There is no such thing as the police being completely faultless, after all being human keeps us from being perfect. So when it comes to police being on trial, there should not be any particular viewpoint, each case a measure of a singular set of circumstances.
However, the Derek Chauvin trial has badly shaken my confidence in the American judicial system where a visceral jury has been swayed by video and audio sound bites and rendered incapable of discerning fact from fiction.
This conclusion will not be popular with most segments of society, even some cops– for it goes against the grain, it goes against even the middle of the road liberal, it goes against what the mind is perceiving in a few seconds of videotape. This trial was originally framed as a measure of the level of racism in policing, about a white cop and a black innocent. None of that was true either as there was never any evidence ever produced of this case being about race.
The circumstances in the death of George Floyd brought forward three charges against police officer Derek Chauvin; second degree unintentional murder which required proof of the “intentional infliction of substantial bodily harm”; third degree murder which alleged that Chauvin caused Floyd’s death by “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard to human life”; and second degree manslaughter which alleged that 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”.
As most are aware, reasonable doubt is the prosecutorial hurdle which must be climbed and surmounted in all criminal trials both in the United States and Canada.
Unfortunately, for the State and the masses demanding retribution, doubt was in evidence throughout this entire trial; doubt as to the cause of death, doubt as to the intent of Chauvin which was necessary to prove two of the three murder charges; doubt as to the lead up circumstances, and even doubt as to the political motivation of the State Attorneys.
The third degree murder charge which was added at the last minute should have been thrown out with little fanfare, in fact both murder charges should not have been under consideration when one watched and allowed the evidence to unfold. The only charge which should have some examination was the second degree manslaughter.
This case was televised and with the usual hyperbole some media outlets called in the trial of this century. Kindling to the fire of the reflexive cries of racism. Black lives concerned groups were quick off the mark, any confrontation between a white police officer and a black male should be a foregone conclusion. With the aid of pressurized full throated liberal media and a captured television audience the protests began, followed by the rioting and looting.
The activists of the black movement in Minneapolis from the outset, before the trial even started, proclaimed that if “they” do not get a guilty verdict the town will burn to the ground; they demanded not only a guilty verdict but a sentence worthy of murder charges. A life sentence was presumed to be the only way of satisfying this carnivorous crowd.
The usual attention seeking personalities, celebrities and politicos filled the airwaves, before the trial, during the trial and after the trial. The message theme was that there was no need for a trial, the evidence so obviously clear of Chauvin’s guilt. No heed should be paid to the Constitution and the need for due process after all –we have video.
There is only one truth, their single unassailable truth.
The reporting so blatantly slanted that as one followed along, one began to question if you were in fact watching the same trial and the evidence that was being presented. The news photos they released were of Chauvin as he was being booked –dressed in an orange prisoner jump suit, staring straight faced and pale at the camera— Floyd is in civilian clothing, leaning nonchalantly against a brick wall.
Chauvin’s trial began to take on the feel of a political and social lynching.
Chauvin throughout the trial sat erect, disciplined, robotic, attentively writing on a yellow pad of legal paper which never seemed to grow in size. Neatly attired with a mid-level suit and tie, the picture of a cop getting ready to testify. His eyes only visible above his Covid mask, his eyes the only measurable hint of humanity and the emotions laying deep within.
This case also raised some serious questions that should have been asked of the District Attorney’s office and their conduct in this case. They were proven to have withheld evidence, not allowed a witness in the car with Floyd to testify, and have tried to bury the defence with last minute loads of information. They argued against their own Pathologist who performed the autopsy and not satisfied with his findings, began a country wide search for “experts” —an opinion that could aid their public theory.
The case and the circumstances were nuanced and understanding required an open mind to details.
The State attorneys constant mantra from beginning to the closing argument was “believe your eyes”. They were counting on emotions to carry the day, their clear hope was that by playing incessantly a few seconds of Chauvin leaning on the neck of Floyd, that the emotion generated would carry the jurors to only those selected few minutes and away from some of the facts that were problematic.
