Below is my column in USA Today on the approaching trial of former police officer Derek Chauvin for the alleged murder of George Floyd. Thus far, many in the media have failed to shoulder their own burden to discuss the countervailing evidence in the case. Indeed, there is a real danger of a cascading failure in the case where a loss in the Chauvin case could bring down the cases against all four officers. This potential domino effect is the result of making the three other cases dependent on the base murder/manslaughter charge against Chauvin.
Here is the column:
The trial of former police officer Derek Chauvin in the death of George Floyd is scheduled to begin March 29 after the difficult task of selecting a jury. The difficulty is not in finding a jury that reflects the community but finding one that does not. And it became even more difficult Monday when Minneapolis announced a $27 million settlement in a civil suit brought by Floyd’s family.
One juror had been dismissed by then after he admitted that he feared he or his family would be harmed if Chauvin was acquitted. Another was dismissed after saying property damage during Black Lives Matter protests might have been necessary to achieve justice. Their problem was that they reflected their community all too well.
Judging from the encampment around the courthouse with barbed wire, fencing and security, authorities are aware of the potential for violence. The greatest threat, however, could be found in how the prosecution has structured the case - and the danger of a cascading failure of not just the Chauvin case but of the cases against all four officers.
An unstable and vulnerable strategy
The prosecutors constructed the cases against Chauvin, Alexander Kueng, Thomas Lane and Tou Thao like an upside-down pyramid resting on a conviction of Chauvin. The main charges against Kueng, Land and Thao are as aiders and abettors to Chauvin’s alleged murder or manslaughter. If Chauvin is acquitted or the jury hangs on the charges, the prosecution of the other three officers becomes extremely difficult.
Prosecutors are aware of the instability and vulnerability of that strategy. For that reason, they fought to restore a third-degree murder claim to give the jury another option for a compromise verdict between the second-degree murder claim and the second-degree manslaughter case. In a case that is best suited for a manslaughter claim, there is a risk of overcharging a case that undermines the narrative of the prosecution. The second-degree murder claim does not require intent to murder Floyd but still requires a murder committed in the course of another felony. The third-degree murder charge requires a showing that Chauvin perpetrated “an act eminently dangerous to others and evincing a depraved mind, without regard for human life.“
There are some very significant challenges for the prosecution, even with the infamous videotape of Chauvin with his knee on Floyd’s neck for more than 9 minutes. There is a palpable fear that even mentioning countervailing defense arguments will trigger claims of racism or insensitivity to police abuse. However, the jury must unanimously convict on the basis of beyond a reasonable doubt after considering a variety of such arguments, including:
When called to the scene due to Floyd allegedly passing counterfeit money, Floyd denied using drugs but later said he was “hooping,” or taking drugs.
The autopsy did not conclude that Floyd died from asphyxiation (though a family pathologist made that finding). Rather, it found “cardiopulmonary arrest while being restrained by law enforcement officer(s).” The state’s criminal complaint against Chauvin said the autopsy “revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease.” He also was COVID-19 positive.
Andrew Baker, Hennepin County’s chief medical examiner, strongly suggestedthat the primary cause was a huge amount of fentanyl in Floyd’s system: “Fentanyl at 11 ng/ml — this is higher than (a) chronic pain patient. If he were found dead at home alone & no other apparent causes, this could be acceptable to call an OD (overdose). Deaths have been certified w/levels of 3.” Baker also told investigators that the autopsy revealed no physical evidence suggesting Floyd died of asphyxiation.
The toxicology report on Floyd’s blood also noted that “in fatalities from fentanyl, blood concentrations are variable and have been reported as low as 3 ng/ml.” Floyd had almost four times the level of fentanyl considered potentially lethal.
Floyd notably repeatedly said that he could not breathe while sitting in the police cruiser and before he was ever restrained on the ground. That is consistent with the level of fentanyl in his system that can cause “slowed or stopped breathing.”
Finally, the restraint using an officer’s knee on an uncooperative suspect was part of the training of officers, and jurors will watch training videotapes employing the same type of restraint as official policy.
Serious challenges in proving this case
Even with a manslaughter conviction, however, the case against officers like Lane would be difficult. Lane is shown as the officer who first confronted Floyd after he refused to show his hands. Lane yelled at Floyd to show his hands. After Floyd replied, “Please don’t shoot me, man,” Lane said, “I’m not shooting you, man.” Later, when Floyd struggled not to get into the police car and said he cannot breathe, Lane is heard offering to sit with him, roll down the windows and turn on the air conditioning. It is also Lane (who had only been on the force a couple days) who encourages Chauvin to move Floyd from the knee restraint position.
Lane might never see a trial if the case against Chauvin fails and causes a cascading failure. Not only could Chauvin be acquitted or left with a hung jury, but the impact could be the collapse of all four cases. That will be up to the jury. But if there is violence after the verdict, it will be far worse if the public is not aware upfront of the serious challenges in proving this case.