Derek Chauvin Trial
Chauvin Trial Week 1
Derek Chauvin’s trial began this past week and I’ve been watching basically every minute of the coverage. I skip all the expert analysis stuff because that’s a bit much imo, but I have watched the questioning of every juror so far.
As a quick aside, I genuinely suggest you watch part of jury selection if you haven’t and are basically unfamiliar with it. You really do get a strange hodgepodge of nearly every type of person imaginable in jury selection and the attorneys regularly ask questions normally reserved for places like the culture war thread. Hearing everyday people wrestle with these questions can be both interesting and, at times, hilarious or cringeworthy.
Quick update and some notes on the current situation:
-We have 7 jurors in week 1! Recently, there was a post in the culture war thread wondering how they would even get jurors. A reasonable question, but about 1 in 7 jurors that were given the questionnaire (i.e., the original jury pool) were selected to serve, and about 1 in 4 jurors that made it past the first round of for-cause excusals were selected to serve. Juror selection has gone relatively smoothly, imo, and it really hasn’t been that much harder to find jurors for this trial than any other trial in my experience. We’re already halfway done with picking jurors and the trial proper isn’t scheduled to begin for two more weeks.
-The 3rd degree murder charge was reinstated on Wednesday (i think), giving the prosecution one more avenue for a guilty verdict. 3rd degree murder in Minnesota is essentially depraved-heart murder. The charge had been previously dismissed by the trial court because he did not believe the alleged conduct could fit the definition of 3rd degree murder, but the Minnesota court of appeals reversed that decision.
-The Defense was granted an astounding 15 peremptory challenges (i.e., they can get rid of 15 prospective jurors for basically any reason). Also, the prosecution only got 9 peremptories. I’ve seen quite a few trials, but I have never seen one side get that many peremptories, nor have I seen one side get more than the other. Going into week 2, the defense still has 7 peremptories left and the prosecution still has 5.
-Probably stating the obvious a bit, this case has a really weird dynamic where the prosecution, normally attempting to find jurors who are trustworthy of police, are now trying to find jurors who are more skeptical of police. The defense, on the flip side, are trying to seat jurors more likely to see police in a positive light. Not a big deal or anything, but this is really odd relative to a run-of-the-mill trial so I wanted to mention it.
-I wanted to gripe for a minute about Batson challenges. Batson challenges are a suggestion, usually by the defense, that the other party has used a peremptory challenge for an unlawful reason. The unlawful reason could be race, sex, ethnicity, or religion, but they are almost always raised in the context of race. And even though you cannot challenge a juror for their race no matter what their race is, these challenges almost exclusively are used when a nonwhite juror is excused, no matter how reasonable the challenge is.
The prosecution raised two of them so far, and in line with my unfortunate experiences with Batson challenges, they were both about race and both raised after the juror in question was properly struck by the defense.
I find these challenges incredibly annoying. First, they are almost never raised in good faith. From the pattern of practice in which it is used, it is clear to me Batson challenges are raised automatically by parties when the other side strikes someone who looks even vaguely ethnic. Oftentimes, when a Batson challenge is raised I cannot even tell what race the stricken juror even is and I doubt the challenging party can either, but hey, they were struck and are not white, right? Might as well raise the challenge.
Second, it really slows things down. Usually by the time attorneys are using their peremptories, it’s been a long fucking day. The jurors are brought in first thing in the morning, and by about 2-3 p.m., after lots of administrative crap is taken care of, they are finally being officially chosen. When one party raises a challenge, the proceedings stop. The court then has a side bar, where one side explains their challenge, then the other side responds, then the judge makes a decision and a record about their decision. All in all, it adds probably 10 or so minutes to a trial per challenge (plus, the juror, excited because they were just told they were being sent home, now is asked to stay so the parties can argue about them, which is both awkward and unfortunate for the juror). Not a big deal, but when you’re already several hours into this thing and you’re both tired and pretty close to having a jury selected so you can move on, and you’re pretty sure there’s no good reason for the challenge in the first instance, it can really get on your nerves.
I plan on keeping up with this trial so I will probably post more going forward.
Chauvin Trial Week 2: Voir Dire and Motions
Week 2 of voir dire (and pre-trial motions) are in the books in Derek Chauvin’s case. Here are some of my observations and updates from the past week after watching proceedings:
-The big story this week was the damn settlement news that came out ~10 days ago. In case you hadn’t heard, the city of Minneapolis agreed to pay George Floyd’s estate $27M and announced this fact right before trial is set to begin. Pretty bad timing, though the Minneapolis city attorney asserts that the timing is innocuous. The defense tried to get the trial pushed back and moved to another county because of the publicity and the worry that the city’s actions may be viewed as an admission of wrongdoing. The judge stated he was originally skeptical that the settlement news would matter at all, but after calling back the 7 jurors already chosen, 2 were dismissed after being selected because the settlement, in their minds, interfered with their ability to be fair and impartial. The judge ultimately denied any motions to continue or change venue and it looks like they actually will start March 29, but the week started off pretty rocky and there were a few moments this week where I thought the trial might be continued.