One must also remember that the City of Minneapolis before the trial started announced a $27 million settlement for the Floyd family. A historic amount. The timing of this was at the very least unethical and jeopardized finding an impartial jury. The defence rightly asked for a change of venue and the sequestering of the jury. All were denied despite the crescendo of media and public voices speaking for a guilty finding.
The first State witnesses were representative of the prosecutor’s theme of emotion over fact. They were asked and allowed to testify as to their “feelings” in this case, how it had affected their daily lives in witnessing the death of Floyd. This should have been ruled completely irrelevant, but strangely was allowed to be admitted; setting up further grounds for an appeal.
The cause of death, which was clearly central to all three charges was where the State’s case was the weakest.
The State pathologist, Hennepin County Chief Medical Examiner Dr. Andrew Baker, in the post mortem of George Floyd said categorically that the cause of death was: “cardiopulmonary arrest during law enforcement subdual, restraint and neck compression”. Other contributing factors were “coronary disease” the use of fentanyl and methamphetamine. He further testified to the stress of Floyd’s arrest having “overwhelmed his already burdened heart”, that it “tipped him over the edge”. So in your opinion Dr. Baker, the defence counsel Mr. Nelson asked: “both the heart disease as well as the history of hypertension and the drugs that were in his system played a role in Mr. Floyd’d death?” “In my opinion, yes” replied Dr. Baker.
The State Attorneys wanted on the other hand to prove that Mr. Floyd died from “positional asphyxia “, resulting form the knee on the neck. So here they were faced with their own pathologist testifying that the knee, according to Dr. Baker did not “did not anatomically cut off Mr. Floyd’s airway.” Dr. Baker pointed to the fact that there never was any physical evidence of asphyxia ever brought forward no bruising, no hyoid damage as would be expected in such a case.
We learned that the State met with the Pathologist several times over a few months, and when the results of Dr. Baker went stubbornly unchanged, their only recourse was to seek an outside “expert” opinion. This is a tactic usually reserved for defence counsel in trials.
The case was investigated by the Bureau of Criminal Apprehension. There were fifty case agents assigned, twenty additional agents from the FBI, and fifty members of the Minnesota Police Department. They interviewed all the command and training staff and two hundred civilian witnesses. Twelve warrants were executed (mysteriously two alone on the vehicle Floyd was in). They then provided to the defence fifty thousand pages of evidentiary documents, the classical information dump trying to drown out resource limited opposition.
The medical expert the State found was Dr. Tobin a pulmonologist from Ireland; who after watching hundreds of hours of videotape, over and over again, came to the conclusion that in his opinion, that Mr. Floyd being face down, was unable to breathe and therefore died of positional asphyxia. He testified that the weight of Chauvin, 23% of which was transferred on to the neck and back of Mr. Floyd was what killed the victim. Chauvin is 5’9” and 140 lbs, Mr. Floyd was 6’3” and 230 lbs. His evidence was that a maximum of 32 lbs could have been transferred on to the body of Floyd at any given times, the weight shifting from the back, the shoulders and the neck.
Defence counsel produced other experts who confirmed the findings of the State pathologist Dr. Baker. In cross examination of Dr. Tobin, and in their witness Dr. Folwler the defence produced twenty-three studies showing that — being face down on the ground, even if “hog tied” or “hobbled” ( the more drastic methods of police condoned restraint) in a normal healthy human being, would not cause death. It turns out all the teachings of it being a lethal position to put someone in stems from a study in the 1980’s. All agreed that Mr. Floyd was not a healthy individual by any measure.
The State’s Attorney argued that the “speed ball “ of fentanyl and methamphetamine would not have played a role, since Floyd would have a life long “tolerance” to drugs. They did not prove this conclusion and glossed over the fact that Floyd had twice the fatal limit of fentanyl and was passed out in the vehicle prior to the police arrival after having consumed the drugs.
