multiple explanations. One explanation would be that he's a psychopath, right? In a criminal trial, however, the presence of other reasonable explanations constitutes reasonable doubt. So one reasonable explanation is that they were trained, as Johnny Marshall testified, who is the prosecution star witness on use of force MPD policy, that there are situations where you hold someone in the prone restraint, prone body weight restraint, and do not move them to the side recovery position until the scene is code four, meaning everything's safe and everything under control, the scene is safe.

Balko: It's hard to resist when you're unconscious. How does that mean the scene isn't safe?

Hughes: The code four does not merely include…a person not resisting, but also consists in a scene being secure and safe. So when you have an angry hostile crowd, they're taught that that's not necessarily code four. And as further evidence of that, when EMS, rather, when paramedics arrived before the fire truck…. The paramedics arrived whenever it was around 8:26, 8:27. They had two options. They could stay there and immediately start medical work on Floyd, or they can do, and we know this from trial, they can do what's called a load and go, or they get him in the ambulance, and then move the ambulance somewhere safe. They chose to do a load and go because they perceived that the scene was not code four because of the angry crowd.

In other words, if the paramedics perceived that it was not code four and chose to do a load and go, delaying giving medical aid to Floyd, then certainly the cops at the scene perceived that it wasn't code four. And their training is that there are situations where they can hold someone in prone restraint and not move to the side recovery until the scene is code four. So that is a reasonable explanation, not the only one. But in the context of a criminal trial, the presence of such a reasonable explanation can be itself exculpatory.

Balko: The key word there is reasonable. Literally, the hostility of the crowd was people telling them that you are killing this man, trying to tell them, trying to warn them that what they were doing to Floyd was dangerous. As far as I know, nobody from the crowd struck any of the officers, threw anything at the officers, [they] were literally telling them that what they were doing was killing George Floyd. If that's reason to continue to use the amount of force you are using, then just about any amount of force is going to be reasonable. Chauvin, literally, ignored warnings from his fellow officers. He ignored warning from bystanders. He ignored warnings from Floyd himself. I don't think you can say that because people saw what was happening and were angry about it, that gives you an excuse to continue doing what you're doing.

Hughes: So it's not a matter of what appears reasonable to you or me, it's a matter of whether he was doing something within training. So I have a few points to make here. One is I don't think you can say it was unreasonable to worry about the safety of the scene when the paramedics who came decided on a load-and-go and delayed treatment because they perceived the scene-

Wolfe: That was after…. But hold on, there's a sequence of events that I think matters here. That's after Chauvin had kept his weight on George Floyd's back for quite a long period of time, right? The paramedics' assessment of the situation in its wholeness and its fullness is different than how the scene was merely four minutes prior. How do you factor that into it? The paramedics' assessment shouldn't be gospel here.

Hughes: Well, the paramedics' assessment, they're coming on a scene. They're seeing that there's a hostile, angry crowd-

Wolfe: After. But the crowd was seemingly, without having been there, seemingly less hostile earlier in the act before it had become so clear that Chauvin-

Hughes: Two minutes, right? We're talking about a 3-minute difference.

Wolfe: Three minutes.

Hughes: Yeah, about three minutes.

Wolfe: No, three very consequential minutes, right? The crowd was-

Hughes: The crowd was crescendoing throughout this, and they peak when around the ambulance gets there. But again-

Wolfe: The paramedics' assessment of the safety of the scene might have been different than the assessment of the safety of the scene 3 minutes prior, right?

Weissmueller: They seem to be peaking when they notice that he has gone limp. And that's one of the key questions that Radley raises in his piece that I'd like you to answer just directly, which is that you did not mention in the piece that Chauvin kept kneeling on him after he went limp and had no pulse. Isn't that a pretty crucial piece of information?

Hughes: OK. There are four different arguments floating here [that] I think I have to address. So that one right there, again, Mercil…. It's not a matter of what you or I think looks reasonable. We're talking about putting someone in prison for murder for an unlawful use of force. So it's a matter of whether they were authorized and trained to do certain things. And Mercil testified that they're trained that there are situations where you can hold someone you've just made unconscious even after they're unconscious. This is what they're trained, that you can continue to hold someone in certain situations even after they're unconscious.

And it's possible there's a reasonable explanation where they're also trained to worry that someone who has just gone unconscious later comes back and starts fighting twice as hard. And this was all in the trial, this is all in their training….By the way, they're also trained that if you're talking, you're breathing. I'm not saying that this is true. I'm not saying that you or I believe this. I'm saying that this is what they were trained on.

Balko: That's a common myth in policing, but that's not what they're trained on….

Hughes: The defense asked Johnny Mercil, "Have you been trained or do you train that if you're talking, you're breathing?" And he said, "Yes."

Balko: You're taking deep hypotheticals….

Hughes: No, these are not deep hypotheticals….

Balko: "We don't train neck restraints with officers in service, and as far as I know, we never have." That's a direct quote from Mercil. You're paraphrasing Mercil. When asked, "You should use the least amount of force necessary to meet your goals. You can use a lower level of force to meet your objectives at safer and better"-

Hughes: You're quoting from a different-

Balko: He specifically said that what Chauvin did to Floyd is not taught by MPD. He explicitly said that.

Hughes: Yeah, yeah, he said a lot of things. He also said that a knee on the neck is something that happens in use of force and is not unauthorized. That's a double negative. I was quoting from a different part of Mercil's where he was asked directly-

Balko: You're quoting from a question the defense posed in the context of hypothetical deliberately to get him to say the kinds of things that you're quoting him from now when he was asked directly-

Hughes: No, it wasn't a hypothetical…it was a simple question, "Do you teach or train, or are you trained that if you're talking, you can breathe?" He said-

Balko: When he was asked specifically about what Chauvin did to Floyd, he said over and over that it was not trained and that it was excessive force.

Hughes: Oh, and by the way, and Tou Thao also said in his BCA, I don't know if this is called the position or whatever, that, "Yes, we're taught, if you can talk, you can breathe." I'm not saying this is good training, but that's part of my point is that if police officers are trained on all of these various things that you can hold someone in prone and not put them inside recovery position until the scene is code four, and that code four consists of an angry and potentially building crowd. And again, we can't judge in 20/20 hindsight, you have to understand that, you have to allow for their worry that a crowd is building, and it in fact was building.

Wolfe: I want to cut through to a slightly different issue. I want to go to the positional asphyxia point in a moment, and Zach will take us there. But one thing that keeps coming to mind as you guys both talk is, Coleman, your description of your piece and your assessment of the facts seems to really be quite centered around the idea of whether or not this trial was conducted fairly.

But the other component to this, which I think is important to consider here, is whether or not The Fall of Minneapolis was a convincing piece of journalism because it's not just about the facts at hand in the trial, it's also about whether The Fall of Minneapolis was good. Because at least my interpretation of your piece, and please correct me if I'm wrong, was maybe not fawning of the documentary, The Fall of Minneapolis, but certainly appreciative, certainly greeting it in a positive light, receiving it favorably. Whereas to me, it wasn't a very convincing piece of journalism in part because of glaring conflicts of interest and glaring omissions. How do you reconcile that component of your piece?

Hughes: I'm not going to defend the documentary. I didn't make the documentary. The documentary provoked my Free Press piece, but it was not the evidentiary basis for it. My claims are not [inaudible 00:38:40] it's claims.

Balko: You don't cite anything other than the documentary.

Wolfe: You cite a bunch of different complaints.

Hughes: What do you mean I don't cite anything other than the documentary? How many hyperlinks are there? There are dozens.

Balko: OK, but you didn't consult with any outside experts, any specialists. It's all based on claims. You actually don't make any claims that aren't also made in the documentary.

Hughes: That's definitely not true. I definitely make claims that aren't made in the documentary, several.

Wolfe: Yeah. Well, maybe the better way to handle that is, Coleman, which forensic analysis, … which forensic pathologists, which people who weren't used in the documentary did you consult with? And did you find anything over the course of your reporting that really contradicted some of the narrative presented in the documentary?