-The judge made a major ruling this week re: the admissibility of George Floyd’s arrest from 2019. The judge is allowing part of the body cam footage from George Floyd’s 2019 arrest to be admitted as medical evidence (my understanding of the judge’s ruling is that from around 1:00 until around 2:40 is admissible, though he did not give exact timestamps). Further, a photo of pills in the crack of the passenger’s side seat is admissible, as well as Floyd’s blood pressure and his related statements made for medical diagnosis. All this is admissible to establish how Floyd’s body reacts when confronted by police at gunpoint and he’s ingested drugs. Any evidence showing Floyd’s emotional state and behavior at the time of the detention/arrest are not going to be allowed unless the prosecution opens the door to such evidence later.
-Some stats for the stat nerds out there (only current through Thursday night):
326 jurors were given questionnaires
The parties have gone through the first 95 jurors
57 of those 95 were actually questioned at the courthouse by the parties, and 38 were released before questioning began March 8.
22 of the 38 were excused for cause (I think upon review by the parties after receiving the questionnaires but I’m not 100% on that). The other 16 were released by the jury office between the questionnaires’ return and the beginning of voir dire.
Of the 57 questioned, 14 were selected, and then 2 released after being selected, leaving 12 selected (we’re actually at 13 now)
27 of the 57 were released for cause
The defense used 12 peremptory challenges and the prosecution used 6 (I believe they’ve actually used 13 and 7, respectively, as of Friday’s recess)
-The judge got pretty pissed a couple of times this week and, while I hate when judges catch attitude with me, I have to admit that it can be pretty funny to watch others catch shit from the court.
The first time was at the very beginning of the week because some media is apparently reporting on the safety measures the courthouse is taking to protect jurors. The judge threatened to revoke the media’s ability to show the trial if that continues, and that would make me sad, so please stop fucking yet another thing up media thank you.
The second time was late on Thursday when the prosecution brought up that the defense failed to provide proper transcripts to the court when discussing statements made during a press conference addressing the settlement. The judge lambasted the prosecution for holding the defense to an unfair standard considering their lack of resources relative to the state, and noted that the state has something like 10 or 12 pro hac vice prosecutors working on this case. Holy. Shit. The state really is coming at Derek Chauvin with full fucking force if they have that many lawyers, including guys as high profile as Neal Katyal (who argued motions for the state in week 1), working on the case. This is not the first time I’ve heard the judge get fairly annoyed with the prosecution (this is the angriest he’s been though), and it makes me wonder if they’re going to lose some close-call evidentiary issues at trial because the judge is getting sick of their shit. I might be reading too much into his little annoyances, but it’s something to look out for.
-An observation about safety: many jurors stated they feared for their physical safety after finding out they were called to serve in this case, though most felt better when they saw armed guards outside the courthouse when they physically arrived for jury selection. Jurors almost universally did not care about covid-19 risks.
-So many juror opinions on BLM and Blue Lives Matter are much different than online bubbles would make you believe (at least from where I’m standing). Most have pretty lukewarm feelings towards both, some slightly in favor, some not, but surprisingly few who are passionate about either. Though the types who did express the strongest views may have been struck for cause before now, even then that’s not very many--maybe about 1 in 5 prospective jurors at most.
-The defense was granted 3 extra peremptories, giving them a total of 18. The prosecution was given an extra peremptory as well and are up to 10. Also, the prosecutor who’s done all voir dire for the state up to this point keeps calling peremptory challenges “pre-empatory” challenges, and it makes me want to field dress a cat.
-We now have 13 jurors, even with the 2 that were originally chosen and then released. Only 1 more is required for the trial to begin, but the judge wants to get 2 more to increase the chance of starting opening statements on March 29.
One thing that comes up in every trial is a prospective jurors ability to be fair and impartial. This often boils down to straight up asking jurors if they can put preconceived notions to the side and only consider evidence presented in the courtroom (though lawyers try to be a little more artful with their questions and not show their cards, so to speak). The jurors almost always give one of two responses to this question; they either say “I can be impartial” or “I think I can be impartial.” The lawyers and judge generally accept the former, and the latter is often fought over because it is not enough of a guarantee of impartiality. My question is, do you think the question and the responses are measuring what the attorneys and judge wish to measure, i.e. those who say the former are more trustworthy and those who say the latter are less likely to be impartial?