In terms of the drugs Mr. Floyd had taken, the State, in a highly suspicious decision, refused to grant immunity to Morries Hall, who was believed to be Mr. Floyd’s drug dealer and in the vehicle with him at the time of the incident. By not granting immunity, which only the State could do, this forced Hall “plead the fifth” and not testify — therefore not incriminate himself. In the American criminal system the defendant is entitled to a fulsome defence, it would be hard to argue that a key witness being excluded by the State, who may have provided a lethal dose of drugs to Floyd was not allowed to testify was highly unethical and manipulative.
Hall, who had been basking in the limelight after the death of Floyd,had left the State, but was eventually arrested in Texas for other charges. He never testified. The Judge ruled that he could not review the State decision not to allow him immunity, as that was an executive decision and not subject to the review of the judiciary.
The original call by the employees of the store came in at 8:02 pm on May 25th to the intersection of 38th and Chicago in Minneapolis, a high crime and largely black neighbourhood. The store employee in calling in the complaint described Floyd as being “intoxicated” due to his erratic behaviour in the the store and described him as “a large man.”
Dispatch requests that the first car respond Code 3 (lights and siren). At 8:04 the police car with Officers Lane and King arrives at the scene and are directed to the Mercedes SUV across the street —where a passed out George Floyd sits in the driver seat. At 8:10 the dispatcher hears them struggling with Mr. Floyd and Chauvin now heads to the scene for backup, once again Code 3.
At 8:11 Floyd is removed from the car, and an all clear signal is given at 8:12.
Chauvin slows down, parks and walks up to the other two officers at 8:17 as the two other officers once again, begin to struggle to put Floyd in the car.
Mr. Floyd is erratic, shouting inanities, and screaming he “can’t breathe”.
At 8:18 Chauvin begins to wrestle with Mr. Floyd as well.
At 8:19 the struggling stops and they are containing the handcuffed Floyd and Mr. Floyd is on the ground with two officers pinning his legs, and officer Chauvin on his back.
At 8:21 the ambulance is called as the officers believe that this is a more medical emergency due to Floyd’s use of drugs. Paramedics arrive five or six minutes later and because of the hostility of the crowd, they do a “load and go”, wanting to remove him from the area before treating.
The State alleged that Mr. Chauvin was shoving Mr. Floyd’s face into the “unyielding pavement”, “lacerated his knuckles” described the pavement “tearing into his skin” while the “horrified bystanders..watched it unfold”. Bystanders pointed to the blood coming from Mr. Floyd’s nose. This was when Floyd hit himself into the shield in the back of the police car. The bystanders pointed to the fluid on the ground near Floyd, believing that he had urinated. The fluid was actually from the nearby police vehicle.
It was the State’s argument that Chauvin then began to “assault Mr. Floyd” by keeping him in the face down position and having a knee on his back, shoulder, and neck area. The defence argued that in fact, he was complying with his training, and using a taught restraining method and continued to hold him down due to the passive resistance by Floyd.
The State argued that the Mr. Floyd was no danger to anyone, that this was an “assault”, a felony level of assault, that Chauvin was “doing it on purpose” and that he was “not following the rules”. Not only, they argued, must you “trust your eyes”, they asked the jury to read the “body language”. They implored that it showed that Chauvin was exhibiting an “ego based pride”.
They argued further that Mr Floyd did not want to get into the squad car, because he was “claustrophobic” and that he was “experiencing a crisis”. Mr. Chauvin they opined should have recognized that as the crowd grew and hissed around him, he should have offered aid, and maybe even done CPR. The police should have “re-assessed about putting him in the car”.
The State grudgingly admitted that there were “other causes” contributed to Floyd’s death—but that did not relieve him from his “responsibility”. The State argued in their closing that Mr. Chauvin had “intentionally applied unlawful assault” and “intentionally inflicted bodily harm” all while wearing a body cam, was surrounded by other body cams, was being videotaped by onlookers and was at an intersection of city surveillance cameras.