Hughes: Look, I watched the documentary. I've been paying attention to this case since 2020. The documentary provoked me writing the piece, but it was probably 5 percent of my research for the piece…in terms of my time spent. I talked to lawyers in particular, I didn't talk to forensic pathologists, which I understand Balko faults me for. But most of it was reading and calls with lawyers, making sure that I understand the legal and criminal law aspects of it.

Wolfe: Did you find anything in the course of your research that cast doubt on anything that you'd seen in The Fall of Minneapolis? Was there anything that left you scratching your head being like, "Well, that is different than what they said. I totally disagree with their framing of that"?

Hughes: There were definitely witnesses that seemed… There were some sort of claims about the FBI's involvement that I thought were strangely conspiratorial and suggestive and so forth. But my intention was not to do a review of the documentary. I think the nicest thing, if you want to call it that, I said about it was that it threw doubt on two claims, namely that Chauvin committed felony assault, which is one of the elements of felony murder, and that he caused Floyd's death, which the documentary did, however imperfectly….I don't doubt that there were many misleading witnesses, misleading statements. I would have to do a kind of critique of the documentary separately to parse out my disagreements, but I don't remember off the top of my head everything.

Wolfe: The other thing that I did want to ask just really fast because I do think a casual reader would be forgiven for thinking that you somewhat endorse some of the conclusions come to you and the quality of journalism done by The Fall of Minneapolis. One thing that struck me as a really glaring omission from your piece was your description of Liz Collin and Bob Kroll, her husband. Liz Collin, the producer, played a massive role in making this documentary, and the fact that there wasn't really disclosure of her relationship with Bob Kroll, her husband, who headed up the police union in Minneapolis, and who also had a pretty stunning record of disciplinary reports as a police officer, including many, many allegations of improper treatment of people that he interacted with.

How could you not represent that? Because at least… I'm obviously a libertarian, I'm biased to be against public sector unions, but that conflict of interest seems really relevant.

Hughes: Well, the piece was about Chauvin's trial, primarily, and as it was provoked by the documentary, I described the producer and the director of it. And again, it was a 2,000-word piece, I gave a cursory explanation of who I understood them to be, and I don't think I had to go into a deep dive on who Bob Kroll was for the reader to get the… Again, the thesis of my essay was that Chauvin was falsely convicted.

Wolfe: There is a paragraph about Collin and Kroll, specifically Collin, being pushed out of her job as a local news anchor and there being a public cancellation of this couple. And you literally say here-

Hughes: That's because she was the producer or director of the documentary. Had Bob Kroll been listed, I would've done something on him too.

Wolfe: To quote directly from your piece, "Both Kroll and Collin received an intense cancellation, including a protest outside their home, which led WCCO to push Collin out of her anchoring job, and eventually led to her leaving WCCO and joining Alpha News." OK, I'm sorry, but this is a portion, you're already devoting a significant chunk of airtime to this. And at least to me, I would feel misled if I got all the way through this piece and didn't get a sense of the fact that Bob Kroll has quite a record. In addition to being the police union leader, he also has a pretty significant record and lots of complaints against him, including several lawsuits.

Hughes: OK. Well, I consider that a difference between us because if I was reading a piece titled what mine was titled, "What Really Happened to George Floyd," I would not feel misled that it didn't go on a side quest about Bob Kroll.

Wolfe: But this is not a side quest; this is materially relevant to the quality of journalism produced because you simply have to disclose these types of relationships. And this is not a simple cancellation….I am as anti-cancellation as many people, you know that in our sort of corner. And to me, the way that this paragraph read was that Collin and Kroll were canceled for the heresy of possibly examining a revisionist narrative about George Floyd, as opposed to the fact that Kroll, he's a political lightning rod in Minneapolis.

Hughes: So I include the fact that he was head of the police union, right?

Wolfe: Yeah.

Hughes: So does that not reveal the conflict of interest right there? You would already understand there that he's a cop, he may have a pro-cop bias.

Balko: But you say cancellation, which it certainly implies that he was removed from his position for things that he said. And what actually happened was there was a groundswell for him to be removed because he was in an actual policy making position. He was a guy with a long disciplinary record, including record of abuse of force and allegations of racism. And he was in a position inside of the union where he was negotiating the very policies, the training policies that we're talking about here. So to say he was canceled implies he was attacked for his free speech; he was actually attacked for his record.

Hughes: Were those allegations of racism proven?

Balko: Well, there are lots and lots of them. But part of the problem, as I think you probably know if you read the DOJ report, is that there was a history of MPD of not holding officers accountable, including not even investigating allegations. But yeah, the city settled several lawsuits involving use of force against him, in which he had misused force.

Wolfe: Yeah, I'm more involved in the misuse of force allegations than the, I guess, white-power motorcycle-gang allegations. I'm more interested in the actual material harms he might have done to victims, including the settlements. But all of these things just seem like an easy thing to hyperlink out or an easy thing to add a sentence about because, I don't know, I could see why a wife of somebody who's in that position would want to make an exculpatory documentary over it. Maybe that's me being overly suspicious or overly cynical, but that conflict of interest just seems so important.

Weissmueller: I'll just say that on this question, I am more on Coleman's side. I feel like I got a sense of who Kroll was, and it wasn't as central to me as the argument he was making. But the points that you're raising about the similarity of the argument made by the documentary and made by Coleman, what I found persuasive about Radley's rebuttal to this was that both your argument and the documentary were a bit asymmetrical in terms of presenting the extent of training that Derek Chauvin likely was exposed to.

And so you're raising these questions of like, could there have been other contributing factors to Floyd's death? Was there confusion about what he was supposed to do in that situation? But then Radley goes into great detail about this issue of positional asphyxia, which apparently is a well-known problem among police departments. He embeds a 2013 NYPD training video, which I want to play a little bit of just so our viewers can get a sense of what the mainstream theory is as to why George Floyd died in that position. Whether or not Derek Chauvin's knee was on his neck or between his shoulder blades, it's more about the position that he was put in for several minutes. So let me play a little bit of that video, and then I'd like to get you to respond to the idea that you left this out of the argument.

[VIDEO]

Weissmueller: So that kind of seems like the most straightforward explanation as to what happened here, and that was from more than 20 years ago, implying that this is a well-known problem among police departments. Isn't that fairly damning of Chauvin's behavior, and why was that not included in your argument?

Hughes: So in my argument, I'll reiterate here, I said, it's not unreasonable to think that Chauvin's actions caused the death of Floyd…or rather caused Floyd's labored breathing. That's close to an exact quote from my piece, I said it's not unreasonable. And the reason I said that is because it's not the defense's burden to disprove that positional asphyxia killed him, it's the prosecution's burden to say that there is no other reasonable explanation other than explanations that implicate Chauvin's actions.

Now I'm going to give you a reasonable explanation that doesn't implicate physical pressure from Chauvin onto Floyd, and that would be Dr. Andrew Baker's explanation for his death. Now, before I get to that, let me just deal with the manner of death vs. cause of death issue. So, Radley, you fault me for not mentioning that the manner of death Dr. Baker found was homicide and rather only talking about the cause of death.

And you say in your piece, I think, that the manner of death is a legal determination, and cause of death is medical. Baker actually says the opposite twice in his testimony, but you may be using those words differently, so I assume you're using those words differently than he is. But what Baker meant to convey by that is saying manner of death is irrelevant to the legal determination of homicide. He actually says they belong to two different worlds entirely.

Cause of death is entirely relevant because it's an element of the crime. In order for Chauvin to be convicted, Chauvin's actions had to be not just a but for a cause, but according to the jury instructions, a substantial cause, which is a somewhat higher bar. And Baker's explanation of cause of death, which he explained multiple times in his testimony, was that when you combined Floyd's preexisting conditions, 90 percent constricting of one artery, 75 percent constricting of another, you combine his already weakened system to begin with, with the adrenaline caused by the arrest, his heart and lungs stopped working.

