Race in America and the Tragedy of George Floyd
By the time the Derek Chauvin / George Floyd case is over, the volume of news coverage on it will be astronomical. The case rivals the O.J. Simpson trial in terms of its national and international fascination, but sadly, it’s far more important, given this terrible point in U.S. history, where racial tension has, for an entire presidential administration, been deliberately amplified and exploited for political purposes.
Rule of law and the equal application of justice to all is the fuel that powers a sustainable society. If these last four years have taught us anything, it’s that our nation has been skating on the edge of having all this break down, and that we remain far from out of the woods, almost two full months into the new president’s term, which features, as it does, a new justice department that seems focused on integrity and impartiality.
During a long drive I took with my wife yesterday, we were able to listen to a 30-minute interview on the upcoming trial, featuring a civil rights attorney and managing partner at The Cochran Firm California, where he specializes in police misconduct cases, and a Chicago-based defense attorney and former police officer.
Here are a few of the highlights of the conversation, and a couple of my own observations:
Causality. The successful prosecution of any criminal case that involves the death of a human being requires conformation, beyond a reasonable doubt, that the defendant’s actions were the cause of the victim’s death. Where this is straightforward when a gun is involved, it’s not completely so in this case, where Floyd’s death could have conceivably come from the interaction of some drug in his system, or something else that accelerated his demise. Yet, having seen the video, I would laugh in the face of a defense attorney who told me that Floyd’s death was caused by anything other than Chauvin’s knee. The defense is sure to find a few expert witnesses to contest this assertion, but it’s hard to believe that they will carry much weight.
Video. Cases like this in which the crime is captured on video and provides jurors with direct observation of the murder makes the defense team’s job far more difficult than it otherwise might have been. In this case, we have high-resolution video of the entire period, 8 minutes 46 seconds, that were required to extinguish the victim’s life. We can see the force exerted on Floyd’s neck (roughly half of Chauvin’s 160-pound weight), the equivalent of 16 building bricks, and the aggressor’s cool nonchalance as his victim begged and screamed in agony in a desperate but unsuccessful bid for help.
Police Training and Acceptable Police Violence. It’s virtually guaranteed that the defense will claim that policing in the real world calls for officers to make snap decisions with huge consequences to all concerned, that police are trained and authorized to use the level of force that they feel is called for at the time, and that Chauvin acted within these parameters. Yet given the graphic nature of the evidence, it’s hard to imagine how this could result in acquittal. Can the defense show that this level of violence is part of the training manual in the Minneapolis Police Department, or that it’s acceptable to torture a detainee to death when any number of other techniques, e.g., a taser, would have brought the situation under control?
The prosecution will, no doubt, call Chauvin’s peers or seniors from the police department as witnesses, who will testify that there was no justification for what Chauvin did, and that they are just as sickened as the rest of America is about the sheer brutality and senselessness of this crime. Will the defense be able to find a relevant witness to testify otherwise? It seems unthinkable.
Putting the Defendant on the Stand. This is always a risky proposition, because a) the defendant may make matters worse for himself, and b) the prosecution then has the opportunity to cross examine. In this case, the experts both agreed that the defense has no other choice than to let the jury hear how Chauvin justifies his actions, his fear, his adrenaline, and other aspects of his state of mind.
Second Degree Murder. One of the difficulties associated with living in a country where each of the 50 states has the obligation to draft its own criminal statutes is that homicides can be treated quite differently from one place to the next. In Minnesota, where the crime was committed and the trial will take place, second degree murder requires either a) intent to kill, or b) an action that resulted in a person’s death that reveals a “depraved heart.”
I would not vote for conviction under the “intent” clause, because I could not say with 100% certainty that Chauvin didn’t mean to remove his knee before it caused Floyd’s death. My wife asked, “OK, so what exactly does ‘depraved heart’ mean?” That’s a good question, and I suppose it’s up to each juror to have a rock solid understanding of the dictionary definition of each of the words, and then vote accordingly. I said, “To me, it means a callous and mean-spirited disregard for the suffering of another person and the consequent inflicting of such suffering, resulting in that person’s death. I’d vote to convict him on that every day of the week. If you asked me to describe a more clear-cut case of murder driven by a depraved heart, I don’t think I’d be able to do that.”
Third Degree Murder. This means killing someone illegally but unintentionally. In most states, it’s called “manslaughter,” and this would be a case of “involuntary manslaughter,” where the defendant is accused of unacceptable and unwarranted violence that accidentally resulted in the victim’s death. Involuntary manslaughter is defined as “a killing that results either from criminal negligence or the commission of a low-level criminal act such as a misdemeanor.” So, if the jury concludes that Chauvin committed misdemeanor (if not felony) battery that resulted in Floyd’s death, that’s third degree murder.
This seems even more open-and-shut than the second degree murder charge discussed above.
Again, it’s hard to imagine a higher profile murder trial. This will take many months to resolve, if only because of the intensity of the attention it will garner all around the globe. This will make everyone involved extremely careful and meticulous, meaning that something that could have taken 10 minutes will now require an entire afternoon.
Speaking for 99+% of Americans, I can only hope that justice is reached, and that we can all proceed to de-escalate racial tensions, recognizing that, at best, that progress will be slow.
