Below is my column in The Hill on the Derek Chauvin trial in Minneapolis. Last week, at least one juror was excused after he expressed fear that he or his family could be attacked after a verdict. (Conversely, another juror called the rioting necessary to advance the Black Lives Matter movement). The man explained that his neighbors had to flee the area after the riots following the death of George Floyd. That fear was shared by various jurors. It is not surprising when the courthouse is ringed in fencing and barbed wire and even police stations in the city are bunkered down. There are already protesters outside of the courthouse and a new “autonomous zone” in the city that is being criticized by police groups. Once again, the news coverage is highly siloed and divergent in such coverage with vastly different images emerging from the city as it prepares for possible rioting. However, it is the divergent coverage of the case itself that is my greatest concern.
The voir dire responses highlight the concern over venue in the case and the decision not to shift the trial to a different city. There is clearly a fear among jurors that there might be rioting if there is an acquittal for Chauvin. The voir dire selection also magnifies the concern over how the case has been covered in the media with the omission of critical defense arguments and evidence. I believe that there was a legitimate basis for a trial, but this is a stronger manslaughter than a murder case. The trial will give us a better view of the evidence but the coverage thus far has been dangerously incomplete in my view, as discussed below.
Here is the column:
Criminal trials have become such a predictable flashpoint for violence that cities create virtual fortresses around courthouses before juries are even seated. That is the case with the Minneapolis trial of Derek Chauvin, the first police officer to be tried for the death of George Floyd last spring.
The rioting that can follow a trial’s verdict is driven by deep-seated, long-standing racial problems. However, commentary by politicians and reporters can worsen those tensions, creating misconceptions of the strengths and weaknesses of cases. For example, before any investigation had been completed, Vice President Kamala Harris, then a United States senator, said Chauvin clearly “murdered” Floyd, while others insisted the crime was open and shut.
Trials, however, are based on the evidence and elements of crimes. They are designed to separate the material from the mythological. A good example is the shooting of Michael Brown in Ferguson, Mo., in 2014, which provoked days of rioting. The shooting was widely called murder by national figures and commentators. To this day, because of wildly inaccurate media coverage, pundits and protesters still refer to Brown holding up his hands and pleading, “Don’t shoot!” However, the officers involved were never charged despite long, repeated federal and state investigations that found no criminal culpability. Indeed, the Obama Justice Department and other investigations refuted the hands up, don’t shoot claim.
Chauvin’s trial has some of the same problematic elements of incomplete or distorted coverage and commentary. It clearly is much stronger than the Michael Brown case — and one can not overestimate the impact of the videotape of Chauvin kneeling on Floyd’s neck for almost 10 minutes as Floyd pleads “I can’t breathe.” The video is seared into the minds of many, provoking anger and disgust. Admittedly, I view cases from the perspective of a longtime defense attorney, but this one has defense points that are rarely reported but could prove decisive in this trial.
The four officers charged — Chauvin, Thomas Lane, Alexander Kueng, Tou Thao — responded to a call alleging that Floyd passed counterfeit money. The first major defense point was captured on body-camera video as Lane spoke to Floyd, sitting in a parked SUV. When Floyd refused to show his hands, Lane pulled his gun and yelled at Floyd to show his hands. After Floyd replied, “Please don’t shoot me, man,” Lane put away his gun and said, “I’m not shooting you, man.”
Floyd is then seen staggering as he is moved to a police cruiser. He admitted he had been “hooping,” or taking drugs. He then resisted getting into the cruiser, saying he was claustrophobic and couldn’t breathe. Lane is heard offering to sit with him, roll down the windows and turn on the air conditioning. Floyd continued to insist “I cannot breathe.” A struggle then led to Floyd on the ground, with Chauvin kneeling on his neck. As shocking as the video image is, Chauvin is likely to cite Minneapolis police training material that describes such restraint for an uncooperative suspect.
The biggest defense point will come from official autopsy and toxicology reports. The autopsy did not cite restraint as the cause of the death, instead citing “cardiopulmonary arrest while being restrained by law enforcement officer(s).” (The family’s autopsy disagrees, citing death by asphyxiation). The preliminary finding of the autopsy “revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation. Mr. Floyd had underlying health conditions including coronary artery disease and hypertensive heart disease.”
