Can Derek Chauvin receive a fair trial on the murder charges he faces over George Floyd’s death? It’s a fair question considering the nationwide public anger and now hyperpoliticized context of this tragedy.
Many would be happy to subject Chauvin to a French Revolution-style terror court and see him rapidly carted off to the guillotine. If conservatives have been too uninterested in police reform, there is also a certain liberal hypocrisy here. The Left appears to have far less interest in Chauvin’s right to due process than it does for senior al Qaeda terrorists.
But even as we lament Floyd’s slow and painful demise, we should care that the process of law Chauvin appeared to deny Floyd is granted to him. As painful as it will be for some, that expectation is central to democratic justice.
Even then, convicting Chauvin on any of the three killing-related charges he faces will not be easy.
Minnesota Attorney General Keith Ellison, who is leading the charge in prosecuting Chauvin, aims to suggest otherwise. Ellison, a politician who promotes himself as being to the left of the mainstream Democratic Party, is likely in his present office as a stepping stone to the governorship. Ellison’s rhetoric reflects his interest in being both politician and prosecutor, a Robespierre for the people’s anger. He is promising results.
Yet Ellison is a smart guy. Even as he introduced a new second-degree murder charge against Chauvin and aiding and abetting charges against the three other attending police officers, Ellison knows that getting a conviction will be difficult. Hence, the prosecution is hedging its bets, with Chauvin now facing three charges on Floyd’s death: second-degree murder, third-degree murder, and second-degree manslaughter with culpable negligence.
Proving each charge will pose its own challenges.
Convicting Chauvin of second-degree murder will require the jury accepting that while Chauvin did not intend to kill Floyd, he did so while committing a felony involving the use of force. While kneeling on someone’s neck for nine minutes might seem like a felony, it is not per se regarded as a felony assault by Minneapolis authorities. As NBC News notes: “The version of the Minneapolis Police Department’s policy manual that is available on-line, however, does permit the use of neck restraints that can render suspects unconscious, and the protocol for their use has not been updated for more than eight years.”
Other police forces also employ kneeling on people’s necks, with the understanding that it is a rare but necessary tool to prevent assaults such as spitting or outnumbered officers being overwhelmed. This context will be especially useful to the defense of three other officers who are now charged with aiding second-degree murder.
How about the third-degree murder charge?
The Minneapolis police record of kneeling on suspects’ necks also poses problems here. A conviction of third-degree murder will require the prosecution to convince the jury that as he kneeled on Floyd’s neck, Chauvin was “evincing a depraved mind, without regard for human life.” Considering Floyd’s violent criminal record and the fact that he resisted arrest in this case (although apparently without violence), Chauvin’s defense will probably claim that his conduct was not depraved but rather a reflex in the action of the moment. I am not defending that line of argument, simply stating its likely application.
Then, there’s the second-degree manslaughter charge, which carries a maximum 10-year prison sentence.
This will require the jury being convinced that Chauvin took an “unreasonable risk, and consciously” took the risk of “causing death or great bodily harm.” Again, the defense will likely focus on Floyd’s violent past here, claiming that Chauvin chose to take the actions he did fearing his own vulnerability otherwise. They will likely point to autopsy findings of Floyd’s arteriosclerotic heart disease and high blood pressure as the antecedent causes of his death.
This is not to say that the prosecution has a weak case. Consider two points.
First, the fact that Chauvin was supported by three officers from the moment he started kneeling on Floyd’s neck. The prosecution will assert that this backup provided Chauvin with the opportunity to use less aggressive control measures. Second, there’s the fact that Floyd specifically and repeatedly warned that he couldn’t breathe. Video shows that when Floyd is asked, “What do you want?” Floyd responds, “I can’t breathe. Please, the knee in my neck.” The prosecution will use this evidence alongside the fact that Chauvin continued to kneel on Floyd for minutes after he fell unconscious and video showing Floyd offering to comply if Chauvin removed his knee. They will say it proves that Chauvin acted to hurt rather than control Floyd.
Ultimately, however, we should not expect this trial to deliver a quick conviction. There is a chance that Chauvin and his fellow officers may be acquitted on all charges.