So that explanation does not include physical pressure from Chauvin as a but for or a substantial cause of his death. That is also a reasonable explanation of what killed Floyd. So in the context of a criminal trial that is exculpatory, or ought to be.

Balko: That isn't what he says. What he says under cause of death is, "That it was cardiopulmonary arrest. His heart and lungs stopped working-"

Hughes: I'm talking about his testimony when he elaborated.

Balko: "… during law enforcement subdural restraint and neck compression." He talks about restraint and neck compression in the cause of death in the actual autopsy report. Also, I wanted to bring this up earlier, I do think it's deeply misleading to talk about Baker's autopsy as the only complete autopsy to contrast it to the one done by the medical examiner hired by Floyd's family, which I agree was flawed.

But then not to include in your piece that Baker himself determined that…the manner of death was homicide and that he testified for the prosecution. Neither of those things appear in your piece, you build him up as the reasonable, sensible antidote to public hysteria about Derek Chauvin. But you don't mention that he did say it was a homicide, and he did testify for the prosecution.

Hughes: Baker explained in his testimony, as I said, that manner of death is irrelevant to the legal determination of homicide. He said they belong to, "two different worlds entirely." OK. So whereas the reason I talked about cause of death and didn't include manner of death is because cause of death is literally in elements of the crime, that's what's germane here. And when you-

Balko: You also say that positional asphyxia is not mentioned in the autopsy report, which pretty strongly suggests that you are arguing that positional asphyxia was not a potential cause of death here.

Hughes: No, that's not an accurate inference at all.

Balko: Why would you say it wasn't mentioned in the autopsy report if you didn't want people to think it wasn't a possible cause of death?

Hughes: OK, why would I want them to draw that inference? But then elsewhere saying in my essay, it's not unreasonable to think that Chauvin caused his labor breathing. You're failing to understand, again, that my whole piece is from the perspective of reasonable doubt. I'm not claiming definitively that I know what killed Floyd, I'm not claiming to have a truth here. I'm claiming that in the context of a criminal trial, the presence of a reasonable explanation is itself exculpatory because of the asymmetric task assigned to the prosecution and defense.

Wolfe: Your piece is a counternarrative piece though, right? The entire concept of it, as I see it, is to challenge two components of the traditional media narrative about George Floyd's death. I feel like you're doing a little bit of this, throwing your hands up, plausible deniability type thing.

Hughes: No, no, can I clarify this?

Wolfe: Yeah, please.

Hughes: Most people who have been to law school who read my piece, understood it completely differently than how many others understood it because they're trained to think in terms of reasonable doubt. So when I say things like, "It's not unreasonable that Chauvin caused his breathing, but it's also not unreasonable that his breathing was caused by this," people who are sensitized to think in terms of reasonable doubt understand exactly what I'm saying.

I'm not actually definitively ruling between these two things, but the presence of multiple reasonable explanations is itself exculpatory in our system. Whereas other people take me to be arguing for the second of those two interpretations as a definitive truth, which is not the defense's burden.

Balko: To say most people who went to law school read your piece differently, I talked to a lot of lawyers who were not at all happy about your column.

Hughes: They may not have been, but they certainly wouldn't fault me for coming from a perspective of reasonable doubt.

Wolfe: The other thing that's a little bit ironic here is that I don't think The Free Press exactly brands itself as the publication only to be read by those who have attended law school and successfully received their J.D., right?

Hughes: That's not what I'm arguing.

Wolfe: I'm not saying that it is, but I am saying that you're writing to a general audience, and so I wonder whether people should be faulted for taking it as one thing, and you're saying, "Well, really there's a misunderstanding here where general audience, yes, they're not quite getting what I'm after, but those who have attended law school do understand what I'm getting after." And it's like, well, wait a second, then, it's possibly not a successfully done piece if the vast majority of people perceive it as-

Hughes: I wouldn't say the vast majority of people perceived it in the way-

Wolfe: I guess I don't know what percentage of The Free Press' readers have gone to law school, but I thought it was a little bit more of a general audience publication. In fact, I thought it was a little bit of an antidote to the elitism of the mainstream media.

Hughes: So again, my pointing out that positional asphyxia… I don't think I said "positional asphyxia" wasn't in the autopsy, I said "asphyxia," in general. My reason for pointing that out, which is the genesis of this sidebar here, is that obviously asphyxia doesn't need to necessarily have signs on a corpse, someone can die of asphyxia without there being signs of asphyxia.

But in the context of a criminal trial, again, where it's not a 50-50 debate, and the defendant is presumed innocent, then it is relevant in the context of a criminal trial that the only complete autopsy ever done turned up no evidence of it. The entire burden is on the prosecution to prove that things happened beyond a reasonable doubt. So in that context-

Balko: Here's the thing, positional asphyxia does not leave signs-

Hughes: I didn't say positional asphyxia.

Balko: I know you didn't because my guess is that you weren't aware of positional asphyxia before you wrote this.

Hughes: No, I very much was.

Balko: You emphasized the fact that Chauvin's knee was not on Floyd's neck, which implies that you think that you have to restrict airways in order to die of asphyxia, which is common, it's what's promoted in the documentary, it's what lots of Chauvin promoters have said online over and over again-

Hughes: I only centered on that because it was the center of the media narrative.

Balko: OK. But that isn't what was argued at trial. If your point is that Chauvin didn't get a fair trial, why wouldn't you argue about positional asphyxia instead of just general asphyxia?

Hughes: The piece was also about the public conversation and public understanding of what happened.

Balko: OK, but you're pivoting back and forth between the two.

Weissmueller: Radley, could you explain that? Because I found your historical digression into this term called "burking" very revelatory or illuminating in terms of understanding why putting pressure on someone's back or neck in that way would not necessarily show up in an autopsy. Could you explain that a little bit for the people who haven't read your piece?

Balko: Yeah. So positional asphyxia is this idea that you can die of suffocation, or of lack of oxygen, or of a spike in CO2 without someone pressing on your windpipe, or without someone physically restricting your airways. If your diaphragm is restricted in a way that you can't inhale deep enough for the air to get deep into your lungs, where the sacs called alveoli exchange oxygen for carbon dioxide, you can die of suffocation relatively quickly. You can't cover police issues and not be aware of positional asphyxia, so I knew about that, but I didn't know about the history. And there's a term called burking that's used to describe this process, and it goes back to 19th century Scotland.

Two guys were selling cadavers to medical schools for dissection. And originally, they were doing it by digging up graves, which is also illegal, but the medical schools looked the other way, but then they discovered that it was a lot easier to just kill people and sell them the bodies. And the way they did it is they would wait for the bars to close and wait for drunk people to come stumbling out, and they would tackle them, and then one would sit on the victim's back while the other person put their hand over their mouth, and within a few minutes, the person couldn't breathe.

Now, when the hands are over your mouth, you could still suck in air, but if you have that combined with the pressure on your back, you can't inhale deeply enough to actually get oxygen into your system. And so this term called burking has become shorthand for this type of positional asphyxia. By the way, positional asphyxia is not controversial outside of a police custody context. Kids have died of positional asphyxia in car seats, people in accidents or falls. If you've fallen a way that your diaphragm is restricted and you can't dislodge yourself from that position, it's not an uncommon way to die.

What's happened in police custody issues, and this is one of the things that really, I think, columns like Coleman's can be destructive, is that there's been this concerted effort on the part of law enforcement groups, in particular Axon, the company that makes TASER, to wave away positional asphyxia as a possible cause of death for in-custody deaths. And instead, they promoted this condition called excited delirium, which has no real basis in science, and it's been long disputed. It's never been endorsed by the American Medical Association or the World Health Organization, but there's this concerted effort from this network of researchers paid by Axon to excuse in-custody deaths by positional asphyxia as excited delirium.

Excited delirium is this really broad condition that includes dozens of symptoms that you can just pick and choose from, and it's become really destructive. It's not just that it excuses officers like Chauvin after the fact, it's that…they're trying to get to the point where police don't even have to guard against these deaths, they don't have to move people into the recovery position because these people argue that positional asphyxia isn't a thing, that it isn't a way that people die in police custody. And so it's basically a recipe for more deaths, more deaths that could have been prevented. And that's where I think this documentary is particularly dangerous because it advances this idea.