The autopsy states that Floyd had fentanyl and methamphetamine in his system. The level of fentanyl was extremely high, and documents from the autopsy attribute the following statement to Andrew Baker, Hennepin County’s chief medical examiner: “Fentanyl at 11 ng/ml — this is higher than (a) chronic pain patient. If he were found dead at home alone & no other apparent cause, this could be acceptable to call an OD [overdose]. Deaths have been certified w/levels of 3.”
The toxicology report on Floyd’s blood amplifies that point, stating: “In fatalities from fentanyl, blood concentrations are variable and have been reported as low as 3 ng/ml.” Floyd’s blood showed almost four times that level. There is palpable fear that even discussing such countervailing defense issues will lead to accusations of being a racist or an apologist for police brutality. As a result, most of these details are routinely omitted from coverage, or only obliquely referenced.
There is both a legal and a political reason Chauvin is going to trial first: The “aiding and abetting” charges of the other officers are derivative on the Chauvin’s alleged crime of murder or manslaughter. The case against Chauvin is also the strongest and there is ample basis for criminal charges due to his failure to respond to Floyd’s medical crisis. Lane, a new officer, is heard at one point suggesting they move Floyd because he might be experiencing “excited delirium. Chauvin replies: “Just leave him.” Conversely, Lane has a stronger case for acquittal, which likely would inflame passions without a prior conviction of Chauvin.
Past cases also show the danger of pushing for higher-range murder charges, which may satisfy public demands but magnify the impact of acquittals. Such overcharging in the George Zimmerman case, focusing on second-degree murder, reduced the stronger case for manslaughter. Instead of significant time on a lesser charge, Zimmerman’s prosecutors got nothing.
Chauvin’s prosecutors pushed for a second-degree murder charge in addition to manslaughter. But, clearly concerned about the sharp-cliff impact of acquittal, they are urging the trial judge to add a lesser third-degree murder charge. That still requires proving Chauvin was guilty of “perpetrating an act eminently dangerous to others and evincing a depraved mind.”
If Chauvin is acquitted of murder, many are likely to be unsatisfied by a second-degree manslaughter conviction carrying a presumptive sentence of 41 months to 57 months, rather than a sentence of up to 15 years. The anger is likely to be greater if they were never told of the defense arguments and evidence. Chauvin’s trial shows the same profile as past cases with a mix of heightened charges and heightened expectations in what is a difficult prosecution case. Chauvin could very well be convicted of murder but, if not, the incomplete commentary and coverage will only add to the ensuing unrest.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
Was Floyd resisting arrest and complaining he couldn’t breathe the previous time he swallowed his drugs and ended up in the hospital?
“There is clearly a fear among jurors that there might be rioting if there is an acquittal for Chauvin. The voir dire selection also magnifies the concern over how the case has been covered in the media with the omission of critical defense arguments and evidence.” They are right to have this fear. Therefore there cannot be a fair trial in this venue.
George Floyd had a lethal dose of Fentanyl in his system, combined with meth. Fentanyl is a sedative for intubated patients. Meth is a street drug with near- and cardiotoxicity which increases the heart rate. The fentanyl overdose would have decreased his respiratory function to the point of respiratory failure, while the meth would have sped up his heart, demanding more oxygen from a struggling respiratory system. All of these sensations and processes would likely have induced a panic.
Someone of any size exhibiting a panic attack, racing heart, and failing lungs would thrash and struggle. When someone who is very strong does this, then it may induce police to try to hold them down. As an asthmatic, the thought of having hands handcuffed behind the back during a severe asthma attack would be terrifying. It would make it harder to breathe, which would increase panic. If someone rational and sober would struggle, then imagine what someone high on illegal drugs would do, when they’re not in their right mind.
I was with someone in the hospital years ago when they died of respiratory failure. Before the morphine calmed them, they were moving their legs and feet in an agitated manner, and they were pretty out of it by that time. It was a helpless feeling, witnessing someone you loved dying in front of you and there wasn’t anything the hospital or doctors could do to prevent it. All we could do was be there. Even if George Floyd had a fatal overdose, and if it turns out that no one could have saved him, then his last moments should have been of being comforted. Thrashing and fighting would have been a normal response to the process of dying like that. I hope more police officers are trained on how to respond to drug ODs, and other causes of respiratory failure, and I hope to God that people please stop abusing drugs.
