Lawyers say prosecutors have a strong case, but juries can be unpredictable
Minnesota is bracing itself for the March trial of Derek Chauvin, when 12 jurors will decide whether the former Minneapolis police officer committed second-degree murder when he pressed his knee into the neck of George Floyd, handcuffed and face down on Chicago Avenue, on Memorial Day last year.
The story should be familiar to the entire jury pool by now, having traveled from a 17-year-old girl’s cellphone at 38th Street and Chicago Avenue around the world, inspiring protests large and small. From the Champs de Mars in Paris to one mom alone on a Minnesota highway, people raised “I can’t breathe” and “Black Lives Matter” signs. Statues of slave traders were thrown into rivers. Laws were changed. Police were put under a microscope.
It all began when a Cup Foods clerk in south Minneapolis called 911 to report that a man tried to buy cigarettes with a $20 bill the clerk suspected was fake. Police arrived to find Floyd in a car outside the store. They tried to put him in a squad car, but Floyd resisted, saying he was claustrophobic, so he was moved to the street, face down and handcuffed.
Floyd said “I can’t breathe” 16 times and called “Mama.” Even after Floyd’s eyes closed, after his body went limp, and a full seven minutes after the officers called for medical assistance, Chauvin, who is also charged with manslaughter, kept his knee on Floyd’s neck.
The three other officers who were on the scene — Thomas Lane, who held down Floyd’s legs; J. Alexander Kueng, who knelt on Floyd’s back; and Tou Thao, who kept onlookers at bay — go on trial in August for aiding and abetting murder and manslaughter. The outcome of Chauvin’s trial will undoubtedly affect their cases.
The way police responded will be scrutinized by a jury, whose selection is scheduled to begin March 8, barring any delays.
The trial will be in the Hennepin County Government Center in downtown Minneapolis, where plywood and barricades have gone up again in case protests are accompanied by looting and arson, as they were last year.
Videos of the incident that sparked a global revolt will come into focus again, except this time played in a courtroom and livestreamed all over the world.
Andrew Gordon tries cases in Hennepin County as director of community legal services for the Legal Rights Center — a nonprofit, community law firm — and expects the defense attorneys to focus on the cause of death.
“Did the knee kill him or did George Floyd die because he was on drugs and he was a bigger gentleman who had heart failure?” he said. “I think at the end of the day, that’s what the defense is largely gonna look like.”
Autopsies will be key
Expect scrutiny of the autopsies, Gordon said.
Hennepin County Medical Examiner Andrew Baker will be a central figure. He ruled Floyd’s death a homicide, saying he died when his heart stopped as police restrained him, compressing his neck. The autopsy also said he had heart disease and fentanyl and methamphetamine in his system, and tested positive for COVID-19.
Handwritten notes from investigators’ interview with Baker say Floyd had 11 nanograms of fentanyl per milliliter in his bloodstream. Baker told investigators that “If he were found dead at home alone and no other apparent causes, this could be acceptable to call an OD. Deaths have been certified with levels of 3 (nanograms).”
Baker added, however: “I am not saying this killed him.”
Brian Peters is executive director of the Minnesota Police and Peace Officers Association, which runs the legal defense fund that is paying for the defense for Chauvin and the three other former officers.
Peters is glad Hennepin County District Judge Peter Cahill is allowing the trial to be livestreamed, because he thinks most of the public has already convicted Chauvin based on the cellphone video, but he said important evidence will come out during the trial.
“Having that much fentanyl in your system — people can’t just walk around with that much fentanyl in their system,” he said. “So it was a combination, I think, unfortunately, that led to the death and those facts will be presented.”
Dr. Carl Hart, a neuroscientist who specializes in how humans respond to psychoactive drugs, wrote in an op-ed that the amount of fentanyl in Floyd’s system doesn’t say much because after a person dies, the blood concentration of fentanyl increases significantly, and doesn’t indicate the level of intoxication before his death.
“What’s more, the same amount of fentanyl that produces euphoria in a tolerant user can result in an overdose in a newer user. That’s why, along with the toxicology report, we have to look at Mr. Floyd’s behavior shortly before his death.”
