The Brutal Cynicism of the George Floyd Settlement

            The utter cynicism of the $27 million settlement of the George Floyd case is breathtaking. At the very least, there ought to be a public hearing to determine whether the criminal charges against Derek Chauvin should be dismissed.

           Yes, Mr. Floyd died in police custody. It’s an open question whether the police caused the death, however. Oh, I know, Officer Derek Chauvin’s knee was upon Mr. Floyd’s neck as Mr. Floyd gasped “I can’t breathe.” The trouble is, Mr. Floyd was saying that long before officers laid a hand on him, and there is no medical evidence of an occluded airway.

           Just why Mr. Floyd died and what caused his death is the centerpiece of a criminal trial taking place now, in downtown Minneapolis at the Hennepin County Government Center. This is a fact undoubtedly well known to the members of the Minneapolis City Council, especially since security had to be expensively beefed up at the courthouse prior to trial. Jury selection began last week; evidence is set to begin on March 29.

           So what possessed the City of Minneapolis to settle a wrongful death action with Mr. Floyd’s estate last week? Did any of the city council members stop to think that a settlement in the middle of jury selection just might have an impact on the fairness of the trial? I'll bet they did, and they knew exactly what they were doing -- they tried to sit a thirteenth juror, one voting guilty, on the panel.

            Shame on the City of Minneapolis.

            The civil settlement resolved claims that Minneapolis police officers were legally responsible for Mr. Floyd’s death. One of those officers is on trial now – Derek Chauvin – charged with lesser forms of murder. The city’s decision to pay out an eye-popping sum to Mr. Floyd’s representatives may come with the standard disclaimer that the parties do not admit liability, but let’s not place too much weight on formalities: the city’s payment of $27 million is an admission of something. Jurors may well call it guilt, and they may well pin some of that blame on Mr. Chauvin.

           The Chauvin legal team is solid, if cautious.

           The team should have filed a motion to dismiss within hours after the settlement was announced. Here’s why.

           Ordinarily, parties are prohibited from making public statements that carry with them a substantial risk of undermining a fair trial. Had the prosecutors in this case announced the settlement, the prosecutors would be in hot water.

           But it is the State of Minnesota that is prosecuting Mr. Chauvin through the Hennepin County District Attorney’s Office. The state is not the city of Minneapolis; neither is Hennepin County the City of Minneapolis. In theory, then, the city was free to act whensoever it wanted and to say what it liked: It is not a party to the litigation after all.

           That’s a theory of plausible deniability that ought to be put to the test of an evidentiary hearing.

            It is inconceivable that millions of dollars were spent battening down the hatches in Minneapolis in anticipation of the Chauvin trial without numerous joint meetings between municipal, county and state officials. It defies logic that the city acted to settle the Floyd case without consulting state and county officials. The prosecutors in this case undoubtedly knew, and most likely condoned, settlement of the sum during trial. Their purpose is apparent: they’ll need all the help they can get to obtain a conviction here, so why not throw a little chum into the waters of public opinion.

           And the sum paid?

           Colleagues of mine, folks who try personal injury cases for a living, were stunned. Say what you will about George Floyd, but a conventional analysis of lost wages, pain and suffering, etc., does not support the award. What to tell the families of those Minnesotans who die lingering deaths as a result of the misconduct of others, folks without prison terms for violent crimes in their past – your lives don’t matter, at least they don’t matter as much as Mr. Floyd’s?

           No civil verdict finding Minneapolis liable for Mr. Floyd’s death would have yielded a verdict anywhere near this sum. First, you cannot, as a matter of law, obtain punitive damages against a municipality, so to the extent that the sum given reflects a desire to punish and deter the city, that simply isn’t cognizable. Had the case been tried and a jury gone as wild as did the Minneapolis City Council, a judge would have been asked, and would have been required, to reduce the verdict, a process known as remittitur.

           The settlement is simple cynicism. It undermined the presumption of innocence in a criminal trial intended to help determine whether legal fault exists at all. It was engaged in with the consent or condonation of prosecutors who knew better than to poison a jury pool during jury selection. And the sum is stratospheric, an amount disproportionate to other cases that will come before the courts and so high as to shock a judicial conscience after trial.

            We have trials for a reason in this country. They assess guilt and liability. The members of the Minneapolis City Council who approved this settlement ought to face serious questions from their constituents, indeed, where I a resident of that city, I’d research impeachment. I paid $27 million in tax dollars for what, exactly? Why no trial? Who no fact-finding in open court?

            Yes, George Floyd’s life mattered. So does justice.

            Last week’s settlement made a mockery of justice.

            The trial judge in Mr. Chauvin's case should hold hearings to determine whether dismissal of the criminal charges is a necessary sanction. I can smell the rot in Minneapolis all the way on the East Coast. Do you smell it, too?


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