I disagree vehemently with Chauvin’s response of putting Floyd prone on the ground and kneeling on his upper back. That would make the lungs have to work harder to lift. It was wrong and deadly poor judgement. If this was police protocol, then that training protocol needs to be burned and the ashes spread in an environmentally conscious manner. Many police departments have already banned such holds. Best practices need to be shared between departments. Activists assume that all police departments allow these holds, which is erroneous.
I wish Chauvin had sat Floyd up, raised his arms above his head to open his diaphragm, or tried different positions. I wish I knew if they carried oxygen with them, or if that would be considered a medical device and illegal for someone to dispense without a license. Or maybe it would be a hazard to have an explosive bottle of oxygen in a police vehicle. I wish Chauvin had asked Floyd if he wanted him to call someone for him while they waited for the ambulance. I wish they’d put him in the car and driven to meet the ambulance.
I do not know, as of yet, if this was a training issue, or if the police officer lost his patience. Chauvin’s earlier responses of offering to sit with him, or run the AC, do not indicate that he set out to murder a black man that day. The evidence needs to be presented on this case.
This needs to be a fair trail, without the threat of violence hanging over jurors’ heads. This trial should be justice, not mob justice. But mob justice appears to be the only thing we’re going to get for the foreseeable future.
“This needs to be a fair trail, without the threat of violence hanging over jurors’ heads. ”
I agree. I would hope all agree on that.
You’re watching Fox News again. If Floyd had died of a fentanyl overdose, that would have been listed as the cause of death on the autopsy report, but it wasn’t, and yet, you believe it anyway because Fox has been feeding this to you. You don’t know whether, for George Floyd, the amount found was: 1. accurately determined; or 2. for Floyd, enough to be fatal. But, you’d buy it anyway. You run through a list of what effects drugs have on the body, but are seemingly immune to considering the effects of having someone kneel on a person’s neck for 10 minutes when that person has underlying cardiovascular disease and hypertension and complains of not being able to breathe. So, you’re exactly the type of pro-Trump juror the defense would want: blame the victim. And, if Chauvin is not convicted, you are convinced there will be “mob violence”.
The evidence on tape is circumstantial and the forensic evidence may be inconclusive.. The disinformation spread by the press, social platforms, steering engines, and online was the proximate forcing of violent protests, neighborhood incursions, insurrections, and property damage over a prolonged period.
The prone position – placing on stomach – is preferred position for acute respiratory failure in Covid-19 patients. Have you seen the pictures of patients in their hospital bed on their stomach?
“I wish Chauvin had sat Floyd up, raised his arms above his head to open his diaphragm, or tried different positions.”
As I understand Floyd was upright in the back seat of the squad car. He complained he couldn’t breathe, he struggled our of the car, and said he wanted to lie down.
Remember one symptom of fentanyl overdose is difficulty breathing.
You really should be prosecuting the case. You’re being very reasonable.
“I wish Chauvin had sat Floyd up . . .”
I wish Floyd had not *chosen* to drive around the city while high on drugs. I wish he had not *chosen* to pass counterfeit money. I wish he had not *chosen* to resist arrest. I wish he had not *chosen* a life of violent crime.
I know, today it’s considered cruel to hold an individual responsible for his own bad choices. He’s a “victim.” Meanwhile, the innocent are left to clean up the ashes of that pity-for-the-guilty mentality.
Why didn’t they move the trial to another jurisdiction in the state, like, say, Duluth?
A dangerous pattern? We couldn’t acknowledge that over the summer or even prior to that, huh?
BREAKING: Minneapolis City Council is holding discussions today to grant a settlement to the family of George Floyd, before the jury has been fully seated in the trial of Derek Chauvin
Chauvin has had jurors seated before the city announced a settlement for the family of George Floyd but before his trial began.
Clear grounds for a mistrial.
@jackposobiec
One of the most infamous acts of Mob violence happened in New Orleans in 1891 when thousands of angry men surrounded the jail. They were unhappy about the a juries verdict. Armed men deluged the prison and killed 11 prisoners. The bodies were displayed and hung and ripped apart for souvenirs. Non of the Mob was tried. The victims were Italian-American.
