The state should prevail in this case, especially in light of the ruling that reinstated the ‘depraved indifference’ murder charge, but it is no sure thing.
Fired police officer Derek Chauvin’s murder trial in the death of George Floyd got underway Monday morning with a very effective opening statement by Minnesota prosecutor Jerry Blackwell.
To be sure, Blackwell had a lot to work with. The centerpiece of his presentation was a video, with accompanying audio, recorded by a bystander as Chauvin pressed his knee onto — at times, seemed to grind his knee into — Floyd’s neck, “crushing, until the life was squeezed out of him,” the prosecutor asserted.
“Nine-two-nine,” Blackwell repeated several times, referring to the nine minutes and 29 seconds that concluded the encounter. It was simultaneously captivating and excruciating audio-video evidence: Floyd pleading with Chauvin to stop; stating again and again — 27 times, according to the prosecutor — that he was having trouble breathing; crying out for his mother, crying out in pain, and crying out, “they’re gonna kill me.”
Knowing the tragic end of this episode, it was heartbreaking to watch. Yet, in its way, it paled in comparison to the horror of the final four-and-a-half minutes highlighted by the state. That is when Floyd’s life seemed to slip away before our eyes.
Blackwell recounted that Floyd’s speech became halting before falling silent. He was completely passed out — no breathing, no pulse. Yet, the prosecutor repeated, Chauvin would not let up, and would not get up.
Bystanders, including off-duty firefighter Genevieve Hanson (who will testify), asked, insisted, and finally demanded with increasing desperation that Chauvin remove his knee from Floyd’s neck, that they roll him over on his side so he could breathe. They kept pointing out that Floyd was “not even resisting arrest” and was “not responsive.” Still Chauvin would not let up and would not get up.
Even when the paramedics finally arrived and began to check on Floyd, Chauvin maintained his hold on Floyd’s neck for yet another minute.
Beyond the video and audio evidence, Blackwell foreshadowed three categories of critical evidence.
The first is witness testimony, to some of which I’ve already alluded. The prosecutor struck a chord when he observed that the jury would hear from a very diverse collection of witnesses — young and old, male and female, people of different races and backgrounds. Yet, all of them had one thing in common: They happened upon what was going on between George Floyd and the police, and quickly sensed that something was deeply, deeply wrong.
These people included Jenna Scurry, the 9-1-1 police dispatcher who watched the incident unfold from Minneapolis surveillance cameras. She was so puzzled over Chauvin’s neck-hold over a sustained time that she asked whether the video had malfunctioned into a freeze-frame mode. No, she was told, and thus she realized that Chauvin was planted, for minutes on end, on Floyd’s neck. So, she did something she’d never done before: As Blackwell put it, she “called the cops on the cops.” That is, she reported potential police misconduct to her supervisory sergeant. And she was not alone in frantically notifying the police of what police were doing to Floyd; some of the bystanders did, too — and many of the bystanders pleaded with Chauvin’s three fellow cops on the scene (all of whom have been charged and will be tried later this year) to stop Chauvin.
Later in the trial’s opening session, Ms. Scurry was the first prosecution witness.
The second category of evidence, and one that appears to cut strongly in the prosecution’s favor, is testimony regarding police training. Blackwell seemed confident in asserting that experienced police officials, from Minnesota and elsewhere, will explain that what Chauvin did was blatantly excessive, and that he had to know that. This is critical because excessive police force is assault. The state’s theory on second-degree murder is that Chauvin killed Floyd while committing criminal assault.
I do wonder how much of this expert testimony will be permitted in the end by Judge Peter Cahill.
The prosecution expects to elicit a testimonial conclusion from a police use-of-force expert that Chauvin used excessive force. This is a key question of fact in the case. Courts are usually leery about letting the expert draw a conclusion on such an “ultimate” issue. The proper utility of expert testimony is to arm the jury with the standards they must understand in order to judge an issue that is out of the ken of lay people; it is not to, in effect, usurp the jury’s factfinding role by rendering a finding on a matter that is for the jury to decide.
I suppose conclusory expert testimony could be proper, as long as a) there is expert testimony on both sides of the issue, or b) it is made clear, through cross-examination and instructions from the judge, that the jury is not required to accept the expert’s testimony on an ultimate question of fact (or, for that matter, on anything else). But I’d expect the expert testimony, and its proper uses, to be hotly contested.
The final category of vital evidence is the proof on medical issues — the “causation” question, as the prosecutor labeled it. Blackwell strongly signaled that the prosecution does not want the jury thinking too much about George Floyd’s heart. That, of course, signaled that the defense must be planning to place great emphasis on it. And, in fact, Chauvin’s lawyer, Eric Nelson, later confirmed in his opening statement. The defense wants to suggest to the jury that Floyd died from chronic heart trouble, exacerbated by drug use and a clogged artery. As Nelson put it, “The evidence will show that Mr. Floyd died of cardiac arrhythmia that occurred as a result of hypertension, coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body, all of which acted to further compromise an already compromised heart.”
Naturally, the prosecution is downplaying these issues.
Obviously, this harrowing trial will not lend itself to many light moments. But Blackwell has a folksy way about him, so I chuckled in spite of myself when he dismissed a medical report’s description of the cause of Floyd’s death — cardiopulmonary arrest. Translated into English, he quipped, it just means his heart and lungs stopped . . . which means Floyd shares the same cause of death as every person in the history of the human race.
On causation, then, Blackwell’s message was: “You can believe your eyes.” That is, the jury should trust what they see on the video and trust what the witnesses saw with their own eyes. The prosecutor briefly touched on why the state believes the evidence will dispel theories that Floyd died of cardiac arrhythmia, a heart attack, an artery blockage, or a drug overdose. But comparatively speaking, this is the weakest part of the case for the prosecution: It is simply a fact that Floyd did have significant medical and drug-abuse issues. Moreover, there are some differences (of arguable importance) in the conclusions drawn by medical examiners, which the defense will exploit.
It poses an intriguing dilemma for the prosecutors. On one hand, they will be telling the jury to rely without hesitation on the police use-of-force experts; on the other hand, they will be telling the jury not to worry so much about the medical experts — just watch the video and use common sense.
The video evidence, and the fact that Derek Chauvin would never let up or get up during those nine minutes and 29 seconds, will probably be enough to steer the prosecutors through these complications. But they are complications. The state should prevail in this case, especially in light of the ruling that reinstated the “depraved-indifference” murder charge (see my column here). But it is no sure thing.