Criminal trials have turned into such predictable flashpoints 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.
The rioting that can follow a verdict is driven lots by deeply rooted racial problems. However, commentary of politicians and reporters can worsen those tensions, creating confusion of the strengths and weaknesses of a case. Before the formal investigation had been completed, Vice President Kamala Harris, then a senator, claimed Chauvin clearly “murdered” Floyd, while others insisted the criminal case was simply open and shut.
Bur trials are based on evidence and elements of crimes. They mean to separate the material from the mythological. Take the death of Michael Brown in Ferguson which provoked days of rioting. It was widely called murder by national figures and analysts. To this day, because of all this inaccurate media coverage, pundits and protesters still refer to Brown holding up his hands then pleading officers not to shoot. However, the officers involved were never charged despite several federal and state investigations that saw no criminal culpability. The Justice Department also refuted the story that Brown had asked officers not to shoot.
The trial of Chauvin has some of the same elements of distorted coverage and commentary. It is much stronger than the case about Brown, and one cannot overestimate the effect of the video of Chauvin kneeling on Floyd for nearly 10 minutes as Floyd pleads that he cannot breathe. The video is seared into the minds of many, provoking anger and disgust. I view cases from a perspective of a defense attorney, however, this one holds defense points that are rarely reported but could be decisive in the trial.
Chauvin and the other officers charged, Thomas Lane, Alexander Kueng, and Tou Thao, responded to a call alleging that Floyd passed counterfeit money. The first vital defense point was captured on body camera video as Lane spoke to Floyd, sitting in a parked vehicle. When Floyd refused to show his hands, Lane then pulled out his gun and yelled at Floyd to show his hands. After Floyd clearly replied “please do not shoot me,” Lane also clearly put away his gun and said to him “I am not shooting you.”
Floyd is then seen faltering as he is moved to a police cruiser. He admitted he had been taking drugs. He then resisted getting into the cruiser, saying he was claustrophobic and could not breathe. Lane offered to sit with him, roll down the windows, plus turn on the air conditioning. Floyd continued to insist he could not breathe.” A struggle then led to Floyd on the ground, with Chauvin kneeling on his neck. As shocking as the video of the image is, Chauvin is likely to cite Minneapolis police training material describing such restraint with any suspect who does not follow instructions.
The key defense point will stem from the official autopsy and toxicology report. The official autopsy did not cite restraint as a cause of the death, but it cited cardiopulmonary arrest while restrained by law enforcement. The autopsy of the family disagrees and cites death by asphyxiation. The preliminary findings of the official autopsy “revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation” and that Floyd had suffered health conditions like coronary artery disease.
Documents of the official autopsy show that Floyd had an extremely high level of fentanyl in his system at 11 nanograms per milliliter. Chief medical examiner Andrew Baker stated this level of fentanyl was above a “chronic pain patient” and that if Floyd was found at home dead and alone it could be called an overdose. The toxicology report notes that fentanyl fatalities vary and have been reported as low as 3 nanograms per milliliter. Indeed, Floyd had almost four times that level. There is fear that discussing these issues will lead to accusations of being a racist or an apologist for police brutality, so lots of these details are often omitted from coverage.
There is a reason Chauvin is going to trial first. Such “aiding and abetting” charges of the other officers are derivative on his alleged crime of murder or manslaughter. The case against Chauvin is also the strongest and there is a basis for criminal charges due to his failure to respond to the medical crisis. Lane is heard at one point suggesting they move Floyd because he might be in an “excited delirium.” Chauvin replied, “Just leave him.” Lane carries a stronger case for being cleared from the charges, which would likely inflame passions without a previous conviction of Chauvin.
Past cases also show the perils of pushing for high murder charges which could satisfy the public but magnify the effect of acquittals. Overcharging for the George Zimmerman case with second degree murder reduced the stronger case for manslaughter. Rather than significant time for the lesser charge, his prosecutors got nothing. The prosecutors for Chauvin pushed for a second degree murder charge in addition to manslaughter. But they are also urging the trial judge to add a lesser third degree murder charge. That means they have to prove 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 with a second degree manslaughter conviction with a presumptive sentence of three years to five years instead of up to 15 years. The anger could grow worse if they are never told of the defense arguments and evidence. The trial shows the same profile as past cases with its mix of greater charges and greater expectations in what is the difficult instance for prosecutors. Chauvin may well be convicted of murder. If not, however, the distorted coverage and commentary will only add to the ensuing unrest.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.