Thoughts On the Chauvin Trial and Verdict

I watched most, not all, of the Derek Chauvin trial and have followed the story closely over the last year. These are some of my thoughts on what has proved to be one of the most consequential criminal prosecutions in American history.

* This entire case could not have happened just 10 or 15 years ago. The prosecution was driven by the global phenomenon of a bystander video that was posted to social media. In years gone by, there would have been no controversy. George Floyd would have been recorded as the 5,000th or so opioid death in Minnesota.

* Likewise, the trial was a 21st-century phenomenon. Traditionally, a jury trial involves hearing testimony from various witnesses so the jury can sift the evidence and determine what happened. Here, we know what happened. Every moment of the officers’ encounter with George Floyd was recorded from multiple perspectives by officers’ body cams, bystanders’ cell phones, and surveillance cameras. The many videos dominated the trial, but they couldn’t answer the important questions in the case: what killed George Floyd, and what was Derek Chauvin thinking?

* We have never seen a criminal proceeding with this level of pressure on the jury to convict. Everyone from the President to the Governor to the Mayor to the press to major corporations and social institutions–not to mention thousands of rioters and demonstrators–weighed in against Chauvin. Likely Chauvin never had a chance, but to have any hope of acquittal he needed, in my opinion, a much more aggressive defense.

* In particular, the defense’s approach to cause of death–one of two key issues in the case–was hopelessly confused and doomed to failure. Realistically, the only way Chauvin would be acquitted is if the jury concluded that Floyd died more or less exclusively from a drug overdose and the police officers were mere bystanders. That is a plausible position: Floyd had 11 nanograms per milliliter of fentanyl in his blood, and 3 to 5 nanograms are generally considered a lethal overdose. The prosecution argued that Floyd could tolerate more because he was an addict–not a strong premise from which to send a police officer to prison. But I know of at least one study that found the median lethal overdose among addicts was 9 nanograms. And just two months before his death, Floyd spent five days in the hospital due to a fentanyl overdose.

* For some reason, Eric Nelson did not retain an expert to testify that the drug overdose was the exclusive, or nearly exclusive, cause of Floyd’s death. Instead, his expert testified that a number of factors combined to kill Floyd, and in the end the cause of his death was undetermined. Thus the prosecution experts’ testimony that Floyd died from asphyxia was not directly contradicted.

* Nelson followed this up in his closing argument by saying that there were multiple factors in play, and if any of those other elements–the drug overdose, Floyd’s heart disease and hypertension–contributed in the slightest degree to his death, then Chauvin can’t be convicted. This was from outer space. The jury was instructed, per Minnesota law, that it is sufficient if Chauvin’s actions were a “substantial causal factor” in Floyd’s death.

Thus, when Nelson finished, the prosecution asked Judge Cahill to re-read the instruction on disregarding comments of counsel that contradict the evidence or the court’s instructions on the law, and Cahill complied. Jerry Blackwell then began his rebuttal argument by blasting Nelson for misrepresenting the law on the critical issue of causation. So at the conclusion of the trial, the defense case was in tatters.

* The second major issue was Derek Chauvin’s intent. Here, too, I thought the trial was deficient. There was lots of evidence that Chauvin and the other officers didn’t follow the best practice, which would have been to get off Floyd and roll him over, once he stopped screaming and struggling. Several witnesses, including the Minneapolis Chief of Police, testified that this is what a reasonable police officer would have done.

I can accept that. But reasonableness is the standard for negligence, not for murder. There is a huge gulf being acting unreasonably, or contrary to best practices, and committing murder. The actual elements of the three crimes of which Chauvin was accused were virtually ignored throughout the trial, even in closing argument. Thus, the prosecutors filled the gap in closing by saying, illogically, “Watch the video” and “Believe your eyes,” while Nelson went on and on about reasonableness.

* I have a hard time seeing how the actual elements of the three crimes were proved beyond a reasonable doubt. The offense for which Chauvin will be sentenced was second degree murder, which requires that he cause the death of another human being “while committing or attempting to commit a felony offense.” What was the felony that Chauvin was committing? Kneeling on George Floyd, presumably.

But kneeling on someone is not normally a felony. It becomes one here, I take it, because Floyd died. But that bootstraps the requirement of committing a felony by making it identical to the allegedly wrongful act that caused the death for which the defendant is charged. I do not see how this can be a proper reading of the statute.

* The manslaughter charge requires the jury to find that Chauvin “consciously [took] chances of causing death or great bodily harm to another.” What is the evidence that Chauvin consciously risked killing or causing great harm to Floyd? The prosecution simply says, “Watch the video.” But the video can’t tell us what Chauvin was thinking, why he did what he did, or whether he believed that Floyd was dying and might be saved by turning him over.

* For this reason among others, I would have encouraged Chauvin to testify. It probably wouldn’t have done any good, but at least the jury could have seen the incident from his point of view, and there would have been actual evidence of Chauvin’s intentions and motives for the jury to consider.

* The defense has various grounds for an appeal, including the trial court’s denial of its motion for a change of venue and its motion for a mistrial following Maxine Waters’ incendiary remarks. I think there is zero chance of a successful appeal, on those or any other grounds. The last thing Minnesota’s appellate courts want to see is a re-trial of Derek Chauvin, and Minnesota’s Supreme Court is among the most liberal courts in the U.S.

The death of George Floyd and resultant prosecution of Derek Chauvin are a sad story from which, unfortunately, we are not yet able to move on. Apart from the ongoing international celebrations of yesterday’s verdict, we have the fact that the other three officers are scheduled to be tried this Summer. Then, too, we have the case of Daunte Wright and Kim Potter. During the Chauvin trial, Potter accidentally shot Wright while he was resisting arrest, when she meant to tase him. She has been charged with manslaughter, even though the body cam video makes it crystal clear that she did not consciously take actions that endangered Wright’s life. That case is already another racial cause celebre, and many more are no doubt yet to come. The end is not in sight.

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