When fear prevails in a political environment such as the Chauvin trial represents, one knows that fascists are close by.
@S.Meyer
The barricades were not installed in Minneapolis due to danger from “fascists”.
antonio
Antonio, you will have to be more specific in your comment.
He is talking about Bolshevists, the people fascism was created to oppose.
Thanks, JD, that is what I am also guessing Antonio is talking about based on his history. However, it turns out that the Russian revolution did not achieve a Marxist state, and in my mind is just another run of the mill “fascist” type political system.
“Bolshevists, the people fascism was created to oppose”
Brothers and sisters are always fighting one another. Those Marxists we see today have considerable variation of political leanings and with the exception of possibly a very few the rest are not true Marxists.
“BIDEN IS A ROOSTER TAKING CREDIT FOR DAWN.”
– DICK MORRIS
_____________
“TRUMP VACCINE” FOR THE “CHINA FLU, 2020”
ACTUAL AMERICANS THANK GOD, PFIZER AND PRESIDENT DONALD J. TRUMP FOR THE THE “TRUMP VACCINE” WHICH WILL END THE “CHINA FLU, 2020.”
Good thing Pfizer got around trump’s not ordering enough vaccine and trying to shade them. Yay!
https://www.fiercepharma.com/manufacturing/pfizer-beats-back-accusations-pandemic-vaccine-production-hurdles
TRUMP + OPERATION WARP SPEED + PFIZER = TERMINATION OF THE “CHINA FLU, 2020,”
A BIOLOGICAL WEAPON DELIBERATELY RELEASED 9 MONTHS BEFORE A PRESIDENTIAL ELECTION
WHICH PRESIDENT DONALD J. TRUMP WAS INEXORABLY DESTINED TO WIN AGAINST
THE COMMUNISTS (LIBERALS, PROGRESSIVES, SOCIALISTS, DEMOCRATS, RINOS)
IN AN HISTORIC LANDSLIDE.
The irony of all this racially charged kibbutzing from those outside the courtroom!
In the old days, there were lynchings. In a lynching the mob would not wait for a trial, they would drag out the accused from jail and hang him. These were usually white mobs lynching blacks, although, white mobs lynched whites too. Leo Frank comes to mind.
Now, we have black mobs who want to lynch the likes of the white perp Chauvin and company. They are deemed guilty by the mob and media. Isn’t the irony obvious?
Black mobs also lynched blacks and — less often — whites. I grew up in a county in which the only lynching was a lynching of a white man by a black mob Circa 1890. The local prosecutors obtained two convictions, but the governor yielded to public pressure and pardoned then.
Chauvin hasn’t been lynched.
In process.
Lynching can be used metaphorically such as Clarence Thomas did:
“And from my standpoint as a black American, as far as I’m concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you.”
The only thing different is the fascist Democrats have expanded their target to white male Americans not just black conservatives.
Hyperbole.
The inmates are running the asylum….and the white house.
How do you figure there was a case to be made for manslaughter by George Zimmerman? Imperfect self-defense?
LOL. Zimmerman was righteous.
Of course. I don’t get where Turley was coming from.
The nurse who treated Zimmerman’s wounds, a prosecution witness, testified that if Zimmerman hadn’t stopped what was causing those wounds he could have died. Pure self defense.
Never bring your fists to a gun fight.
I applaud the Hennepin County Court for the great lengths it is going to for jurors to serve under identity protection.
As far as the defense case, it’s hard to imagine how they will defend against Derek Chauvin rebuffing the EMTs who were trying to intervene to save Mr. Floyd’s life. That was an overt decision to deny lifesaving medical care, or at least, that is what the State of Minnesota will argue.
I’m not sure a change of venue makes much difference in a case that was national news for weeks. It would place a burden on the 100 or so lawyers and witnesses to have to travel for the trial.
pbinca:
“As far as the defense case, it’s hard to imagine how they will defend against Derek Chauvin rebuffing the EMTs who were trying to intervene to save Mr. Floyd’s life. That was an overt decision to deny lifesaving medical care, or at least, that is what the State of Minnesota will argue.”
