Here in Minnesota and around the country, all eyes are on the trial of former Minneapolis police officer Derek Chauvin for the alleged murder of George Floyd. We are nearing the end of the prosecution’s case, so this is perhaps an opportune moment to assess what has happened so far. While not listening to every moment of the testimony, I have followed the trial closely. Much could be said, but here are a few big-picture observations:
* The defense got off to a slow start. Eric Nelson, Chauvin’s only in-court lawyer, was rather passive during jury selection and, I thought, delivered a sub-par opening statement. But he has gained steam during cross-examination of the state’s witnesses, which he has done skillfully. And the jury has seen him as one fallible man standing against the immense power of the state. This might create sympathy in unexpected quarters.
* The state preemptively showed the officers’ body cam videos that revealed, not just the last minutes while Floyd was being restrained on the street, but the 20 minutes or so that preceded. This was certainly a revelation to most or all of the jurors. Based on their answers during jury selection, they had all seen the famous last nine minutes that were posted on social media by a bystander, but had no idea of how George Floyd, big and strong and out of his mind on drugs, had battled police officers to a standoff, culminating in their acceding to his demand that he lie on the street rather than sit in the back of their squad car while waiting for an ambulance. Jurors also were probably surprised to learn that Floyd had been foaming at the mouth and complaining of not being able to breathe from the moment when officers came on the scene.
* George Floyd’s girlfriend was a key witness. The state tried to present her as a let’s-go-for-a-walk-in-the-park flower child, but it soon became evident on cross-examination that she and Floyd were drug addicts. This was the first time the jury learned that Floyd’s death may have been caused by a fentanyl overdose, not by police officers kneeling on him. In fact, Floyd overdosed on fentanyl in March, just two months before his death, and spent five days in the hospital. Perhaps he took just a little bit more, a fatal overdose, in May.
* The state presented a parade of Minneapolis Police Department witnesses, including the Chief of Police, who threw Chauvin under the bus, alleging that he violated MPD policies in his restraint of Floyd. They were followed by use-of-force expert witnesses. But how did the jury view this testimony? Jurors may have been surprised to learn that there was nothing wrong with kneeling on Floyd on the street. That was consistent with MPD guidelines, and the experts agreed it was fine. Their complaint is that Chauvin and the others should have gotten off Floyd when he stopped struggling and grew quiet, and should have turned him over on his side. But there is no MPD policy that clearly states this. Rather, the Chief and other witnesses expressed their opinions as to how the broad, general use-of-force policy should be applied in this instance.
* So the state has effectively reduced its claims against Chauvin from nine minutes to four. I am willing to believe that it would have been better practice for Chauvin and the others to get off Floyd at some point, but seriously: failure to get off a guy who is crazed with drugs and has been battling with officers for 15 minutes, and more or less winning, is murder? or manslaughter? I don’t think that is an easy sell.
* Yesterday, a senior official of Minnesota’s Bureau of Criminal Apprehension testified. Nelson’s cross-examination was effective. He brought out the fact that the normal procedure is for the BCA to investigate a crime or alleged crime, and write a report. That report is delivered to the relevant authorities, who then decide whether to bring criminal charges against one or more defendants. But that normal procedure wasn’t followed here. Rather, criminal charges were brought almost immediately against Chauvin and the other officers, while the investigation was just beginning. Charge first, investigate later–that is how things proceeded, under political pressure. Watch for this to be a significant theme in Nelson’s closing argument.
* The other subtext of Nelson’s cross-examination was the sheer power of the state that is determined to destroy his client: 50 BCA officers, 27 FBI agents, 440 reports, hundreds of witnesses interviewed, and so on. Atticus Finch and his client Tom Robinson faced better odds.
* Moreover, embarrassing testimony emerged yesterday. Two vehicles, the SUV in which Floyd, his drug dealer and a woman friend were seated, and the MPD squad car, were impounded and processed by the Bureau of Criminal Apprehension. But white pills in those vehicles were left unchecked. Why? Because the BCA didn’t realize that drugs were a factor in the case. It was only in January, as a result of a request by defense counsel, that the BCA finally identified and tested pills in one of the vehicles that turned out to contain fentanyl–a lethal dose of which was in Floyd’s blood when he died.
So, is there any chance that Derek Chauvin might be acquitted? As you can tell from these notes, I have become sympathetic to his defense. But it is too early to tell what conclusion the evidence will point toward.
The prosecution will conclude its case with expert witnesses on cause of death, the key issue in the case. Did Minneapolis police officers kill George Floyd by kneeling on him, as the local and national press have relentlessly asserted for nearly a year? Or did Floyd die of a drug overdose, with the officers essentially bystanders? The medical evidence on both sides will be critical. We know that when he died, Floyd had something like three times a lethal dose of fentanyl in his system. How will the prosecution try to overcome that fact?
Again, the jury is likely to be surprised. Far from claiming that the officers’ kneeling on Floyd–entirely proper, at least for the first five minutes or so–killed him outright, I expect the prosecution will argue that the officers’ restraint was a contributing factor in the larger context of Floyd’s drug overdose and other health issues. Minnesota law says that a defendant can be guilty of manslaughter or murder if his wrongful conduct was a “substantial causal factor” in the decedent’s death.
When this trial began, I doubt that any juror expected the prosecution to argue that whatever Derek Chauvin did was not the sole cause, or the primary cause, of George Floyd’s death, but rather a “substantial causal factor” along with a fentanyl overdose and other serious health issues. Will the jury be willing to destroy Derek Chauvin’s life and send him to prison on this theory?
That raises, once again, the question of whether Derek Chauvin can possibly get a fair trial. Everyone knows that if the jury doesn’t convict, and probably if it doesn’t convict Chauvin of murder, the city of Minneapolis will go up in flames. This is why the power of the state is arrayed so unanimously against him. Chauvin may have misjudged, may have screwed up, for four minutes on May 25, 2020. But he is being sacrificed to raisons d’État.
Everyone is against him, including his own police department. The three officers who were with Chauvin on May 25, and who also have been charged, presumably won’t testify. Their lawyers will insist that they take the 5th–as, by the way, Floyd’s drug dealer did yesterday. The dealer was with Floyd on May 25 and pled the 5th on the ground that he may be prosecuted for supplying Floyd with the overdose of fentanyl that killed him. But the jury won’t see that.
The trial so far as been the world vs. Derek Chauvin and Eric Nelson. While the “dream team” prosecution has rotated counsel from the Attorney General’s office and various high-priced lawyers from Minnesota and D.C. who are working for free, Eric Nelson, outmanned and outgunned, has stood up alone for his client. Over the last two weeks, he has grown visibly tired and yesterday he lost control over some exhibits through sheer exhaustion. (No one who hasn’t tried a jury case, even one of relatively modest length like the Chauvin trial, can understand what hard work it is.) Maybe the jury will look down on him, compared with the well-heeled prosecution team. Then again, maybe they will relate to a classic underdog story.
The trial’s result likely will come down to the medical testimony on both sides that we have not yet seen. But so far, I think Chauvin’s defense has held its own, and probably has surprised most members of the jury. The political class may have expected to usher Derek Chauvin off to a speedy oblivion for the sake of a greater good, but instead, they have a fight on their hands.