Because I don’t think it does. It seems to me that the question “can you be fair and impartial”--then met with the response “I can be impartial”--is selecting for something closer to the manipulative, overly-confident/arrogant, or people-pleasing types who are just saying what they know you want to hear. On the flip side, the juror who answers “I think I can be impartial” is indicating one of two things; either a genuine reflection that they might not be impartial because of their preconceived notions (thus should be struck), or more likely imo, a genuine admission that while they think they can be impartial, they have never been on a jury or in deliberations before and cannot say for certain they would be impartial, but would absolutely try. These latter jurors appear to be either more, or at least close to as, trustworthy as the jurors who say the former. I’m curious what other mottizens think and how you would go about finding the actual fair and impartial jurors if you agree that this is a poor way of picking them.
Chauvin Trial Week 3: Defining Crimes Is Hard
Voir dire is complete! We had the 14th and final juror on Monday and the 15th, just-in-case-shit-happens juror on Tuesday. With such a short week, there’s not much to report on but I managed to think of a couple things:
First, 9 women and 5 men will likely serve on this jury (this may change to 8 women and 6 men if some fuckery happens b/c the 15th, just-in-case juror was a man). I wish I had stated this beforehand but I predicted ahead of time more women would serve on this jury because, in general, I find more women get picked for jury service than men. I have a hunch this is because women are more likely to say what the questioning attorneys and judge want to hear, and men are more likely than the average woman to say something that upsets the status quo like ‘fuck the police your Honor!’ during jury selection, thus weeding them out. This is just a hunch based on experience, though. However, originally it had looked like I was wrong because 6 of the first 9 selected were men, but then 2 of those men were sent home after being selected when the judge discovered that the settlement news had interfered with their ability to be fair and impartial. After that it was basically all women selected to serve.
Second, the judge announced either this week or last that he will not release the juror’s names “until it is safe to do so.” Personally, I think this is incredibly irresponsible and the judge should never release the jurors’ names (though they should be free to reveal themselves, obviously). Story time: the very first murder trial I witnessed in the jurisdiction I practice in occurred after a man was shot to death on his own lawn. Why was he shot you ask? Well, he had been picked up by robbers to work on a car for them very shortly after they had committed the robbery. The money, the items they stole, the masks and guns, etc., were all still in the car when they picked up the victim. The victim then snitched, anonymously, that it was them who committed the robbery. Sometime thereafter, the courthouse accidentally released the victim’s name publicly as a witness in the robbery case, and the defendants found out he was a snitch and they had members of their squad fucking murder him. Granted, this was a witness who snitched and not a juror, but I think this story is analogous enough and the message is clear: do not release their names just in fucking case. You don’t know how crazy and vengeful people are and how they will react. I have never heard of juror’s names being released like this and I don't think they should ever be released under any circumstances.
But, since I didn’t have a ton to write about in the ~1.5 days of voir dire, I figured I’d do some digging on the charges Chauvin faces and some definitions/caselaw, etc.
The first charge Chauvin faces is second-degree unintentional murder (Minnesota Statute 609.19.2(1)), which means “caus[ing] the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting,” aka felony murder. Interestingly, though, the charged underlying felony in this case is third-degree assault (helpfully defined as “[w]hoever assaults another and inflicts substantial bodily harm”...yeah I love when the definition of assault includes the word assault, but this is law we’re talking about, not sense-making. I think the definition of assault is here at subsection 10 if you’re interested). It’s pretty rare, from my experience, for jurisdictions to allow third-degree assault as the predicate felony for felony murder. Usually, felony assault and felony murder merge but Minnesota rejects applying the merger doctrine to this scenario. If Minnesota applied the merger doctrine like many jurisdictions do, this charge would not be possible with assault as the underlying felony.
Skipping past issues with third-degree assault, let’s talk about “cause,” which is probably the ultimate issue in this case. The definition of “cause” for purposes of this statute means that, in Derek Chauvin’s case, his actions are a “substantial causal factor” in Floyd’s death. Or, it must be shown that Chauvin’s acts injured Floyd, and those injuries led to his death. Honestly, these definitions did not help me very much--I found Minnesota’s caselaw lacking in this area and, unfortunately, I do not have access to their jury instructions because MN charges money for them (bastards...those jury instructions might have helped my research a great deal).
The defense can attempt to show that the drugs and Floyd’s underlying health conditions were a superseding cause (which Minnesota confusingly calls a ‘superseding intervening’ cause, which I was always taught are distinct concepts), thus preventing Chauvin’s conviction of this charge, but to show that they must establish (as far as I can tell) that the drugs/conditions, by themselves, caused Floyd’s death.
The second charge is third-degree murder (Minnesota Statute 609.195(a)), meaning “[w]hoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree,” aka depraved-heart murder.