Look, I know I'm rambling here, but if you look at, for example, the excited delirium training that MPD gave its officers, it includes a photo of the Incredible Hulk because excited delirium, two of the symptoms are superhuman strength and imperiousness to pain. Now, that isn't an invitation for police to use more and more excessive force, I don't know what is. Now, they also taught that suspects should be rolled over onto their side and they also do teach positional asphyxia, but when you have these two competing theories of excited delirium and positional asphyxia, and police can choose from one, and one's clearly legitimate and one isn't, I think it's dangerous to spread the idea that positional asphyxia is not a common way for people to die in police custody.

Hughes: OK, I think I need to get one point in here. As I've said before, it is not unreasonable to think that Floyd died of positional asphyxia, but it's also not unreasonable, and I'd like to get a really direct response about this, to think that he died of Baker's full explanation.

So yes, the top-line cause, Baker says law enforcement subdual, so on, neck restrain, and so forth, and when asked to expand on what that meant multiple times in his testimony, he said that he believes the arrest led to an adrenaline surge, the arrest and the struggle led to an adrenaline surge, which taxed Floyd's cardiopulmonary system and led him to expire. The adrenaline was the sense in which the law enforcement subdual caused as a, and he used the analogy of taking heart medication and being allergic to it, so caused, in that sense, in the sense that it wouldn't cause in a normal person, the death. So this is another reasonable explanation that does not include the level of physical pressure being applied by Chauvin.

Balko: Except when Baker was specifically asked about positional asphyxia, he said that he would defer to pulmonologists on that matter, that he wasn't qualified to make that diagnosis, which I think is a very humble and good thing for a medical examiner to admit. This is one of the things I point out, is that this…I think Coleman and other people are right in that Chauvin was treated differently than most police officers are in these cases, but he was treated differently in the sense that they did bring in a pulmonologist, they did bring in experts beyond the medical examiner, they consulted with people because there was a lot of public pressure to get to the truth in this case.

Hughes: What's relevant when the bar is raised to reasonable doubt is, is there another reasonable explanation? And was there persuasive evidence presented at trial that ruled out as a reasonable explanation the idea that the arrest and the struggle caused an adrenaline surge which killed Floyd? I don't think there was.

Balko: Well, yes, one medical examiner mentioned the adrenaline surge. He also did not rule out positional asphyxia, and other witnesses said-

Hughes: Well, again, that's not the standard in a criminal trial. In a criminal trial, when you have multiple reasonable explanations and you've concluded that they're all reasonable, you have the only guy that did the autopsy saying it was the adrenaline from the struggle mixed with the underlying conditions, well, that is supposed to be a set of facts which is exculpatory on the issue of causation, which was not just but for causation, but substantial causation. I don't think that there's a great counterargument to this point. The fact that he wasn't an expert in positional asphyxia doesn't rule out that his explanation was also reasonable and did not involve physical pressure and physical weight as a but for cause from Chauvin.

Balko: But he didn't say that was a but for a cause. What he said was from what he found in the autopsy, but he also said he wasn't qualified to make a determination on what actually killed him, that he would defer to a pulmonologist on the issue of positional asphyxia. You're interpreting Baker's refusal to diagnose positional asphyxia as him ruling it out.

Hughes: No, no, no, no. It's not for the defense to rule out positional asphyxia. That's not the defense's burden. The defense can admit positional asphyxia as perfectly reasonable.

Balko: I'm not saying it is, I'm saying the medical examiner that you're quoting didn't rule it out.

Hughes: I'm talking about from the perspective of a jury, not from Baker's perspective. The jury has now received a reasonable explanation from the guy that did the-

Balko: It's not a reasonable explanation. You're saying it's a reasonable explanation.

Hughes: You don't think it's a reasonable explanation that the adrenaline taxed the cardio? You don't think Baker's explanation was reasonable?

Balko: Medical examiners…Well, first of all, I don't think he's saying that that is what killed Floyd. I think he's saying that that was-

Hughes: Well, that's his leading theory.

Balko: Oh, he was explaining what he found in the initial autopsy report. After he looked at the videos, he determined that it was a homicide. And so you're taking one very, just like you did with the training on the MRT, you're taking one point of his testimony that came during defense questioning.

Hughes: No, I'm not.

Balko: Well, the jury…didn't find it reasonable.

Hughes: Well, that's a circular argument. Juries can get things wrong.

Balko: Of course, they can.

Hughes: Or else I wouldn't be arguing this.

Weissmueller: So it sounds like, Coleman, that you're not really backing down from much of what you put out there. I do want to ask one more question about that before I take us to a slightly different topic, which is the trial itself. Just given what we've discussed here, some of the issues that Radley has raised, is there anything, if you were doing this over, is there anything that you would present differently? If the goal of your article was to try to evaluate this from a more legalistic perspective and say, "Was there reasonable doubt?" the critique that I'm hearing and partly putting forward is that there wasn't a full picture for the reader to evaluate that because the positional asphyxia issue wasn't in there. The extent of the details of the MRT training that tell people to turn them over on their side in a recovery position, and it's an intermediary step toward-

Wolfe: You see the hobbles, as well.

Weissmueller: … a hobble, if you were redoing this, would you construct it any differently?

Hughes: Well, I would've realized that there's no way to write an op-ed length piece here that is going to include details so as to preempt the critique that you are intentionally hiding things from people. So I would've submitted to my editors that this is not going to be an op-ed length piece or anything close to it. We're going to do the 10,000-word version and we're going to include everything, including things I think are of dubious relevance so as to preempt the critique that I'm hiding this from the reader.

Wolfe: Hold on. It was a 2,000-word piece, was it not?

Hughes: Yeah.

Wolfe: When I think of op-ed length, I think of 750 words or maybe 1,000 max. You had-

Hughes: It became 2,000 because I couldn't do it in op-ed length, but in general, it was meant to be shorter. That was the end result.

Wolfe: But this is a little bit of a cop-out, right? That's not an answer to the actual question, right?

Hughes: No, Radley wrote 30,000 words about this, which is the length of a short film.

Wolfe: Yeah, Radley's word count is way too long. If I were his editor, I would be annoyed. That's different than the actual question.

Hughes: That's the level of detail that Radley feels is warranted about this issue. And certainly, the response I'll write to Radley will be much longer, as well.

Wolfe: Well, Radley could've cut a solid 500 words of snark, but the thing that I am trying to-

Hughes: There are things that are left out of Radley's piece that I find egregious we can talk about, as well.

Wolfe: But all of this is sidestepping the actual thing, which is that this is an opportunity, albeit a venue that you might not want to do it in, but this is an opportunity to say whether there's anything substantive you wish you had communicated differently or anything that Radley, with his vast experience reporting on this beat, convinced you of. Is there anything?

Hughes: Oh, OK. Yeah. So that was your first question and I felt I had to respond to Radley's other points, so I actually never got around to it. So I think Radley's most useful contribution and the most useful thing that came out of this exchange for me was understanding why the MPD manual appear to contradict itself about the hobble. That's why I omitted the hobble from my piece in the beginning, is because, as I was researching it, many points in the manual seemed to imply that the hobble was the whole endpoint of MRT, but on the other hand, there were these two pesky clauses, 1 and 1A, which appeared to suggest the exact opposite. I didn't know what to make of it. I talked to other people who paid attention to it. They all had theories, but no facts.

And furthermore, I know Balko, Radley, you expressed your theory of this contradiction in part one, where you essentially say there's an obvious reason for the omission, which is that the manual doesn't authorize MRT for any other purpose than to administer the hobble. And I considered that as I was writing the piece. The problem for me was that it explained the if then clause, but it actually didn't explain the clause which still said that there, depending on the type of restraint, you'll place them into the following recovering positions.