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It’s an easy argument. The fact is the officer has the obligation to protect the public from potential criminal violence including protecting the EMTs. The first responders are there to try to preserve life, if they can do so safely. In that situation, I suspect most courts would rule and most juries would conclude that the officer’s duty is paramount to the EMT’s duty since the EMTs have neither the experience nor the training to deal with a violent felon hepped up on whatever drug he could get his hands on. Imagine the officer releasing the hold and the felon leaping up, obtaining the officer’s weapon and killing everyone in sight view. It’s nice to live in the world of rainbows and unicorns. Most cops don’t get that luxury.
Mespo, “ It’s an easy argument. The fact is the officer has the obligation to protect the public from potential criminal violence including protecting the EMTs.”
That argument doesn’t hold up to scrutiny. George Floyd was already in handcuffs, lying prone with a knee to the neck. Safety was not an issue at all. The fact that the officer ready had him in handcuffs and prone on the ground eliminated any potential. If George Floyd was simply rolled on his back he still wouldn’t be able to do anything because his hands would have been under him. It’s a poor excuse.
Sevvy:
” If George Floyd was simply rolled on his back he still wouldn’t be able to do anything because his hands would have been under him. It’s a poor excuse.”
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If he’s lying on his back and being restrained on his chest, he’s more likely to suffer aspiration or respiratory arrest if ODing. Ask a pulmonologist or stop by a police academy sometime.
Svelaz:
Evidence regarding Chauvin’s interaction with the EMTs will be presented at trial. There is already quite a bit of misinformation spreading about George Floyd’s dead (https://www.reuters.com/article/uk-factcheck-floyd-claims/fact-check-multiple-baseless-claims-about-the-death-of-george-floyd-idUSKBN23J2JK).
This case needs to be tried in court. There are too many preconceived opinions one way or another. My concern is that the public is exerting pressure on prospective jurors that they’d better give a verdict of guilty or there will be violence, before the trial even starts.
EMTs loaded Floyd and took off to the hospital, rather than take the time to unload equipment and try to stabilize him on the ground. This was because time was of the essence. He was already unresponsive by the time they arrived. They worked on him for 90 minutes, trying to save him.
https://www.emsworld.com/news/1224443/minn-paramedics-worked-george-floyd-one-hour-death
“A 10-minute video broadcast live on Facebook captured the moments that led up to Floyd’s death. Officer Derek Chauvin is seen kneeling on Floyd’s neck while he lies face down, handcuffed, and pleading that he can’t breathe. Minutes later, Floyd goes limp and appears to lose consciousness. Hennepin EMS then arrive six minutes after the distress call.
Civilian footage shows a medical worker touching Floyd’s head as Chauvin remains on top of him. Paramedics and officers eventually flip Floyd over, load him on a gurney and into the ambulance while he was still handcuffed. Once inside, a responder freed his hands.
The decision to “load and go,” rather than triage at the scene, was likely based on their race against the clock, Scheerer said. Unloading all the equipment can often take much longer than treating a patient from inside the ambulance.
When pressed about a potential duty to intervene if a patient is endangered on a call, Scheerer surmised that, in this case, responders were unaware of how severe the situation had become.
“I don’t think the paramedics knew what was going on. They just saw a split second of what was happening,” he said in reference to Chauvin’s prolonged knee restraint on Floyd’s neck. “Ultimately, if the police have somebody in custody, we have to get permission from them to work with on the patient.””
There was absolutely no risk from Floyd when the off-duty firefighter asked the police to check Floyd’s pulse. He was non-responsive at that point, and there were . And the police easily could have checked Floyd’s pulse themselves at the firefighter’s request. Another bystander was also pointing out that Floyd was non-responsive and asking them to check Floyd’s pulse.
Anon:
As someone who represented the federal guard union, I see you know nothing about what a “restrained” prisoner can do to bystanders while on PCP/Meth especially the Pollyannaish crowd you’re part of. Your ignorance is underwhelming. Keep tossing those softballs.
I can see you know nothing about what “non-responsive” means, and I’ll point out AGAIN that nothing prevented the police from checking Floyd’s pulse, as was requested by both the off-duty firefighter and another bystander.
“Your ignorance is underwhelming.”