Slightly elaborated, a depraved mind is engaging in conduct that the actor is aware creates a substantial and unjustifiable risk to human life and consciously disregards that risk. But it’s defined elsewhere as “ordinary symptoms of a wicked or depraved spirit, regardless of social duty and fatally bent on mischief” and “[a] mind which has become inflamed by emotions, disappointments, and hurt to such degree that it ceases to care for human life and safety,” so I’m not sure I can say what a depraved mind really is. But I can say that researching this led me to one of the most confusing, hair-splitting sentences in the history of caselaw:
“In sum, we are mindful of the statements in jury-instruction caselaw stating that a conviction of third-degree murder is not possible if the death-causing act was directed at a particular person. But other supreme court caselaw indicates that a third-degree murder conviction may be based on conduct directed at a single person, and even a targeted person.” ...dafuq?
That quote nearly broke my brain; what the fuck is the difference between a particular person and a targeted person? Fortunately, elsewhere this opinion sorta clarifies that if the depraved-mind conduct is directed at a person with intent to kill that person, third-degree murder is not possible, but if the depraved-mind conduct is directed at a person with no intent to kill any particular person, third-degree murder is possible. But still, fucking fix your shit Minnesota Court of Appeals.
The final charge is second-degree manslaughter (Minnesota Statute 609.205(1)), i.e. you are guilty if you “cause the death of another . . . by [your] culpable negligence whereby [you] create an unreasonable risk, and consciously take[ the] chance of causing death or great bodily harm to another.” Culpable negligence seems to be the money language here, so that’s where I’ll focus.
Culpable negligence borrows a lot from the tort definition of negligence. Further defined, culpable negligence means gross negligence + recklessness. Gross negligence = a gross deviation from the standard of care a reasonable person would observe in the actor’s circumstance (objective standard), and recklessness = an actual, conscious disregard for the risk created by the conduct (subjective standard). Further, for criminal liability to attach, the defendant's breach of duty (i.e., the lack of adherence to the appropriate standard of care) must be the proximate cause of the victim's death. So, did Chauvin “grossly” and consciously deviate from an applicable standard of care towards Floyd, thereby proximately causing Floyd’s death? If so, he should be found guilty of second-degree manslaughter.
I hope this post has made some sense--I wrote it without tons of preparation and with some booze in my system, and it definitely falls short of my official legal-writing standards, but I want to make these posts engaging and understandable. And I am not gonna go too much into predictions because juries are notoriously hard to predict and I haven’t seen all the evidence. But the TL;DR is, this trial is largely going to be about what caused Floyd’s death. Was it the drugs and/or his underlying health conditions? Was it Chauvin? Was it both, and if so, what level of blame can be assigned to each? The more the blame the jury assigns to Chauvin, the more likely he is convicted of at least one of the above charges. I cannot predict what the jury will do, but I do predict the big fight will be defense and prosecution experts fighting over Floyd’s autopsy and the likely cause of his death. And that will probably be slightly on the boring side, but dammit I’m going to watch anyway.
Opening statements start this morning, let’s fucking go!
Derek Chauvin Trial Week 4: First Week of Testimony
The first week of testimony is finished and it was mostly a boring week, especially the first half. The prosecution’s case-in-chief, thus far, has mostly been civilians who were on scene at the time of the incident and a few higher-level officers who got involved shortly after the incident when it became clear this was a fairly major incident. Some other witnesses included 911 dispatch and George Floyd’s former girlfriend, Courteney Ross, who testified a bit about her relationship with Floyd and their shared opiate addiction.
But I want to start out briefly by responding to a post made in last week’s CW thread:
I find myself feeling sympathetic towards the defense in the Floyd trial. Part of it is that all of the witnesses' testimonies so far have been — in my opinion — useless (and awkward, rude when cross-examined). I feel like anyone who's seen the footage could be on the stand and give just as good information; we all know what happened. These people aren't really saying anything that could sway me one way or the other, and they seem to get easily flustered by defense attorney Nelson.
The witnesses’ testimony thus far has been largely for purposes of admitting evidence. Videos taken by bystanders, security cameras on the street, body-worn cameras from the officers. True that most people who have seen the video could have given a similar description, but they didn’t take the video and cannot testify to its reliability and, thus, they cannot be used to get the evidence admitted.
I also don’t really understand what about this should be creating sympathy for the defense. These types of witnesses are part and parcel of every trial and witnesses get combative fairly often when cross-examined about, for example, what they don’t know or didn’t see or can’t actually conclude. This is just...run of the mill trial stuff. If anything, the fact that Nelson so easily flusters them (though I disagree he was flustering witnesses often, it was just every once in a while) means the defense is probably doing better than you think. It means he’s poking annoying holes in what some witnesses thought, assumed, or concluded. This may not mean anything ultimately, but clearly the defense had an attack plan.