If you look at clause one, you see it….So prior to this, there are many clauses, as you know, that strongly imply that the whole point of the MRT is to get to the hobble, but then there's this section. As soon as reasonably possible, any person restrained using MRT who's in the prone position shall be placed in the following positions, plural, based on the type of restraint used. Now, that sentence only makes sense in the context of multiple types of restraints. Sorry. And 1A says, "If the hobble restraint is used, the person shall be placed in the side recovery position." And it seems like there should be a 1B, but there isn't. And so I read this and it just is a contradiction and it didn't make sense to me.

And Radley, your theory of the contradiction, as expressed in part one, was that they just considered it obvious that the hobble was the only restraint device. So when they say if the hobble restraint device is used, they're not implying there's some other device, they're just saying, if it's used, that's MRT and then do the following thing. And I had considered that, but the problem is it still didn't make sense of the previous clause, which still only made sense in the context of multiple restraint devices.

Furthermore, I knew from Johnny Mercil's testimony that there were whole techniques that were just unlisted in the manual, like the ground control, the ground defense program, and all of these other things that are just nowhere in the manual. So that opened the possibility of just unknown unknowns, i.e. authorized techniques that are nowhere in the manual for a person like me to find.

So I just said, "I don't understand this," and rather than write something untrue about the role of the hobble in MRT, I'm just going to omit it. And now we know that all of these theories were wrong, including Radley's offered in part one. It turns out, because of this guy, Matt Wiener, we now know that it was just a typo from a holdover of a previous version that did have multiple restraints. In other words, the language, it's not that the writers of those clauses considered it obvious that the hobble was the only authorized restraint, it's that they considered the opposite obvious and failed to change the language.

Wolfe: That's a little bit of a fake discussion, right? It's like I was wrong, but also, so was my critic.

Hughes: No, no, no, no. It's not.

Weissmueller: But Coleman, let me just…one detail that's very important, I think, is that you're saying that there's other restraints that could be applied, but there's nothing that implies that just indefinitely holding someone in this position without monitoring them, getting them into the safety recovery position and applying some sort of restraint-

Hughes: OK, we're shifting topics right now. I can deal with that in a moment, but I just want to land the point here. The reason I omitted the hobble was not to pull the wool over the eyes of my readers, it's because the manual contained a direct contradiction about the hobble and I didn't know what to make of it. And there were only theories and no facts to support them until after Radley's part….Radley, you chose the route of confidently putting forth your version of why there was a contradiction.

Balko: And you are just so slippery, so slippery.

Hughes: No, no. It's not slippery.

Balko: The one thing that you would change-

Hughes: The bad faith here is incredible.

Balko: … about my report is this thing where I was wrong and I arrogantly put a…theory that was wrong.

Hughes: I didn't say arrogantly.

Balko: First of all, I wasn't wrong. The whole point was that you cannot conclude from the manual that, because there isn't a sub point B, that that means you can kneel on someone indefinitely-

Hughes: I didn't include that.

Balko: … until they're unconscious.

Hughes: Nowhere did I say that.

Balko: No, but that was my point. My point was not to speculate about what…. The broader point was that, look, the documentary people went on Glenn Loury Show, Colin and show, and said that the fact that there wasn't a point B meant that, because Chauvin didn't use a hobble, he could use the MRT for as long as he wanted. That's how it was interpreted. That's what I was responding to.

Hughes: So my point is that you and me, none of us knew why the manual contradicted itself until after we wrote about this. I chose to omit the topic, which what I should've done, what would've been better than what both of us did, is to simply acknowledge the puzzle and say, "We don't know why." And then we found out-

Balko: But you also didn't even link to the manual. You didn't let your readers read for themselves. They had to rely on your summary.

Hughes: I know you don't believe my explanation for why I didn't do this, why I didn't link to the manual, but I've already told you why I didn't.

Wolfe: Why didn't you?

Hughes: Because I didn't know that you could, believe it or not, and I don't care if you do, I literally didn't know that you could link to a [Google] Drive and insert it there without exposing the underlying email address, and I'm paranoid about my-

Wolfe: Wasn't it also publicly available, though?

Hughes: I only had it in PDF form. I found it was difficult to find a link to.

Balko: I found it pretty easily.

Coleman Hughes: I had it in PDF form.

Balko: It was second or third in the Google search, but …

Hughes: OK.

Weissmueller: OK. I do feel that we've reached an impasse in terms of evaluating Coleman's article. I did want to ask, Radley and Coleman, if you want to weigh in on what you think of the aftermath of George Floyd's death, particularly its effect on policing. And to tee that up, I want to play an excerpt from the documentary where they have a series of police officers complaining that this is going to demoralize them and make their job harder. So let's play that clip real quick, and I'd like to get Radley's reaction first and then have Coleman weigh in.

Weissmueller: Radley, will Derek Chauvin's conviction improve policing in America, has it done so or is it going to scare police from doing their jobs, as this officer implies, or is the effect going to be negligible?

Balko: I think, in the grand scheme of things, it's going to be negligible. I think Floyd's death and the resulting protests did move the needle on a number of these issues and it made people more sympathetic to the idea of holding officers more accountable. We did see some real substantive reforms after the summer of 2020, including cities and a couple of states banning no-knock raids, banning choke holds. We saw some movement toward police accountability, but as I talk about it in the third part of the piece, a lot of the real substantive reforms we saw were behind the scenes.

So for example, California, the legislature passed a prohibition on excited delirium as a cause of death. We saw the last two medical groups that still endorsed excited delirium, revoked that endorsement, the National Association of Medical Examiners and the Emergency Physicians Group. I can't think of the proper name. But I also think that there's been a backlash. A lot of legislatures, particularly in red states, the past laws restricting protest, removing criminal and civil liability for people who hit protesters with their cars. We've seen here in Tennessee, for example, in Nashville, we overwhelmingly passed a civilian review board for the police department. The legislature then passed a bill basically overruling that. We've seen that in a lot of states where conservative state legislatures have basically rolled back reforms passed by cities.

As far as the ability of police to do their jobs, look, I think there is something to the so-called Ferguson Effect, which is this idea that, after big protests, police are more reluctant to proactively police. In some cases, I think that's a good thing. In other cases, it can have detrimental effects. I think it's not a particularly flattering portrayal of police that, if they're criticized and if they're held accountable for abusive force, that they're going to stop doing their jobs and they're going to allow crime to take over cities or neighborhoods.

As for the particular documentary, it's designed to make us feel a lot of sympathy and empathy for MPD officers. And look, I know, during the protests, police officers took a lot of abuse, including, I'm sure, a lot of officers who didn't deserve it and didn't have a long disciplinary record, but what we did see in the DOJ report is that Minneapolis, like a lot of cities that have seen protests, Cleveland, Chicago, Baltimore, Ferguson, there is a long, well-documented history of abuse, of corruption, of not just abuse of force, but also a complete inability to hold the worst actors accountable in these systems. That DOJ report on Minneapolis was damning.

And so when you read that, you can see where some of that anger came from. And of course, the documentary doesn't address or try to justify what that report found because there is no justification for it. That doesn't mean that abuse of particular police officers, or any police officer, for that matter, is justified, but it does mean that there is a real tangible source of the anger that we saw during these protests. And this is a mistake I think we often see from people who defend law enforcement and people vaguely the political right, is this effort to flatten these protests into the incident that precipitated them. You often see those with Ferguson when people point out that hands up, don't shoot was a myth and it was a lie, that that isn't actually what happened between Michael Brown and Darren Wilson.

And in some sense, they're right. That encounter did not happen the way it was portrayed, and I think Darren Wilson was probably, from the evidence that we've seen, was unjustly accused and he deserved to be vindicated, but that isn't really what the protests were about in Ferguson. They were about these tiny cities that were imposing, basically treating people like walking ATMs. They were about cities that had five, six, seven times the number of arrest warrants for people as they did citizens, residents, because these places operated on fines and fees, these little towns. And so there was just this constant confrontation between police and citizens that led to generational poverty, generational mistrust, and that's what people were angry about. And I think, when we reduce these incidents, these protests to just the incident that caused them, it does a disservice to the people who have been suffering from these policies. It also just doesn't solve any problems going forward.

