A Minneapolis police officer was quickly fired and charged with murder after the bystander video showed him pushing his knee into George Floyd’s neck while ignoring the Blackman’s exclamation that he could not breathe. But even with the powerful footage, legal experts say the case is not a slap in the face.
The jury’s selection begins Monday in the trial of Derek Chauvin, who is expected to answer two key questions: did Chauvin’s actions cause Floyd’s death, and were his actions reasonable?
“It’s hard not to watch the video and conclude that prosecutors will have no problems with this case,” said Susan Gaertner, the former chief prosecutor in neighboring Ramsey County. “But it’s not that simple.”
Floyd was pronounced dead on May 25 after Chauvin, who is white, pressed his knee against Floyd’s neck for about nine minutes while holding his position even after Floyd became limp when he was handcuffed and lying on his stomach. Floyd’s death sometimes sparked violent protests in Minneapolis and beyond, leading to a nationwide crackdown on systemic racism.
Chauvin is charged with second-degree murder and second-degree manslaughter, and a panel of judges on appeal court ruled Friday that the judge should consider re-instituting a third-degree murder charge he dismissed last year. Three other officers, who have also all been fired, are on trial in August on charges of aiding and abetting second-degree murder and manslaughter.
According to the second-degree murder charge, prosecutors must prove that Chauvin caused Floyd’s death while committing or attempted to commit an offense – in this case a third-degree assault. The manslaughter charge has a lower bar, which should provide evidence that Chauvin Floyd’s death was caused by negligence that created an unreasonable risk, and consciously risked the chance of causing serious injury or death.
Exactly how Floyd died forms an important flashpoint in the trial.
Chauvin’s lawyer, Eric Nelson, argues in court documents that Floyd may have died from fentanyl he consumed, or a combination of fentanyl, methamphetamine and underlying health conditions – not because of Chauvin’s knee on his neck.
But Judge Peter Cahill in the county of Hennepin wrote last fall that prosecutors for the second-degree murder charge did not have to prove that Chauvin was the sole cause of Floyd’s death – only that his behavior was a ‘material causal factor’.
However, defense attorneys unrelated to the case say that all Nelson has to do is raise reasonable doubt in a single juror.
“Though he got stuck under his knee and he yelled, ‘I can’t breathe! I can’t breathe!’ there is an argument that (Chauvin) did not exert pressure and that he was unable to breathe, was due to the drugs in his system, or something like that, or his anxiety, “said F. Clayton Tyler, a leading local defense attorney, said.
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Defense attorneys say it can also not be easy to establish that Chauvin committed the crime – as required for the second-degree murder charge in this case. This is because Chauvin is authorized to use force as a police officer, and his attorneys will argue that his use of force against Floyd was reasonable.
Gaertner said the defense will have a challenge to shift the focus of the jury from the video and the strong emotion it causes. Rather, they will try to focus on the medical evidence and Floyd’s underlying conditions while trying to portray the circumstances of the arrest as ‘justifiable in accordance with police standards’.
Brandt and Tyler said Chauvin would probably have to take the stand to explain why he feels he should keep Floyd for so long. Brandt said he would probably say he followed his training, and that it was necessary because his experience with other suspects under the influence of drugs shows that things can suddenly become volatile and dangerous.
Prosecutors, however, have filed a list of previous cases in which Chauvin used strangleholds or similar restrictions on work. Cahill has ruled that they can only recognize one as evidence: an arrest in 2017 in which Chauvin restrained a female by placing his knee on her neck while she was leaning on the ground.
Cahill also ruled that prosecutors could tell jurors about an incident in 2015 in which Chauvin saw other officers put a suicidal, intoxicated man in a side-recovery position after using a stun gun on him. Cahill said prosecutors could suggest Chauvin was present if a medical professional said the man would die if officers extended the detention.
Brandt said telling the jury about the events would allow prosecutors to know Chauvin’s the right way to restrain someone and give relief, and that he had done it wrong before.
Brandt said the third-degree murder charge could be easier for prosecutors to prove if it is reinstated because they do not have to show that Chauvin is planning to commit assault. Instead, they must prove that his actions caused Floyd’s death, and that they were reckless and without regard for human life.
According to the second-degree manslaughter, Chauvin ran the risk that a reasonable person would have known he could have caused the death. To defend against it, Brandt said, Chauvin could argue that he had used the same grip in the past and did not think it would cause a problem.
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However, Brandt said “the whole thing” against Chauvin is the video that captured the amount of time he restrained Floyd.
“You hear in the video the passers-by, the spectators saying, ‘Dude, he can’t breathe. Let him stand. What are you doing? You’re killing him,’ ‘Brandt said.” I mean, it’s almost like they give play-for-play. “
Tyler said if he were a prosecutor, he would use a still image of Chauvin’s expressionless face from the video and keep it in mind for the jury.
“I mean, the look on his face,” Tyler said. ‘If I were to pursue this case, I would say: I would have that photo up there. You want to show indifference? Just look at him. ‘