Your dishonesty and inclination to insult is regularly on display.
What EMTs? Chauvin was restraining Floyd UNTIL EMTs could get there.
Mespo is mistakenly saying “EMT” when he’s referring to an off-duty firefighter who was there and asked them to check Floyd’s pulse prior to EMS arriving.
anon:
Well we have no idea who the woman at the scene really was. She claimed to be the firefighter. She didn’t stick around apparently after demanding to get a pulse reading. Oh and the EMTs did arrive and put Floyd on a gurney. Those are the facts.
“we have no idea who the woman at the scene really was.”
The city knows, because she called 911, so they have her phone # and identity. I wouldn’t be surprised if they called her to testify at the trial.
That call starts off
Operator: “911 what is the address of your emergency?”
Caller: “Hello, I am on the block of 38th and Chicago and I literally watched police officers not take a pulse and not do anything to save a man, and I am a first responder myself, and I literally have it on video camera (clears throat). I just happened to be on a walk so, this dude, this, they f*cking killed him”
“She didn’t stick around apparently”
Wrong again. When the second EMS arrived, they noted that they “encountered an off-duty firefighter who had witnessed the end of the struggle and witnessed the pt go from struggling to unresponsive on the ground while handcuffed and subdued by PD.”
“the EMTs did arrive”
Floyd had no pulse when the EMTs arrived. The record said “unresponsive, pulseless male.”
Those are the facts.
At least the second time Floyd was going through this drill.
The judge granted a motion in limine to bar the defense from mentioning that on a previous occasion Floyd ingested drugs when he was about to be arrested and had to be carried to the hospital on a gurney. This was not his first rodeo.
I would like to hear from the arresting officers on that previous occasion. Was Floyd complaining he couldn’t breathe then? Did he resist arrest?
Questions that should be asked.
You clearly aren’t a doctor and have very limited experience with both medical knowledge and drug abuse (something for which you should be thanking your lucky stars rather than virtue signaling as though your life depended on it). Coastal ivory tower? Pfft. Troll somewhere else.
There is a bright spot in this entire saga. If Chauvin is acquitted and the Brave Masked Wonderful Warriors of Antifa ™ and BLM protest the verdict (though mostly peacefully) they cannot spread COVID!!!! Amazing how the virus is a microscopic social justice warrior and can tell if your naughty or nice.
A similar phenomena exists with regards to the border surge migrants. They cannot spread the deadly COVID virus either. Cannot imagine our superior moral bettors subjecting the population to a dangerous situation.
https://www.washingtontimes.com/news/2021/mar/11/border-surge-migrants-bringing-covid-19-us-elevate/
Didn’t know viruses possessed consciousness and were an intelligent form of life.
antonio
Here are 7 submission holds that don’t require a knee on the neck for 9 minutes.
My favorite is the cattle mutilation hold.
You do know it’s a rigged sport, right?
Says someone that doesn’t realize, choreographed or not, what to take from information and what to leave out.
Anon:
You leftists love a good fraud. You take wonderful lessons from fraud without realizing that it’s ALL make-believe. Admit it. You failed Romper Room, too.
Anonymous will now go back to his special place and once again watch Cuomo receiving his Emmy.
What special place is that Inspector Gadget?
In your basement right under that large picture of Cuomo receiving his Emmy.
Ha. A friend of mine was a regular on Romper Room. Or was it the Mickey Mouse club? You have me curious, I have to get to the bottom of this. Thank you!
And I knew a bunch of the dudes at the WWF in Stamford, Ct in the nineties…, jumping off the ropes and pancaking some other dude from 15 feet in the air ain’t easy, choreographed or not. Those guys were all busted up.
EB
We prefer to use the term “Kayfabe” mespo
somewhere in this discussion I feel like we should revisit the neck crank that Khabib used to submit that big mouth Irishman, whatsisname
This move looked like a rear naked choke, but you can see McGregor has his chin into the crook of his elbow, stopping it from cutting off his wind or blood
and yet he tapped– because of the pressure and pain on his cervical spine. this is why it was properly termed, a “neck crank” even though it looked like a choke without careful examination
https://www.youtube.com/watch?v=dyJgV7u-S-4
Sal Sar