Onto the testimony. Here are some of the more fun/awkward/notable, though not necessarily consequential, highlights thus far:
-One of the first witnesses was Donald Williams, an MMA fighter who happened to be walking by as the Floyd incident occurred. Nothing major really happened with his testimony, though he was granted some leeway to give expert testimony as to the choke Chauvin had Floyd in. Mostly, it was just entertaining to watch him and the defense attorney, Eric Nelson, duke it out.
-Another on-scene witness was Genevieve Hansen, an off-duty firefighter who also happened to be walking by at the time of the incident. She got into a couple small battles with the defense, leading to the first serious admonishment from the judge to a witness at about 3:30 in this video.
-The final moment I’ll list here is from Charles McMillan, another bystander. After a few minutes of mostly foundational questions and normal and even slightly charismatic responses, the prosecution played the beginning of the incident for McMillan and he basically fell to pieces. He seems like a sweet man so I felt bad for the guy. You can tell by his actions on scene that he was trying to help, but it was just not to be.
Now for the more consequential stuff. The witnesses I expect the media are latching onto thus far are Sgt. Ploeger and Lt. Zimmerman, who testified on Thursday and into Friday. Both condemned Chauvin’s actions, though Ploeger’s condemnation was relatively minor imo. The money quote is on re-direct when he said “[w]hen Mr. Floyd was no longer offering up any resistance to the officers they could have ended their restraint,” (emphasis mine), and then he affirmed that “no longer offering up any resistance” meant after Floyd was handcuffed, on the ground, and no longer resisting. A condemnation of a sort, but not the kind of thing that will, on its own, make much of a difference in the outcome imo.
Lt. Zimmerman was much stronger in his condemnation. He testified that Chauvin’s placement of the knee on Floyd’s neck for so long after getting him to the ground was “totally unnecessary” and “uncalled for,” and that he saw no reason to believe the officers should have felt they were in danger, and that the restraint should have stopped once Floyd was on the ground and handcuffed. The defense rebutted by challenging how long it’s been since Lt. Zimmerman has had to use force himself, how much use of force training has changed since 1985 when Zimmerman joined the Minneapolis police, and that he does not train individuals in use of force training, but I don’t know if that’s going to help much. Getting a lieutenant with 35 years of experience as an officer to condemn your actions with zero hesitation is going to weigh on the jurors’ minds quite a bit.
One last thing I want to bring up is the body-worn camera footage from before the bystander footage that went viral—specifically the footage from Officer Lane. I don’t know if it had been released before the trial but I know I hadn’t seen it, and it’s definitely worth a watch. First, Officer Lane approaches Floyd as he is in a parked car. As Floyd opens the door, he is immediately kinda histrionic (and hardly ceases being histrionic throughout the whole encounter) about the officers and, presumably because he does not comply with the request to show both hands, Officer Lane pulls his gun out (~1:30 in the linked video).
Lane holsters his gun shortly afterwards, but for the rest of the video the interaction between Floyd and police can only be described as incredibly annoying. Between the constant, fairly easy requests to, say, show his hands that are basically ignored, to Floyd’s almost-incoherent rambling, to the eventual absolute refusal to sit in the squad car (sprinkled with the occasional “I can’t breathe” looong before anyone applied any kind of hold), it’s no wonder this police encounter went horribly wrong.
I would never say that Floyd deserved what happened, but...jesus fuck man. This encounter was pure insanity/stupidity/drugs. I can’t say I know what would have been the proper thing for police to have done that day with an obviously high and noncompliant George Floyd, but there were plenty of opportunities for this to have never happened. If Floyd had cooperated at any point during the roughly 4 minutes (in the linked video, from about 7 minutes in until 11:20) that police attempted to sit him in the squad car, we would have never heard his name. Floyd would have been charged with forgery or some similar crime, possibly resisting arrest, and maybe a tad more if they found drugs in the vehicle after impounding it, and he would likely have gotten some fairly minor punishment (in the grand scheme of things). Instead, his punishment is eternal.
Do not resist the police when you are arrested. It sucks, your life may take a huge hit, and it may be unfair, but it isn’t worth what happened on Memorial Day 2020. Live to fight another day. And don’t do drugs. Okay, don’t do the wrong type of drugs.
I have a lot more I want to write about but this is already getting long, so I’ll try to fit the other stuff in in future posts. Ultimately, it is still way too early to predict what’s going to happen, so hopefully we get more consequential witnesses (i.e., fights about the autopsy and Floyd’s pre-existing health conditions, as well as better experts on police use of force in this type of interaction) this week.
Derek Chauvin Trial Week 5
This week was absolutely loaded with important testimony--everything from the Minneapolis Chief of Police, several experts on police training and use of force, to the doctor who pronounced George Floyd dead, to several doctors of different specialties testified this week. This week was so chock full with important information, in fact, that I’m going to have to disappoint anyone hoping for a thorough review of the evidence; there was just too much from too many witnesses this week (and, on a personal note, I was really busy this week at work and spending time with my girlfriend which significantly cut into the time I would usually set aside for this) to give a full, worthwhile breakdown of the evidence thus far.
