Below is my USA Today column on the upcoming trial of former cop Derek Chauvin for the alleged murder of George Floyd. So far, many media outlets have not taken their own burden to discuss the evidence to the contrary in the case. Indeed, the real risk of cascade failure is in the event that a loss in the Chauvin case could bring cases against all four officers to a standstill. This potential domino effect is the result of the dependence of the other three cases on the murder / manslaughter charge of Chauvin.
Here is the column:
The trial of former police officer Derek Chauvin for the death of George Floyd is due to begin on March 29 after the difficult task of selecting a jury. The difficulty is not finding a jury that reflects the community, but one that doesn’t. And things got tougher on Monday when Minneapolis announced a $ 27 million settlement in a civil lawsuit filed by Floyd’s family.
A juror had been fired by then after admitting he feared he or his family would be harmed if Chauvin was acquitted. Another was fired after saying property damage during the Black Lives Matter protests may have been necessary to achieve justice. Their problem was that they reflected their community all too well.
Judging from the camp around the courthouse with barbed wire, fences and security, authorities are aware of the potential for violence. The biggest threat, however, was how the prosecution structured the case – and at risk of cascading failure not just of the Chauvin case, but of the cases against all four officers.
An unstable and vulnerable strategy
Prosecutors constructed the cases against Chauvin, Alexander Kueng, Thomas Lane and Tou Thao like an upside-down pyramid based on a conviction of Chauvin. The main charges against Kueng, Land and Thao are as aides and proponents of Chauvin’s alleged murder or manslaughter. If Chauvin is acquitted or the jury upholds the charges, prosecuting the other three officers becomes extremely difficult.
Prosecutors are aware of the instability and vulnerability of this strategy. Because of this, they fought to restore a third degree murder suit to give the jury one more option for a compromise verdict between the second degree murder suit and the second degree manslaughter. In a case best suited to a manslaughter lawsuit, there is a risk of overloading a case that undermines the criminal prosecution portrayal. The second degree murder lawsuit does not require intent to murder Floyd, but it does require a murder committed in the wake of another crime. The third degree murder charge requires evidence that Chauvin “committed an act which is extremely dangerous to others and which shows a depraved spirit with no regard for human life.”
There are some very significant challenges to the prosecution, even with the infamous videotape of Chauvin, whose knee is on Floyd’s neck for more than 9 minutes. There is a palpable fear that even the mention of counter-arguments by the defense could spark claims of racism or insensitivity to police abuse. However, after considering a variety of such arguments, the jury must:
►When Floyd received a local call for allegedly passing on counterfeit money, Floyd refused to use drugs but later said he was “mature” or was on drugs.
►The autopsy did not reveal that Floyd died of asphyxiation (although a family pathologist made this finding). Rather, a “cardiopulmonary arrest was detected while being held back by law enforcement officers”. The state’s criminal complaint against Chauvin said the autopsy “did not reveal any physical evidence to support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease. “He was also COVID-19 positive.
Andrew Baker, Hennepin County’s chief medical officer, strongly suggested that the main cause was a large amount of fentanyl in Floyd’s system: “Fentanyl at 11 ng / ml – this is higher than in (a) chronic pain patients. If he was found dead at home alone and had no other obvious cause, it might be acceptable to call an OD (overdose). Deaths were certified with a level of 3. Baker also told investigators that the autopsy did not reveal any physical evidence that Floyd had died of asphyxiation.
► The Toxicological Report on Floyd’s Blood also found that “in fentanyl deaths, blood concentrations are variable and are only 3 ng / ml.” Floyd had almost four times the level of fentanyl that was believed to be potentially fatal.
►Floyd in particular said repeatedly that he could not breathe while sitting in the police cruiser and before he was ever pinned to the ground. This is in line with the level of fentanyl in his system, which can lead to “slowing or stopping breathing”.
► Finally, the reluctance of an uncooperative suspect with an officer’s knee was part of officer training and the jury watched training videos that use the same type of reluctance as the official policy.
Serious challenges in proving this case
These facts do not negate the allegation of manslaughter, as Floyd was clearly in distress, and Lane suggested that officers move Floyd in the face of his grievances. Chauvin has overruled this proposal.
However, even if convicted of manslaughter, the case against officials like Lane would be difficult. Lane is shown as the officer who first confronted Floyd after refusing to show his hands. Lane yelled at Floyd to show his hands. After Floyd replied, “Please don’t shoot me man,” Lane said, “I won’t shoot you man.” Later, when Floyd was trying not to get into the police car and said he couldn’t breathe, Lane was heard offering to sit with him, roll down the windows and turn on the air conditioning. It’s also Lane (who has only been on duty a few days) who encourages Chauvin to move Floyd out of the knee-restraint position.
Lane may never see a process if the case against Chauvin fails and causes a cascading failure. Not only could chauvin be acquitted or left to a hanging jury, but the repercussions could be the collapse of all four cases. That is up to the jury. However, if violence does occur after the judgment, it will be far worse if the public is not pre-aware of the serious challenges in considering this case.
Jonathan Turley is Shapiro Professor of Law of Public Interest at George Washington University and a member of the USA TODAY Board of Contributors. Follow him on Twitter: @JonathanTurley