The Chauvin Proceedings Look Like A Show Trial. Wassup?


            I’ve been reading press reports of the Derek Chauvin case in Minneapolis with a gnawing sense that something isn’t quite right. I can’t tell whether Chauvin’s defense seem are understated geniuses or, perhaps, not up to the task. As for the prosecution, it took them four days to get to the point, having wasted, and been permitted to waste, the better part of the first four days of trial presenting irrelevant and immaterial evidence.

           Thus far, the trial has the look and feel of a show trial.

           What’s going on?

           The case is simple. Did Derek Chauvin cause the death of George Floyd? If Chauvin did so, were his actions justified? If Chauvin’s actions merely contributed to Floyd’s death, where they nonetheless reasonable, and therefore excusable?

           Jurors have by now seen a 45-plus minute videotape of police officers arriving to question Floyd about the passage of a counterfeit bill. They entire video – not merely the final portion – sets the scene. It reflects the totality of the circumstances evidence to the officers when they arrived and throughout their encounter with Floyd.

           Video evidence is powerful. It cannot be cross-examined or impeached. A smart lawyer relies on video evidence when he or she can get it.

           The prosecution didn’t simply offer the video, however. That would not serve their case. In the video, Floyd is seen to be paranoid, disturbed, probably intoxicated, perhaps psychotic. He cannot follow simple commands. He resists arrest. He squirms his way out of the back seat of a car. He was a large, muscle-bound man of uncertain purposes. Restraining him on the ground while cuffed was unremarkable.

           So the prosecution tried to reframe the issue by offering lay witnesses who observed the takedown and confrontation. Not one of the witnesses had training in police procedure. One witness, a mixed-martial arts fighter, was permitted to offer his opinion on the level of force used. Strictly speaking, this evidence was neither relevant nor material to the issue the jury needs to decide: were Chauvin’s actions reasonable, and, if not, did they reflect a criminally culpable state of mind.

           I will grant the defense the benefit of the doubt as to this evidence. Perhaps they permitted its admission to show the outrage of the crowd that surrounded the officers as they struggled with Floyd. That would account for not giving Floyd their full attention. If a gathering mob were agitated, officers would understandably be distracted.

           But what about the testimony of the store clerk who handled the suspected counterfeit bill? He was permitted to testify that he felt guilty about what happened to Floyd. Seriously? George Floyd was not thrown in front of a speeding train. The feelings of the witnesses were irrelevant and prejudicial.

            I kept waiting for the cross that never came? How did the witnesses feel when Floyd refused commands to show his hands? When he expressed fears that he would be shot? When a friend of his signaled to officers that Floyd was not right in the head? When Floyd resisted cuffing? When he said he was going to die as he stood near a cruiser? When he complained of claustrophobia before being put in a cruiser? When he said he couldn’t breathe as he sat in the cruiser? When Floyd squirmed out of the cruiser?

           “Did you ever see Mr. Floyd respond in a coherent way to anything any of the officers asked of him?” I waited to hear.

           This was pity party about crowd reaction, a show trial.

           Where was the defense?

           On day four, things started to approach relevance, but even there, the defense lacked focus. One supervisor who reviewed the video said that Chauvin “could” have released his pressure from Floyd’s neck earlier. Chauvin could have done a lot of things – he could have engaged in “catch and release” policing and just let Floyd go as too much trouble.

           The legal question on use of force is not what the officer could have done, but, rather, whether the officer’s response was reasonable under the totality of the circumstances. Asking what could have happened begs the legally significant questions the jury will have to decide.

           All this noise at trial showed a prosecution limping toward first base, an effort to bury the bad news in the video beneath an avalanche of emotion. I’ve tried scores of police use of force cases and I’ve never seen anything like this. To put it mildly: It was a shitshow.

           By the end of day four, the prosecution finally tagged first base. A senior officer in the department testified that Chauvin’s training mandated that he release the force from Floyd’s neck when he became unresponsive. That is probative and damning testimony. This man would have been my first witness were I trying the case.

           The first week of the Chauvin trial was disappointing. The fireworks are to come when medical testimony addresses the issue of causation of death. And, of course, we have yet to hear much from the defense. It has been largely ineffective to date. The lawyers I am talking to who are watching the case keep asking when the defense intends to turn up.

           I’m not that cynical. I think there is a powerful defense to be raised and I will be stunned if Chauvin is found guilty of the second-degree murder.  Officers had a right, indeed, they had the responsibility, to investigate a claim that a counterfeit bill was passed. George Floyd was a suspect. Officers had an articulable suspicion that he was involved. When they sought to question Floyd, Floyd was simply non-responsive, irrational and agitated. Officers weren't required to sing him Kumbaya in an effort to calm him. It was Floyd who upped the ante, requiring an escalation in the force used.

           Should Chauvin have seen that something was seriously wrong once Floyd once he stopped moving? The answer to that question will determine whether Chauvin is found guilty of third-degree murder. That’s an open question on the record developed to date.

           Refreshingly, the trial has not devolved into race-pandering. There is no evidence that Floyd was singled out and mistreated on account of race. Even the prosecution will not be so reckless as to offer that to the jury. The privilege of stirring racial passions goes to activists and pundits.

           We’re weeks away from the end of this case. I wonder if the jury is getting impatient yet, wondering, as they should, whether millions took to the streets last year over this tawdry drama of police officers confronting a deeply disturbed man in a routine call. I can’t help feeling but that we were betrayed last year. George Floyd’s death is no call for racial reckoning; it’s a frank recognition that police officers need better training in dealing with disturbed individuals.          

Comments: (1)

  • Analysis on point as usual
    I’m actually horrified by the coverage on the cable news networks and the statements of the talking heads vilifying Eric Nelson for even trying to cross examine. The news media is treating this like a show trial and contributing to the villification of defense lawyers and potentially prejudicing the jury. The defense is not fighting hard enough to sequester the jurors or seek a mistrial.
    Posted on April 14, 2021 at 8:25 pm by Eric M. Creizman

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