So, instead of the normal distillation, I’ll give a summary of my thoughts and feelings through week 2 of testimony, having seen all but one witnesses' testimony (I have yet to finish Dr. Blake). I also think this is appropriate because I am not an officer or a doctor, so essentially I’m in the same situation as the jury; I’m being told a lot of highly technical information that I could not possibly criticize or analyze based on my knowledge and experience, so I basically have to take the info as it comes. Prior to this, my legal knowledge/experience came in some handy in describing the case to that point--but this week, legal knowledge really did not come into play as much as during voir dire or the first week of testimony.
So what is the general takeaway? Well...honestly I think the prosecution did a tremendous job building their case this week. Medaria Arradondo, the Minneapolis Chief of Police, minced no words that he thought what Derek Chauvin did was unreasonable. Sergeant Jody Stiger and others agreed, and Stiger in particular rebutted a common defense refrain that the crowd was a threat.
Then Dr. Martin Tobin, a pulmonologist for roughly 600 years now, took the stand on Thursday morning and he’s been the best witness thus far imo. Through the use of a lot of demonstratives, he thoroughly explained that the hold, not fentanyl, caused George Floyd’s death. His entire testimony is fascinating if you want to watch it, but I feel like the best short distillation of his impact is felt through redirect (which was fantastically done by the prosecution imo), for the first ~4 minutes of the linked video. One fact he brought to my attention that really sold me, personally, was his testimony that Chauvin had his knee upon Floyd’s neck for 3 minutes and 27 seconds after he loses consciousness, and his knee was on Floyd’s neck for an astounding 2 minutes and 44 seconds after one of the officers’ stated that he felt no pulse from George Floyd (I tried to find a good video for this rather than depending on a quote from a website but unfortunately I could not find the precise clip). No matter how you slice it, that seems beyond egregious imo. Tobin was also pretty effective in making defense’s cross very difficult on them, highlighting the expertise difference between him and defense attorney Nelson very clearly in many instances. Also, full disclosure, I have not watch much of Dr. Andrew Baker’s testimony yet so he could have been even more effective than Dr. Tobin, but I imagine his testimony is basically in line with what the other medical experts have testified to.
The defense had some counters to these witnesses, of course, such as the placement of Chauvin’s knee as below the neck and more on the shoulder blades, the lack of physical injuries to Floyd’s neck, the lack of consideration of the meth in Floyd’s system in some of the medical expert’s testimony, and indicating that the crowd was potentially unruly and that had to factor into the officer’s actions. But my overall impression this week is that Chauvin a) acted unreasonably by keeping his knee George Floyd passed the point of consciousness and even past the point of a pulse for almost three minutes and b) the officers’ actions were a ‘substantial causal factor,’ to use the language of caselaw discussing the second-degree murder statute I talked about before, in George Floyd’s death. Though I am still open to the defense changing my mind.
I want to add something in closing. First, I think it is valuable to have multiple minds working on a problem to get nearest to the truth, as you would with a jury. Second, in my experience with trials and talking to other attorneys, one uniting theme I’ve found is that you can never quite be sure what the jury is going to do. I’ve talked to hundreds of jurors post-trial and gotten their view, asked what led to their decision, etc. I find their responses fascinating, and routinely the evidence they share that led to their decision I either did not anticipate would matter to them or was a fact I did not even catch. I can only imagine in a trial with this much information that the inability to predict what they will hang onto increases substantially. So, while I do not think I can say what the jurors will find the most convincing information (as we are now at a stage where the most pertinent information is coming out), I think a team of people might just be capable of it.
So let’s all be jurors. I recommend people chime in with what they thought was important from this week and why it will add to the outcome of this trial, because there was just so much to analyze and a community effort may be the best way to get to the truth. Maybe, with enough perspectives of what the most consequential information presented is, we can more or less match what the jurors themselves think is the most consequential information.
Finally, in an effort to sorta keep up with this stuff better, I will probably post about the trial more frequently than once per week.
P.S., this case involves an intense situation and a lot of graphic images and testimony, but I think you will all agree that the most graphic image yet was Dr. Bill Smock’s hair I mean what the fuck even is that???
Derek Chauvin Trial Week 6: All the Evidence is In
Home stretch, folks. The prosecution rested Monday and the defense rested Thursday morning. The judge sent the jurors home for the weekend instead of going into closings because a) the jurors will be sequestered during deliberations and the judge did not want to ruin their weekend like that and b) the judge wanted to give each side more prep time for their closing arguments. Also, I’m sure there was a lot of fighting about jury instructions on Thursday and into Friday, but as far as I know, we were not privy to that.