All admitted, including the State, that the arrest, attempts to put him in the police car, and then the putting him on the ground was “reasonable” for a police officer to do under these circumstances, putting him face down was ok, it was just the length of time that it was done which warranted two murder charges. One could argue that the charge of manslaughter was debatable, if you believed Chauvin should have been fully aware of Floyd’s medical stress throughout but the intent needed for the murder charges simply was not there.
The circumstances and how the events unfolded is straightforward. The call for the police, the attendance by the police, the arrest of a struggling Mr. Floyd, the wrestling of Mr. Floyd to the ground plays out hundreds of times every day across North America. It should be pointed out that none of this was about Mr. Floyd being black, the police came because they were called and they performed a legitimate arrest of the alleged suspect.
No officer should be smug in viewing this trial play out. No officer should assume that the intersecting of circumstances that transpired in this case is somehow unique. No officer should assume that the cloud of alleged racism could not darken and obscure any set of investigational facts.
Due process and the right to a fair trial should no longer be assumed in any courtroom in the United States; nor in this country.
This case is a bell wether and should give every police officer pause. Your very ability to function as a police officer now needs to be viewed through this prism of mob driven social justice which now demands perfection in all actions and deeds and starts with an assumption of presumed guilt.
There is no officer who has worked the streets who has not handcuffed a subject and placed him on the ground and knelt on his back or neck. I know of no officer who has heard screams from the suspect that they were in pain or hurt, or demanding real or imagined medical attention. I know of no officer who has not had to arrest an intoxicated or high suspect who is combative. I know of no officer who has not been called derisive names or had insults hurled at them from a distance. I have never heard of an officer who has not been accused of being racist if that officer happens to be working in a racially diverse atmosphere, which includes those officers of colour or a different ethnicity. And in this day and age I know of no officer who has not been videotaped by an onlooker or a suspect.
In other words, every street police officer could have been the one sitting in the seat of Derek Chauvin.
Every officer could have their senior managers with their finger raised, testing the political winds, testify as to your contravention of the policy, your dereliction in not caring enough or showing enough empathy. Your fellow workers could come forward to second guess, to exclaim that they would never have left that knee on the neck to suppress a prisoner, well, maybe for a short time, but they would have had the good sense to not do it for as long as Officer Chauvin. They know better. Your life and your very freedom could come tumbling down around you for not paying strict attention to the instantaneous ebb and flow of those overly simplistic classroom “use of force” models.
The jury verdict was reached after about eight hours of deliberation. “Guilty” on all three counts. This was not even enough time to analyze the three counts in any depth or review the evidence of thirty eight witnesses. Clearly the jury had made up their mind early, they had “trusted their eyes” as they had been directed by the State. Possibly they worried about their city being enveloped by violence, the place where they work and live.
President Biden clearly was not worried about interfering in the judicial system. He called the Floyd family prior to the verdict being rendered —saying that the evidence was “overwhelming”. Maxine Walters a black Representative in Washington, again before the verdict, urged the black community to offer resistance to the police if there was a not guilty verdict.
Fast and predictable, Chauvin had no chance. Street festivals broke out, the mob now dancing around the flames, with the head of Chauvin on a stake.
Biden and his Vice President Kamala within hours called a press conference. They thanked the jury and announced that they had proposed the “George Floyd Justice and Policing Act”, in honour of Mr. Floyd. Strange bed fellows for the Democrats, as this is the George Floyd who had multiple “brushes with the law”, including five years for armed robbery in 2007, where a pregnant woman was assaulted and robbed, a gun allegedly pointed at her pregnant stomach.
Justin Trudeau welcomed the American verdict.
These are indeed very dangerous times. The far left has now become indistinguishable from the far right. The Nation has officially divided.
Black history in America has been troubled, fraught with slavery, discrimination and violence. The Mississippi and Louisiana of the 1960’s, segregation, and the impoverishment of the disadvantaged will forever be a blemish on the American being. However, an unjust verdict, a revenge seeking verdict, will never right the wrongs of the past. Even Dr. King would be embarrassed, as all Americans should be embarrassed.
Photo courtesy of Lorrie Shaull via Flickr Creative Commons – Some Rights Reserved.