And so in this case, I think people are wrong about how George Floyd died, but also, there's been this effort to say it was all based on a lie. When Glenn Loury and John McWhorter did a podcast episode about this, the title of that podcast when they interviewed the makers of the documentary was The Lie that Changed America. Now, they've both since backed down on that, and Loury, I thought, had a very humble and admirable apology and said that he had been duped by the documentary, but I think it's dangerous to reduce the anger that we see at these protests. People don't protest because they're mad about one particular death, they protest because that particular death resonates with them, it resonates with something that they experienced or that people, their friends and family experienced. And so I think we need to take these protests at their whole and look at the resulting reports in journalism investigations that came out and address the core issues and not just the particular incident that kicked it all off.

Weissmueller: Coleman, I know, from reading your book, The End of Race Politics in America, that you had a fairly negative reaction to what transpired after the death of George Floyd. And I think you raised a lot of valid points in that book, which I recommend, but could you just give us your take on what transpired after this incident in America?

Hughes: I agree with Radley that the reaction to these events is not limited to what happens between one cop and one arrestee, but comes on the heels of decades of abuses, humiliations large and small, and the accumulated anger that forms between communities and the people who are supposed to protect them. At the same time, it's a massive understatement to say that there's some truth to the Ferguson Effect. And what is tragically left out of this conversation is the aftermath of what happens to these communities, which are generally disproportionately black and poor, when the media runs with the racism narrative, which can lead to riots, which can lead to de-policing policies that, while having definitely some benefits, also can quite often have the effect of increasing crime.

I went to Ferguson in 2019, and there were still businesses, mom-and-pop shops, some black-owned, that had not returned as a result of the rioting there five years prior, abandoned buildings and so forth. 2020 represented the single greatest year-over-year increase in the homicide rate in over 100 years, possibly ever according to Pew, concentrated in the black community. It is hard for me to understand what is on the opposite side of that ledger as a consequentialist that could be worth that great a loss of life, and the fact that that is left out of the conversation is galling to me and I think that it's the part of the conversation that does not get emphasized nearly enough.

At the height of 2020, Gallup polled black Americans and asked a simple question, "Do you want more police, less police, or the same in your neighborhood." Now, if you were listening to the rhetoric in the media, you would've thought probably most black people want less police. In fact, it was only 20 percent. Sixty percent wanted the same police presence and 20 percent wanted more. And so what disturbed me was the extent to which that 20 percent was hijacked and being portrayed as the central thrust of the black community when, in fact, 80 percent wanted the same or more police presence.

Now, obviously, everyone wants better police, and that's where I fully agree with Radley that these moments can be opportunities for reforms of policies that ought to be reformed, but it seems, in the past 10 years, they have, almost without exception, verged into an anti-police, de-policing, defunding of police, downsizing of police, which has harmed no one more than it has harmed black Americans.

Balko: I have several responses to that. He's right about the poll that showed a substantial majority of Black people want more police. There are also polls showing that majority of Black people have had bad interactions with police, that I think it was 35 percent or 40 percent had an interaction which they feared for their life.

I think it's true that people want more security, they want to feel safe in their neighborhoods, and more police is really the only option that they're given. I think we can shrink the police footprint pretty dramatically in ways that have been beneficial. So for example, the CAHOOTS Program that started in Eugene Oregon, that's since spread to cities across the country, has been overwhelmingly successful. And this is where instead of sending police when someone's in a mental health crisis, which to me has always just seemed really absurd, that somebody's borderline suicidal or having some sort of crisis, and the first thing you do is send an heavily armed police team, but instead sending mental health professionals.

And what they found is not only has this been overwhelmingly successful in talking these people down, they rarely need to call for police backup. So we're deescalating these situations. I think we can remove police from routine traffic enforcement to cut out some of the most sort of loaded interactions that police have with residents, particularly in marginalized communities, which are these traffic stops, where police are trained to consider every traffic stop a potential threat. And people in minority communities are taught to be very wary of police in these situations.

So I think there are lots of ways we can shrink the police footprint. I'm not an abolitionist. I do think that abolitionists have done a lot of the work in some of these areas, and I think we should take their ideas seriously. But there also hasn't been an abolition. There hasn't been a defunding. Last I checked, I think there were about a half dozen cities that even decreased funding for police, and most were by very, very small margins. On the vast majority of the country police funding has increased pretty substantially over the last… Well, since George Floyd, but also before.

Weissmueller: I did see this from a survey that shows that… And we know in Minneapolis that there was an exodus after George Floyd.

Balko: Yeah, no, I'm not disputing that people have left law enforcement, but there has been more funding.

Weissmueller: I just want to be clear on that, yeah, OK.

Balko: It's just harder to recruit people.

Wolfe: Yeah, issues with incoming cadet classes. Right? Isn't there a huge problem with recruitment and then also sometimes when budgets are slashed, that's sort of one of the first things to go? That was my understanding-

Balko: Yeah, but very few budgets have actually been slashed. There has been an exodus in policing-

Wolfe: Not totally slashed, but maybe marginally cut. And then it's the recruitment efforts and the training of new officers that is the thing that is frequently first to go.

Balko: Some cities have cut the rate of the increase in these budgets.

Hughes: Again, but part of that is downstream of what I'm criticizing, namely, when you have a culture where literally every fourth person has, "All cops are bastards," in their Tinder bio, I don't think as many young people are going to want to become cops. And then that leads to a recruitment issue. And it may even mean worse cops because less of the cream of the crop want to become cops. Right? This is all downstream-

Balko: I could also [cite] a Buzzfeed study that came out a couple years ago that found about one in five police officer social media profiles included language that was either racist, or glorified violence, or was dismissive-

Hughes: I really don't trust Buzzfeed to tell me what racist language is, frankly.

Balko: You don't think that there's a problem of racism in police culture?

Hughes: Oh, I think, yeah. I'm sure there are racist cops. Absolutely.

Balko: And that probably dissuades people in the black community or the Latino community from wanting to become cops, from wanting to join that culture.

Hughes: I don't know; a lot of black people in New York, the NYPD is majority people of color.

Balko: Right, but I've interviewed a lot of black cops who tell me that there's systemic racism in policing.

Hughes: That's true. But I don't know that that would necessarily dissuade a black person from becoming a cop. I don't know if that would enter the calculus to be honest. But I don't know-

Wolfe: Well, there's two different issues that I want to make sure that we're not muddling here and that we sort of tease out. And I believe there's not necessarily a tension between the two, and it almost feels like in this conversation we're presenting it as if there is.

Reason's cover story from October 2020 right after the death of George Floyd was entirely about different possible reforms we could make to police departments, not abolition of the police, but rather ending the use of qualified immunity, ensuring that there's transparency with body cam footage and making sure that they're released, stopping over policing. There was a really interesting piece by Sally Sattel that is along the same lines as what Radley was just talking about, which was all about rethinking crisis response.

There's a gazillion different reforms that can be made and that I think people of all political stripes can and should support to make sure that the cops that we do have, we can argue all day over how many we have, but to ensure that they're actually being held accountable and not given this total blank check and this total license to abuse their power, which is something that I, as a believer in rule of law and limited government would never want.

I want my communities to be safe. And one way of making sure that happens is to ensure that government actors are not just given extreme license to abuse the people they're interacting with. I think that that can be true, while at the same time we can critique the activist and mainstream media narratives following George Floyd, which was that these protests were mostly peaceful, when in fact they were highly destructive riots in some places, and that we totally oppose the destruction of private property. And that should be something that we do not in any way tolerate. And that is sort of where your free speech rights end.

Certainly I think it's totally fair to say we ought to expect better of our police officers and of our policing practices, but also the ACAB movement is stupid and full of completely counterproductive ideas. I don't think really citing people unthinkingly saying ACAB in their Tinder bios is particularly germane to what we're talking about here. Both of these things can be true at once, which is that we can entirely critique these activists approaches and beliefs and critique the mainstream media narrative while also expecting better and talking about serious reforms that police departments ought to implement.