However, if anyone’s interested, here’s the proposed jury instructions from each side from back in February:
Each are mostly the same, with some minor differences that I’m sure each side fought over gallantly late last week. Hopefully we will get to hear the final instructions read into the record before the jurors officially start deliberations sometime late Monday morning or early afternoon.
Quick recap of the final week of testimony:
We heard a bit more from the prosecution and Dr. Jonathan Rich that Floyd died from cardiopulmonary arrest (i.e., the heart and lungs stopped) caused by low oxygen levels, which were caused by the prone restraint by the officers and positional asphyxia. Dr. Rich also testified that no “primary cardiac event or drug overdose” led to Floyd’s death; in fact, he believed Floyd had a fairly strong heart and estimated that Floyd had a strong tolerance for opiates and the Fentanyl levels in Floyd’s system at the time of his death were fairly low for someone with such a tolerance.
The final major prosecution witness was University of South Carolina Law Professor and former police officer Seth Stoughton, who testified that, under Graham v. Connor, Chauvin’s use of force was unreasonable. However, unlike most of the medical experts from the prosecution (who I believe came off very reasonable and believable), I felt he came off too academic and unrealistic. Even with his background as a police officer, his analysis seemed too rigid and lacking applicability to real life, and he also struggled to give the defense anything, disagreeing with even the most mundane questions at times, which I don’t think jurors will appreciate.
Then the defense put on their case-in-chief--a meager 2 days of testimony compared to the 11 or so by the prosecution (this is typical, though; the prosecution’s case is almost always longer, and usually quite a bit longer, than the defense’s). The defense presented two primary witnesses; one for use-of force training and the other for medical expertise.
The use-of-force expert was Barry Brodd, a former police officer for nearly 30 years. He testified that Chauvin’s use of force was objectively reasonable especially in light of the forming crowd and Floyd’s resistance. He also testified that it is reasonable for officers to escalate the force required to restrain a suspect, and the prone restraint itself is not even a use of force at all. The defense countered that escalating force is not part of Minneapolis police policy and that, by Brodd’s own standard, Chauvin’s actions were most definitely a use of force.
The final major witness was Dr. Fowler, who testified that George Floyd died of a sudden cardiac arrhythmia from his heart disease during the restraint. His heart disease, in combination with the fentanyl, methamphetamine, exposure to vehicle exhaust, and his paraganglioma, all combined to cause his death.
Also, it probably won’t surprise anyone, but Chauvin opted not to testify.
So, looking back at the crimes that I previously defined (now using the above jury instructions because that is what the jurors will be getting for deliberations), and now that we have all the evidence, do you believe:
George Floyd died (gotta be honest, I’m pretty sure this element is in the books).
Derek Chauvin caused George Floyd’s death.
i. “To cause” means to be a substantial causal factor in causing the death. The defendant is criminally liable for all the consequences of his actions that occur in the ordinary and natural course of events, including those consequences brought about by one or more intervening causes that were the natural result of the defendant's acts. The fact that other causes contribute to the death does not relieve the defendant of criminal liability. ii. However, the defendant is not criminally liable if a “superseding cause” caused the death. A “superseding cause” is a cause that comes after the defendant's acts, alters the natural sequence of events, and produces a result that would not otherwise have occurred. An action that occurs before the defendant’s conduct and is not the sole cause of the death does not constitute a superseding cause.
Derek Chauvin committed (or attempted to commit) third-degree assault at the time of George Floyd’s death. The elements of third-degree assault are:
i. Derek Chauvin, acting alone or aided by others, assaulted George Floyd. I. “Assault” means the intentional infliction of bodily harm upon another. II. “Bodily harm” means physical pain or injury, illness, or any impairment of a person's physical condition. III. “Intentional infliction of bodily harm” means that the defendant intentionally applied force to George Floyd without George Floyd’s consent, and that this physical act resulted in bodily harm. This requires proof that the defendant’s application of force to George Floyd was not accidental. It does not require proof that the defendant intended to cause bodily harm or violate the law, and it does not require proof that the defendant knew he would cause bodily harm or violate the law. ii. Derek Chauvin, acting alone or aided by others, inflicted substantial bodily harm on George Floyd. I. “Substantial bodily harm” means bodily harm that involves a temporary but substantial disfigurement, causes a temporary but substantial loss or impairment of the function of any bodily member or organ, or causes a fracture of any bodily member. A temporary loss of consciousness constitutes substantial bodily harm. It is not necessary for the State to prove that the defendant intended to inflict substantial bodily harm, but only that the defendant intended to commit the assault.
George Floyd died.
Derek Chauvin caused the death of George Floyd. Cause has the same meaning as felony murder.
Derek Chauvin's intentional act that caused the death of George Floyd was eminently dangerous to other persons and was performed without regard for human life. Such an act may not have been specifically intended to cause death, and may not have been specifically directed at the particular person whose death occurred. But in order to find this element has been satisfied, it must have been committed in a reckless or wanton manner with the knowledge that someone may be killed and with a heedless disregard of that happening.
