George Floyd

Jurors Could Not Believe That a Reasonable Officer Would Have Done What Derek Chauvin Did

The guilty verdicts on all three counts reflect the logical force of the prosecution's case as well as the emotional impact of watching the assault on George Floyd.

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"You can believe your own eyes," prosecutor Steve Schleicher told jurors during his closing argument in former Minneapolis police officer Derek Chauvin's murder trial yesterday. "This case is exactly what you thought when you saw it first, when you saw that video."

Schleicher was referring to the horrifying bystander video showing Chauvin pinning George Floyd facedown to the pavement for nine and a half minutes, an incident that provoked nationwide protests against police brutality. The jury's decision to convict Chauvin of all three murder and manslaughter charges against him after deliberating for 10 hours reflects not just the emotional impact of that video but also the logical force of the case the prosecution presented in two weeks of testimony.

While the defense repeatedly speculated about other factors that might have contributed to Floyd's death, including his heart disease and his drug use, there was never any real doubt that he would have survived this encounter if Chauvin had handled it differently. Defense attorney Eric Nelson implicitly conceded as much when he argued, in a pretrial motion, that Floyd "may have survived" if Officers J. Alexander Kueng and Thomas Lane, who arrested Floyd for using a phony $20 bill to buy cigarettes, "had chosen to de-escalate instead of struggle." That suggestion implied that the ensuing use of force killed Floyd.

Nelson's lone medical witness, forensic pathologist David Fowler, rejected the prosecution's argument that Floyd died from asphyxia, describing the cause as a "sudden cardiac arrhythmia." Yet Fowler cited the "very stressful situation" created by the prolonged prone restraint as an important factor, which hardly let Chauvin off the hook.

The prosecution's medical witnesses, including Hennepin County Chief Medical Examiner Andrew Baker, all agreed that the use of force caused Floyd's death. Chicago pulmonologist Martin Tobin explained in detail how being pressed against the pavement by Chauvin's knees and the other officers' hands would have made it impossible for Floyd to breathe properly. Tobin was highly credible and unflappable, and his testimony reinforced the commonsensical inference that a man who complains 27 times that he can't breathe while being squeezed between three cops and the asphalt might actually be having trouble breathing.

Other expert witnesses explained why neither heart disease nor drug use were plausible explanations for Floyd's death. And although Baker did not mention asphyxia in his autopsy report, on the stand he did not rule out the possibility that impeded breathing contributed to Floyd's "cardiopulmonary arrest," saying, "I would defer to a pulmonologist."

To prove causation, the prosecution needed only to persuade the jury that Chauvin's actions were "a substantial causal factor" in Floyd's death. "The fact that other causes may have contributed to George Floyd's death does not relieve the defendant of any criminal liability," Schleicher noted. "He's criminally liable for all of the consequences of his actions that naturally occur, including those consequences brought about by intervening causes." The alternative to concluding that Chauvin killed Floyd was to believe that Floyd just happened to die from other, unrelated causes under Chauvin's knee.

As for whether Chauvin's use of force was justified, several supervisors (including the police chief) and use-of-force experts concluded that it was not. They said Chauvin's conduct violated his training, department policy, and the Fourth Amendment.

Against that judgment, Nelson offered only the testimony of Barry Brodd, a former police officer who preposterously claimed that pinning Floyd to the pavement for nine and a half minutes did not even qualify as a use of force. Brodd also averred that "drug-influenced" suspects "don't feel pain" and "may have superhuman strength"—an old canard with racist roots that police tend to drag out when they are accused of using excessive force.

While Brodd claimed that Floyd was "somewhat resisting" even after he was pinned to the ground, his definition of resistance was broad enough to encompass writhing in pain and struggling to breathe. And even by Brodd's account, the resistance lasted for "a couple of minutes," leaving unexplained the continued use of force during the next seven and a half minutes, when Floyd stopped talking and moving, became unresponsive, seemed to lose consciousness, and stopped breathing.

Even after Floyd no longer had a detectable pulse, Chauvin kept kneeling on him. "How can you justify the continued use of force against this man when he has no pulse?" Schleicher wondered.

Chauvin chose not to take the stand, which would have given him an opportunity to answer that question but also would have exposed him to a potentially brutal cross-examination. Without hearing from Chauvin, the jurors were left with Nelson's description of the factors that figured in Chauvin's thinking, which amounted to little more than fears about what Floyd might have done to pose a threat, as opposed to what he actually did.

"The standard is not what should the officer have done in these circumstances," Nelson said. "Officers are human beings capable of making mistakes in highly stressful situations." But when those "mistakes" go beyond what a "reasonable officer" would do in similar circumstances, the use of force is unlawful. Try as he might, Nelson was unable to persuade the jury that a reasonable officer would have done what Chauvin did.

Chauvin's actions easily fit the definition of second-degree manslaughter, which required showing that he caused Floyd's death "by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm." The maximum penalty for that count is 10 years in prison, but the presumptive sentence under Minnesota's sentencing guidelines is four years.

To prove the second-degree murder charge, prosecutors had to show that Chauvin unintentionally killed Floyd while committing a felony—in this case, third-degree assault. The assault charge, in turn, required proving that Chauvin "intentionally applied unlawful force" and thereby inflicted "substantial bodily harm."

The jurors could have rejected the assault charge, and therefore the felony murder charge, if they were not convinced that Chauvin knowingly used unlawful force. But they clearly thought his conduct went beyond negligence, a conclusion supported by all the testimony that the 19-year veteran failed to follow his training and blatantly flouted department policy. As Schleicher put it, "He knew better. He just didn't do better."

Minnesota law is unusual in not requiring that the underlying offense for felony murder be distinct from the conduct that caused the victim's death. That questionable quirk allows prosecutors to charge an unintentionally lethal assault as murder rather than manslaughter, which dramatically increases the potential penalty. The maximum penalty for felony murder is 40 years, and the presumptive sentence is 150 months, or 12.5 years.

The presumptive sentence for third-degree murder is the same, although the maximum (25 years) is shorter. That count required proving that Chauvin killed Floyd by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." A "depraved mind" means Chauvin showed "reckless and wanton unconcern and indifference."

That seems like a pretty apt description, given the way Chauvin reacted to Floyd's distress, concerned bystanders' warnings that Floyd's life was in danger because he was not getting enough oxygen, Lane's suggestion that Floyd should be rolled onto his side, Lane's observation that "he's passing out," and Kueng's report that he could not find a pulse. None of that information persuaded Chauvin to lift his knee or to perform CPR. Instead he responded with callous indifference.

The third-degree murder charge is legally controversial. Some case law suggests it is appropriate only when a defendant's dangerous conduct did not target any particular individual, as when someone blindly fires a gun into a crowd.

Contrary to that view, former Minneapolis police officer Mohamed Noor, who fatally shot Justine Damond in 2017 after she called 911 to report a possible assault in the alley behind her house, was convicted of third-degree murder (as well as second-degree manslaughter) in 2019. In February, the Minnesota Court of Appeals upheld Noor's conviction, and last month it cited that decision when it ordered Hennepin County District Court Judge Peter Cahill to reconsider his dismissal of the third-degree murder charge against Chauvin. While the Minnesota Supreme Court declined to review the appeals court's order in Chauvin's case, it has agreed to hear Noor's appeal.

Depending on the outcome of that case, Chauvin's third-degree murder conviction may not stand. But that probably would not affect the length of Chauvin's sentence, assuming the felony murder conviction holds up. Both offenses carry a presumptive 150-month sentence, which is what Noor received.

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