These two things that you were saying, that Radley's advocating for and that Coleman's advocating for are, as I see it, not intention, but they are made more difficult the more we sort of allow kind of shoddy journalistic narratives like those offered in the fall of Minneapolis to take hold.

Coleman Hughes: We definitely need to find the places and focus on the places where they're not intentioned, where we can have our cake and eat it too, where we can take techniques off the menu for police to use, increase accountability without increasing crime. We need to find those places and universalize all of those things.

In other areas there are actual policy. I believe that sometimes there are just policy tradeoffs, right? There are two good things, and I would argue the policy tradeoffs of defunding a general culture of hostility toward police, which discourages recruits, discourages morale, all of that. If that leads to the greatest year-over-year surge in homicide in over 100 years I would argue we verged too far on one side of that trade-off. And if not that I'm not-

Wolfe: I fear that that's really sloppy. Are you talking about 2020 homicides specifically?

Hughes: Yes.

Wolfe: What other things did we have going on in 2020? We had lockdowns. We had a pandemic. We had the government-ordered disappearance of people from public spaces.

Hughes: It didn't happen in any other country. The pandemic was worldwide. It was not-

Balko: We also have more violence generally in the US.. than any other country. If you look at-

Hughes: That doesn't explain the trend. That doesn't explain the year-over-year trend.

Balko: OK, but we saw an increase in drug addiction-

Hughes: Which is also downstream of the same cause.

Balko: We saw an increase in blood pressure. We saw an increase in mental illness. We saw an increase in anxiety.

Wolfe: That's a despair, right? Suicidality.

Balko: There was an increase overall in what you call despair in this country.

Wolfe: 2020 was a statist statistically very funky year.

Hughes: All around the world there was a global pandemic. In one country there was the greatest homicide spike it's ever experienced. It also happened to be the country that had a racial reckoning directed against police. Not a coincidence. That's all I'm saying.

Wolfe: I am not familiar enough with the crime statistics of every single other country to be able to ascertain with any certainty. The only thing that I try to keep tabs on is crime rates in the United States. And even that is very hard to do because there are many different localities and many different categories.

But I do think that this is an incredibly sloppy thing to do. One other thing that we could very easily point to if we're trying to actually suss out causality here is the specific pandemic policy and the lockdowns instituted in the United States vs. in many other places. I feel like when you begin to broaden the scope like this and try to do this comparative analysis, we end up getting even sloppier than we already are in fact being, because it is impossible to hold the crime rates of, "What was Germany's crime rate, and what was the UK's crime rate, and what was Nigeria's," right?

You don't know for certain that the spike in the United States was by far the worst in 2021 when compared with literally every other country that year.

Hughes: All of our peer countries year; all of that are normal comparison countries.

Weissmueller: I think we all did agree or there was a concession that the Ferguson effect, that is a measurable thing that happens after these events.

Balko: I think it's partly because of de-policing, but it's also because these events also inspire a lot of mistrust between marginalized communities and the police. And so people are less likely to cooperate with the police, which I would argue that given what we've seen in some of these DOJ reports, that's entirely understandable, maybe even justified in some cases.

But I mean, I think what Coleman's reaction to Liz on the accountability issues is going to be a continuing problem, which is that I think a lot of people, including seemingly Coleman, but a lot of its colleagues, particularly at the Manhattan Institute, see increased-

Hughes: I haven't been there in years. Just, sorry, for the record, I haven't worked there in years. Go ahead.

Balko: Former colleagues then, see accountability as part of the problem, that the more we hold police officers accountable, the more demoralized they get, the harder it is to recruit police officers.

And I think that's a problem when we have a profession that requires as much trust as policing does and that has the kind of power that policing does, that measures of accountability are seen as an attack on the profession itself. That I think is a big problem.

We've seen some of the conservative legislatures we've seen have passed laws making body camera footage not available to the public, that only the police department could decide when they determine it. And part of that justification for that is this argument that if we let just anybody look at these body camera videos, then police are going to be unjustly accused and be dragged to the mud. And there have been some examples of that certainly. But I think when you're talking about people with the power to kill, to use lethal force, I think we need to be erring on the side of accountability, and transparency for that matter.

Liz Wolfe: I just really, once again, keep going back to this idea because I'm a frequent critic of NYPD's practices, but also specifically of the amount of crime and public disorder that we have deliberately, as a policy choice, allowed to fester on the streets of New York, where I live and where I'm raising a child. And so this is not something that I am glib or dismissive of.

I want perhaps more than other people, or perhaps just the same as my neighbors, I want NYPD to do their jobs and I want the streets that I walk to be safe. But I do struggle with this idea that spikes in crime… that there's something about bringing police to accountability and implementing these reforms would somehow lead to crime spikes and my subway system, for example, being made less safe. To me, it's not clear to me that that is or should be the trade-off.

Hughes: Well, whether it should be the tradeoff would be irrelevant to whether-

Wolfe: But is it a tradeoff?

Coleman Hughes: It is. To some extent and in some ways, yeah, and as I said, I don't want to repeat my answer, but I think we have to zero in on the ways in which it isn't a trade-off. I don't think body cams are a trade-off at all. I think every officer should wear a body cam all the time, and it will only ever throw more light on the interaction, for example.

Wolfe: The question is where that footage goes.

Hughes: I think it should all be made public immediately.

Wolfe: Yeah.

Weissmueller: Yeah. Well, and in the case of George Floyd-

Hughes: It wasn't.

Weissmueller: … that body cam footage was delayed, and possibly people might've interpreted things differently if some of it had come out earlier. But I do want to ask Radley-

Hughes: And they probably would have been interpreted it more favorably to the cops relative to the initial bystander-

Weissmueller: Very possibly, very possibly. But I do want to ask Radley this question that… Because I think this is where I find Coleman to be on pretty firm ground when he's critiquing aspects of the criminal justice movement, the sort of anti-police, or even kind of reading racial bias into things when it's not there.

Is that something that is contributing to… is that something that's preventing the kind of reforms we want to see that is muddling the conversation? Because I was looking at… this is data that's really hard to find, but the best I could find was Peter Mosco's compilation of officer-involved shootings.

And when you look back historically, back into the 1970s, you see that the rates of police violence have gone down over time. In the same way that if we take the long view of crime, I think people who are worried about crime need to cope with the fact that if you go back to the eighties and nineties, yeah, we saw a crime spike in 2020, but historically, thank God we're nowhere near as violent as it used to be. But it seems like that should be part of the conversation around police violence too, always putting these things in context. Do you have any critiques or worries about the way that police violence is framed by the criminal justice movement?

Balko: I think those two things go hand in hand. There are fewer police shootings because there's less crime in general. I mean [inaudible 01:49:09].

I also think that for a very, very long time, particularly before the advent of cell phone cameras, we had no idea how common police abuse was, because we always took the officer's word and it would take four or five, six witnesses to contradict a police officer before we would give a victim any sort of credence. It was cell phone video that really showed that police abuse was much more common than those of us who aren't the typical victim would've believed.

Are there excesses in the criminal justice reform movement and the activist movement? Are there methods and tactics used that I wouldn't use? Sure, I guess, but I'm also… These communities have been ignored for a very, very long time. A lot of their concerns have been validated in these DOJ reports. I don't really see it as my position to tell people how to draw attention to these issues and to tell them how to be activists, or to try to change things, to try to reform things.

Wolfe: But they were rioting in the streets destroying property. Does that not seem like something that ought to be-

Balko: Yeah, of course I'm opposed to rioting and destroying property. I also think… You made a comment earlier about the mostly peaceful… There was a Princeton study of the protests after George Floyd that found 91 percent of them had no violence at all. And of the 9 percent that did, a lot of that was initiated by police-

Wolfe: Sure, but surely you understand that what I was saying was a gesture at the internet meme, right? The great kyron-

Balko: Yeah, no, I know. But I think I find that meme a little frustrating because they were overwhelmingly peaceful.