George Floyd died
Derek Chauvin, acting alone or aided by others, caused the death of George Floyd by culpable negligence, whereby the defendant created an unreasonable risk and consciously took a chance of causing death or great bodily harm. Again, cause has the same meaning as felony murder.
i. “Culpable negligence” is intentional conduct that the defendant may not have intended to be harmful, but that an ordinary and reasonably prudent person would recognize as involving a strong probability of injury to others. Culpable negligence is more than ordinary negligence or gross negligence. It is gross negligence coupled with recklessness. “Recklessness” is a conscious disregard of a substantial and unjustifiable risk of death or great bodily harm to others. The defendant, however, need not have intended to cause harm.
ii. “Great bodily harm” means bodily injury that creates a high probability of death, or causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.
HOWEVER: REASONABLE USE OF FORCE
i. State proposed use of force instruction:
I. The statutes of Minnesota provide that no crime is committed, and a police officer’s actions are justified, when the police officer uses reasonable force in the line of duty in: a. effecting a lawful arrest; b. the execution of legal process; c. enforcing an order of the court; or d. executing any other duty imposed upon the police officer by law. II. As to each count or defense, the kind and degree of force a police officer may lawfully use in executing his duties is limited by what a reasonable police officer in the same situation would believe to be necessary. Any use of force beyond that is not reasonable. III. To determine if the actions of the police officer were reasonable, you must look at those facts known to the officer at the precise moment he acted with force. You must decide whether the officer’s actions were objectively reasonable based on the totality of the facts and circumstances confronting the officer, without regard to his own state of mind, intention, or motivation. The reasonableness of the use of force depends not only on the facts and circumstances confronting the officer at the precise moment he used force, but also on whether the officer’s own conduct during the incident unreasonably created the need to use such force. IV. The defendant is not guilty of a crime if he used force as authorized by law. To prove guilt, the [State] must prove beyond a reasonable doubt that the defendant’s use of force was not reasonable.
ii. Defense proposed use of force instruction:
I. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer at the moment he is on the scene, rather than with the 20/20 vision of hindsight. The reasonableness inquiry extends only to those facts known to the defendant, and not the other officials on the scene or their perception or preference of what should have occurred, at the precise moment the defendant acted with the force he did. The determination of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation under circumstances that are tense, uncertain, and rapidly evolving. In considering the reasonableness of the use of force, the jury may consider whether the force was applied in good faith by the defendant.
My prediction: Derek Chauvin is guilty of felony murder and second-degree manslaughter. He will only be sentenced for the felony murder charge. His actions--keeping the knee on George Floyd’s neck past the point of consciousness and even knowingly for nearly three minutes past the lack of a pulse, combined with the other officer’s hold--was a substantial causal factor in George Floyd’s death beyond a reasonable doubt. Further, Chauvin assaulted Floyd at some point during the length of his hold, which I would agree was originally reasonable, but became definitively unreasonable about 3 minutes before the paramedics arrived when George Floyd lost consciousness. Finally, Chauvin should have known, as a reasonably prudent person would, that his conduct had a strong probability of injury to George Floyd, and he consciously disregarded the risk that he would cause great bodily harm to George Floyd. However, Chauvin is not guilty of third-degree murder because his actions were not generally dangerous to other persons.
One last thing to note, though: I am a little surprised, in hindsight, that so many prosecution witnesses were called. The amount of expert witnesses testifying either that Chauvin’s use of force was unreasonable or not a part of MPD training, as well as the witnesses testifying to the medical causes of his death, seemed excessive/cumulative to me. I have to wonder if my conclusion, and possibly the jurors’ as well, is partly informed by just how many people testified for the prosecution vs. the defense.
Closings should begin this morning, and I expect a verdict some time this week. Let’s fucking go!!
Update The judge read the jury instructions this morning and I wanted to make a clarification. In the depraved-heart murder elements it states that Chauvin's "intentional act that caused the death of George Floyd was eminently dangerous to other persons and was performed without regard for human life." The judge clarified this morning a little further that "eminently dangerous to other persons" means it had a high likelihood of causing death, not that the act directed towards George Floyd was dangerous to other people, as the proposed instructions seemed to indicate. I.E., just because the act was directed at George Floyd and George Floyd alone does not mean Derek Chauvin is not guilty of this charge.
EDIT: THE VERDICT IS IN
After ~10.5 hours of deliberations, the jury found Derek Chauvin guilty on all 3 counts. Will probably write something up later re: sentencing and possible appeal issues. Sentencing is scheduled for 8 weeks out, but no exact date yet. Chauvin is remanded (thus will spend the time between now and sentencing incarcerated).