Below is my column in the Hill on the Derek Chauvin trial in Minneapolis. Last week, at least one juror was excused after he expressed fear that he or his family could be attacked after a verdict. (Conversely, another juror called the rioting necessary to advance the Black Lives Matter movement). The man explained that his neighbors had to flee the area after the riots following the death of George Floyd.
That fear was shared by various jurors. It is not surprising when the courthouse is ringed in fencing and barbed wire and even police stations in the city are bunkered down. There are already protesters outside of the courthouse and a new “autonomous zone” in the city that is being criticized by police groups. Once again, the news coverage is highly siloed and divergent in such coverage with vastly different images emerging from the city as it prepares for possible rioting. However, it is the divergent coverage of the case itself that is my greatest concern.
The voir dire responses highlight the concern over venue in the case and the decision not to shift the trial to a different city. There is clearly a fear among jurors that there might be rioting if there is an acquittal for Chauvin. The voir dire selection also magnifies the concern over how the case has been covered in the media with the omission of critical defense arguments and evidence. I believe that there was a legitimate basis for a trial, but this is a stronger manslaughter than a murder case. The trial will give us a better view of the evidence but the coverage thus far has been dangerously incomplete in my view, as discussed below.
Here is the column:
Criminal trials have become such a predictable flashpoint for violence that cities create virtual fortresses around courthouses before juries are even seated. That is the case with the Minneapolis trial of Derek Chauvin, the first police officer to be tried for the death of George Floyd last spring.
The rioting that can follow a trial’s verdict is driven by deep-seated, long-standing racial problems. However, commentary by politicians and reporters can worsen those tensions, creating misconceptions of the strengths and weaknesses of cases.
For example, before any investigation had been completed, Vice President Kamala Harris, then a United States senator, said Chauvin clearly “murdered” Floyd, while others insisted the crime was open and shut.
Trials, however, are based on the evidence and elements of crimes. They are designed to separate the material from the mythological. A good example is the shooting of Michael Brown in Ferguson, Mo., in 2014, which provoked days of rioting. The shooting was widely called murder by national figures and commentators. To this day, because of wildly inaccurate media coverage, pundits and protesters still refer to Brown holding up his hands and pleading, “Don’t shoot!” However, the officers involved were never charged despite long, repeated federal and state investigations that found no criminal culpability. Indeed, the Obama Justice Department and other investigations refuted the hands up, don’t shoot claim.
Chauvin’s trial has some of the same problematic elements of incomplete or distorted coverage and commentary. It clearly is much stronger than the Michael Brown case — and one can not overestimate the impact of the videotape of Chauvin kneeling on Floyd’s neck for almost 10 minutes as Floyd pleads “I can’t breathe.” The video is seared into the minds of many, provoking anger and disgust. Admittedly, I view cases from the perspective of a longtime defense attorney, but this one has defense points that are rarely reported but could prove decisive in this trial.
The four officers charged — Chauvin, Thomas Lane, Alexander Kueng, Tou Thao — responded to a call alleging that Floyd passed counterfeit money. The first major defense point was captured on body-camera video as Lane spoke to Floyd, sitting in a parked SUV. When Floyd refused to show his hands, Lane pulled his gun and yelled at Floyd to show his hands. After Floyd replied, “Please don’t shoot me, man,” Lane put away his gun and said, “I’m not shooting you, man.”
Floyd is then seen staggering as he is moved to a police cruiser. He admitted he had been “hooping,” or taking drugs. He then resisted getting into the cruiser, saying he was claustrophobic and couldn’t breathe. Lane is heard offering to sit with him, roll down the windows and turn on the air conditioning. Floyd continued to insist “I cannot breathe.” A struggle then led to Floyd on the ground, with Chauvin kneeling on his neck. As shocking as the video image is, Chauvin is likely to cite Minneapolis police training material that describes such restraint for an uncooperative suspect.
The biggest defense point will come from official autopsy and toxicology reports. The autopsy did not cite restraint as the cause of the death, instead citing “cardiopulmonary arrest while being restrained by law enforcement officer(s).” (The family’s autopsy disagrees, citing death by asphyxiation). The preliminary finding of 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.”
The autopsy states that Floyd had fentanyl and methamphetamine in his system. The level of fentanyl was extremely high, and documents from the autopsy attribute the following statement to Andrew Baker, Hennepin County’s chief medical examiner:
“Fentanyl at 11 ng/ml — this is higher than (a) chronic pain patient. If he were found dead at home alone & no other apparent cause, this could be acceptable to call an OD [overdose]. Deaths have been certified w/levels of 3.”
The toxicology report on Floyd’s blood amplifies that point, stating:
“In fatalities from fentanyl, blood concentrations are variable and have been reported as low as 3 ng/ml.”
Floyd’s blood showed almost four times that level. There is palpable fear that even discussing such countervailing defense issues will lead to accusations of being a racist or an apologist for police brutality. As a result, most of these details are routinely omitted from coverage, or only obliquely referenced.
There is both a legal and a political reason Chauvin is going to trial first: The “aiding and abetting” charges of the other officers are derivative on the Chauvin’s alleged crime of murder or manslaughter. The case against Chauvin is also the strongest and there is ample basis for criminal charges due to his failure to respond to Floyd’s medical crisis. Lane, a new officer, is heard at one point suggesting they move Floyd because he might be experiencing “excited delirium. Chauvin replies: “Just leave him.” Conversely, Lane has a stronger case for acquittal, which likely would inflame passions without a prior conviction of Chauvin.
Past cases also show the danger of pushing for higher-range murder charges, which may satisfy public demands but magnify the impact of acquittals. Such overcharging in the George Zimmerman case, focusing on second-degree murder, reduced the stronger case for manslaughter. Instead of significant time on a lesser charge, Zimmerman’s prosecutors got nothing.
Chauvin’s prosecutors pushed for a second-degree murder charge in addition to manslaughter. But, clearly concerned about the sharp-cliff impact of acquittal, they are urging the trial judge to add a lesser third-degree murder charge. That still requires proving Chauvin was guilty of “perpetrating an act eminently dangerous to others and evincing a depraved mind.”
If Chauvin is acquitted of murder, many are likely to be unsatisfied by a second-degree manslaughter conviction carrying a presumptive sentence of 41 months to 57 months, rather than a sentence of up to 15 years. The anger is likely to be greater if they were never told of the defense arguments and evidence. Chauvin’s trial shows the same profile as past cases with a mix of heightened charges and heightened expectations in what is a difficult prosecution case. Chauvin could very well be convicted of murder but, if not, the incomplete commentary and coverage will only add to the ensuing unrest.