Hughes: Can I agree with Radley on this by the way? I'd like to agree with Radley on that. I went to a lot of protests. Over 90 percent of the people there would never be involved in any kind of violence. Probably probably 99 percent. It was a fringe and it devolved every night. So I actually agree with the spirit of what Radley's-

Wolfe: But the meme arose not out of attempting to tar all of the protesters as violent people, but rather out of the absurdity of the media reporting on it.

Hughes: I agree, yeah.

Hughes: Guys, I have to go, but can I ask you guys one more question before I go?

Weissmueller: Yeah.

Wolfe: Please, absolutely.

Hughes: I don't mean to cut you off. You all seem to be, forgive me if I'm painting with a broad brush, but civil liberties-adjacent people, right?

Weissmueller: That's fair.

Hughes: Yeah. So there's so many aspects of Chauvin's trial that you would think would tug at the heartstrings of civil liberties people. First of all, there's the felony murder, which prosecutors love, but defense lawyers hate, criminal law professors hate, progressives hate with very good reason because it has strict liability without having to prove intent. And in particular, when you can have assault be the underlying charge of felony murder, it sneaks double jeopardy in through the back door because assault and murder are kind of the same thing. But you can make someone liable for murder based on an assault. Prosecutors love this.

You have, in the case of Chauvin, you have jury bias issues. You have one of the jurors was found with a, "Get your knee off our necks," shirt before the trial. You have jurors complaining, fearing for their safety in the event of an acquittal. You have the jury not sequestered in one of the most publicized cases in recent American history. You have rulings of evidence about not showing the MRT training slide, even though there was lots of other evidence at the trial about what was generally taught without it having to be specifically seen by Chauvin.

So why isn't there more concern about… I would have expected to get more agreement about the elements of Chauvin's trial that seemed unfair than I do.

Balko: My perspective, pretty much everything you've mentioned are common problems within the criminal justice system. I think Chauvin got a much fairer trial than a lot of people do.

Minnesota's felony murder law is unique to Minnesota. In other states, felony murder allows you to charge with first degree murder. In Minnesota, it's how you get to this involuntary murder charge. So he still got a substantial sentence, but it was not a first degree type murder charge.

As far as juror bias, I've written about the fact that there are police officers that serve on jurors in some parts of the country. It is a problem.

So assume that jurors can put their biases aside. Death-qualified juries, I think is one of the most outrageous aspects of a criminal justice system, where in a capital punishment case, any juror who says they're opposed to capital punishment on principle is removed from the jury as a matter of fact; the prosecution doesn't even have to use one of their exceptions. And what that does is not only selects for a jury that is definitely OK with capital punishment. It eliminates people who are suspect of the criminal justice system in general. Because that's one reason to be against the death penalty, is because you don't think the system can administer it fairly.

So yeah, these are all concerns. I'm very concerned that Chauvin was stabbed in prison. I'm very concerned that Chauvin was stabbed in prison. I think it's a testament to the inadequacy of our prison system that they weren't unable to protect him. But these are all common problems throughout the criminal justice system. And I think that Chauvin should be treated… I think if every defendant and prisoner or maybe not prisoner, if every defendant were given the trial that Chauvin was given, we would have a much fairer system. It would still be a flawed system-

Hughes: What's not common is jurors fearing for their safety in the event of an acquittal because it's almost O.J.-level celebrity, not celebrity, rather, but public-

Weissmueller: Are you suggesting this should have been moved to a different venue?

Hughes: It would seem that would be very logical to move it to a different venue.

Weissmueller: What do you think about that Radley?

Balko: I think there are, yeah-

Hughes: If not this trial, then what? What would be the bar for moving to another place, if not something like-

Balko: Well, I would've to look and see what the juror's explicitly-

Hughes: You have people protesting as far afield as New Zealand over this incident. That's how much-

Balko: But are jurors on record saying that they were afraid for their lives?

Coleman Hughes: Yes, there was, I quote in my piece that you critique, I quote an unseated juror and a seated juror as fearing for their safety in the event of an acquittal.

Balko: OK, well that's obviously a concern. I don't know how you have a trial that is high stakes as this one. There are lots of concerns with juror bias and how we eliminate that to the extent that we can.

Hughes: To the extent we can, but in Chauvin's case, I'm not sure we could. I'm not sure there's any way he could have got a fair trial.

Balko: So what, do you just not prosecute him then?

Hughes: No, I'm not saying that. I'm saying I'm not sure there's a way that he could have gotten a fair trial given the tenor, and every judgment call that would've made it somewhat fairer was ruled against him: sequestering, removal… Not every, but some pretty major ones.

Balko: Well, removing… The slide we've discussed in detail, I don't think…. I mean his lawyers failed to establish a foundation to-

Hughes: Well, the significance of this slide wasn't because of who saw it, it's because of who made it, namely the Minneapolis Police Department.

Balko: But that wasn't the argument that was originally made. It was that he was trained on it and they couldn't establish that.

Hughes: Right. I understand that. But the reason it was relevant from the point of view of a jury would be that the Minneapolis Police Department made this slide. Now, there was much other testimony, including the guy Ker Yang, where he was just talking about what is generally trained with no burden to show that Chauvin specifically had trained in that. And you would think a jury would really… may be prejudiced by not seeing that slide.

Weissmueller: But as we discussed, the slide does not necessarily exonerate him, given that Chauvin's weight is on Floyd and the training side is not-

Hughes: I think I'm on firm ground here saying civil liberties people, criminal law people, generally believe when someone is on trial for murder, that a lot of judgment calls about rules of evidence, they should really get the chance to make as full a defense as is allowable given the standards and rules of evidence. And there were many judgment calls here that went in the other direction.

Balko: Well, yeah, but there were also judgment calls that went in his favor. For example, removing prosecutors from the case because they met with the medical examiner without defense attorney's presence, which I can tell you is never something a judge sanctions the state for. And in this case, a judge sanctioned the prosecutors for having that meeting with the medical examiner.

Hughes: Yes by not showing the photo that looks extremely similar to the photo of what he's doing is a fairly huge one.

Weissmueller: Just to wrap this up, I'll just say I agree that there's probably some critiques of any trial that can be made. I don't know that it's enough to overturn the outcome in this case, but it's always legitimate to raise issues of fairness for a trial.

I know you have to go Coleman, so I would just want to leave each of you one last word. If there's any final thoughts, or call to action, or reflections on the conversation you want to offer before you go. Coleman, you can go first since you got to run.

Hughes: I want to thank Radley. I want to encourage people to read my piece, and just as an exercise, consider reading it as if I'm thinking from the perspective of reasonable doubt and I'm not an evil genius trying to hide a set of facts from you.

Weissmueller: Radley?

Balko: I don't think that Coleman is an evil genius. I think he wrote a piece that amidst a lot of information he got a lot wrong, and-

Weissmueller: Evil average intelligence. Yeah, sorry. Go ahead.

Balko: I think he wrote a piece that got a lot wrong and that is misleading, and is misleading in particularly destructive ways. And I am pretty disappointed that I feel like a lot of people who would come to this from an ideological viewpoint that doesn't necessarily favor either of us have said that they found his column to be misleading on a lot of these points.

The fact that he can't acknowledge anything is pretty disappointing. And particularly The Free Press, which has positioned itself as an arbitrator of skepticism and a debunker of false narratives, I think this piece promotes a false narrative, the one that was put forward in the documentary, and I was hoping for at least a little bit of contrition and we didn't get it today.

Wolfe: I think that regardless of that somewhat unsatisfying or dissatisfying conclusion, it does definitely leave me feeling somewhat optimistic that both of you guys were willing to sit down and have this conversation with us. And I think engage in at times sneering, but mostly extremely respectful and really substantive conversations.

So Radley Balko and Coleman Hughes, thank you guys both so much for talking to Reason. I hope people follow all of your work and read all of the different components of this. That way they can attempt to come to their own conclusions. Thank you.

Balko: Thanks.

Hughes: Thanks.

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This is a rush transcript. Please check all quotes against the audio for accuracy.

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