Mary Moriarty, the former chief Hennepin County public defender, noted Floyd was breathing and talking until Chauvin put his knee on his neck.
“The fact was he didn’t die right then and there because of drugs in his system,” she said.
She expects the case to center around the Baker autopsy and another one commissioned by Floyd’s family, both of which concluded the cause of death was homicide.
Chauvin’s attorney, Eric Nelson, also plans to present information about Floyd’s arrest in May 2019 under similar drug-induced circumstances. In that case, Floyd did not obey the officers, shoved drugs in his mouth and cried as officers arrested him.
In earlier motions, Nelson argued Floyd died due to “fentanyl or a combination of fentanyl and methamphetamine in concert with his underlying health conditions.”
“Put simply, Mr. Floyd could not breathe because he had ingested a lethal dose of fentanyl and, possibly, a speedball,” Nelson said in a motion to dismiss. “Adding fentanyl and methamphetamine to Mr. Floyd’s existing health issues was tantamount to lighting a fuse on a bomb.”
Cahill denied the motion to dismiss.
“Excited delirium”: the condition not recognized by medical authorities
Nelson has said in court filings that Floyd had been addicted to opiates for years and most likely died from an opioid overdose. Sarah Davis, executive director of the Legal Rights Center, said she expects a lot of debate about the drugs in Floyd’s system and “excited delirium,” both of which have significant racial undertones.
Police are often taught “excited delirium syndrome” is a potentially deadly medical condition that can cause a fight-or-flight response and super-human strength. It has not been recognized by the American Medical Association or the American Psychiatric Association.
The prosecutors want the judge to ban Chauvin’s attorney from introducing into evidence a series of slides about the syndrome, according to court documents.
Nelson has said Chauvin was trained to place a knee on the neck and shoulders to restrain a handcuffed person who is actively resisting arrest. Prosecutors say evidence indicates Chauvin never saw that training presentation.
Most departments ban neck restraints, and the Minneapolis department banned their use after Floyd’s death.
At the time of Floyd’s death, Minneapolis Police policy said officers could use “the amount of force that is objectively reasonable in light of the facts and circumstances known to that employee at the time force is used.”
Chauvin’s attorney has said the department trained officers to use a “maximal restraint technique” in which officers put their knee on a handcuffed person’s neck if they are combative and pose a threat to themselves or others; the video shows Chauvin’s knee remained in place for several minutes after Floyd went limp and lifeless.
The judge is allowing prosecutors to introduce evidence about 2015 and 2017 incidents in which Chauvin was accused of using questionable restraints.
Gordon said it’s not a difficult factual case, because prosecutors can put up video of the incident and say, “Tell me that’s not an intentional act.”
“It’s not the hardest case in the world,” he said. He cautioned, however: “I hesitate to call any case a slam dunk because people will be people, especially when you get juries involved.”
Shadow of Castile
Minnesotans can look no farther than the case of former St. Anthony police officer Jeronimo Yanez, who shot a 32-year-old Black man, Philando Castile, five times, killing him, during a 2016 traffic stop. That should’ve been a slam dunk, Gordon said. But Yanez was acquitted by a jury.
Davis, with the Legal Rights Center, believes there’s enough evidence to support the second-degree murder charge, but she said in any criminal trial, things come up and it’s not as straightforward as portrayed in the media.
And, she added, “Our criminal legal system is not designed to hold police responsible for killing Black men.”
Moriarty said if the defendant were one of her public defender clients, rather than a cop, they would have been charged with intentional second-degree murder, because intent can be formed in seconds, and Chauvin kept his knee on Floyd’s neck for nearly three minutes after Kueng said he could not find a pulse. For about half of the nine minutes he was under Chauvin’s knee, Floyd was silent. For at least three minutes, he does not appear to be breathing, according to prosecutors.
Prosecutors noted in a filing that after Floyd fell silent, the crowd alerted the officers 10 times that Floyd was no longer moving, warned them nine times that Floyd was unresponsive, and pleaded with them nearly 30 times to check Floyd’s pulse. But the officers remained in the same positions.