Comments on the George Floyd Trial

 

April 21, 2021

I have some questions, and some observations about the end of the George Floyd Trial (4/20/21)

The jury concluded that Minneapolis Police Officer Derek Chauvin was responsible in part for the death of George Floyd.

Under Minnesota law, applicable to the Floyd case, Second degree murder is charged when someone "...causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense...". The requisite felonious act of which Chauvin is accused is "committing or attempting to commit felony third-degree assault" which in Minnesota is defined as the "intentional infliction of substantial bodily harm."

Third Degree murder is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life."

Second-degree manslaughter charge alleged Chauvin caused Floyd's death by "culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm."

Central to all of the charges is the element of causation, or that Chauvin was a substantial causal factor in Floyd's death.

The question is this: By what legal theory, or principle, does the state stack all those charges, which are (in my opinion) minor variations of a single action by a single perpetrator, against a single victim, at a single point in time and place.

In my experience, (admittedly limited) the judge instructs the jury at the end of the trial that if the prosecution's case in chief is not proven beyond reasonable doubt, the jury may still find the defendant guilty of one or more lesser charges.

I've never seen this happen before.

A felony is required for the conviction of 2nd degree murder. The requisite felonious act of which Chauvin is accused is "committing or attempting to commit felony third-degree assault" which in Minnesota is defined as the "intentional infliction of substantial bodily harm."

BUT... if the placement of a knee on the upper back/ shoulder (Chauvin's knee was NOT on Floyd's neck in any of the footage I have seen) is an approved method of restraint in most police departments, then what is the likelihood that it represents an ascertainable risk of "substantial bodily harm"? Said another way, if it was known that such a move would place a suspect at risk of substantial bodily harm, IT WOULD NOT BE APPROVED as a restraint method. Since that is an essential element of the 2nd Degree Murder charge, that count should have failed on those grounds.

A similar argument could be made for the Third Degree murder, which in Minnesota is when one is "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." IF the form of restraint use by Chauvin is approved by a significant number of police agencies, then by the same logic, then how can it be supported that Chauvin's conduct was "imminently dangerous"? There IS a case to be made that it was not the METHOD per se, that Chauvin used, but rather the length of time which he deployed that method. A "good" (approved) method might be justified for two, three, or even four minutes, but at some point that method might become unacceptable. A baton might be used to strike a knife-wielding assailant but the same baton used repeatedly after the assailant is disarmed, would be an excessive use of force. A strong case can be made (I think) that this was such an example.

That only leaves standing the final charge; 2nd degree manslaughter. Even then, the question is not the method, but the duration. The standard would have to be what the "reasonable, trained, police officer" would deem reasonable. In this case, other cops testified that Chauvin's use of this technique was excessive. That's pretty damning testimony which would lead a reasonable "non-cop" to find Chauvin guilty of the 2nd degree manslaughter charge.

Here's something that probably needs to change. There is a persistent notion that if you can talk, then are NOT having "too much" difficulty breathing. If you can talk, you can breathe.

Reliable, expert testimony in the Floyd trial instructs us that that particular piece of "common knowledge may, in fact NOT be true.

On 25 May 2020, during the actual arrest, George Floyd pleaded at least 16 times, “I can't breathe.” One officer in attendance nonetheless told bystanders, “He's talking. He's fine”.   (source: https://www.acpjournals.org/doi/10.7326/M20-4186 )

Police have long been taught that if/when a person in custody is complaining of not being able to breathe, they may be telling the truth. (I say MAY be, because people in custody will say anything to try to escape custody).

Possibly, the myth that the act of speaking indicates the ability to breath may come from standard first aid training for victims of choking. But the point here is, that it is NOT "common knowledge" so it is not therefore "common sense" to let somebody up from the position of control on the ground- something that accusers of Derek Chauvin (and other officer's similarly accused) have bandied about. (i.e. the nine-year girl to whom is attributed great wisdom and insight when she told Chauvin to "Get off of him".) If common sense is a counterpart to common knowledge, then it might be reasonable for officers to doubt Floyd's claims. He was, after a felon on drugs, resisting arrest. (A very large felon, at that).

But given the publicity of this trial and the outcome for Derek Chauvin, police departments and police training academies all over the world will be altering their training with respect to any restraint methods that involve the detainee's respiratory functions. This is a GOOD thing.

I think the defense team may have missed the boat however by not making the point that prior to this, we (police) may not have had all the information we needed, and moreover, MAY have received improper training based on incomplete understanding human physiology. What, if any, impact could/should that have on Chauvin's conviction?

Another important lesson that needs reinforced is that politicians must exercise self-discipline and refrain from commenting on cases that are being investigated or cases that are in the trial process. Rep. Maxine Waters on Saturday night (4/17/21) called for protesters to "stay on the street" and "get more confrontational" if former Minneapolis police officer Derek Chauvin is acquitted in the killing of George Floyd. "We've got to stay in the street and demand justice," Waters said to reporters, according to video posted on social media. (Source: https://www.cnn.com/2021/04/19/politics/maxine-waters-derek-chauvin-trial/index.html)
Shaun King, the opinion writer and Black Lives Matter activist, agrees. Under the headline “America will riot if Derek Chauvin isn’t convicted for killing George Floyd,” King wrote: “Yes, Dr. (Martin Luther) King said that riots ‘are the language of the unheard,’ but hear me now – if Derek Chauvin is not convicted of some degree – first, second or third – of murder, if he is not held accountable in the court of law, a reckoning is going to befall this country one way or another. And it should.”  (Source: https://www.azcentral.com/story/opinion/op-ed/greg-moore/2021/04/03/if-derek-chauvin-acquitted-or-guilty-will-there-riots/4823203001/)

Justice is never served when procedures are not followed, or relevant evidence is ignored, or juries are unduly influenced, as is certainly the case with the Floyd trial. Emotions must be checked and reason must rule the day. Any time a trial becomes a media circus, or the innocence or guilt of the accused is the fodder of media elites, the rule of law becomes trashed and none of us are safe.  The Criminal justice system will not, and CANNOT work effectively if it must give way to careless, inflammatory, performances by politicians and media folks. This represents, in my opinion, the collapse of our republic.