Below is my column in USA Today on the trial of the three former officers involved in the killing of George Floyd. The federal trial court seated the jury last week. There is still a preliminary hearing scheduled on some evidence, but that hearing may be opened to the media after recent filings by the parties. The case is no slam dunk. Indeed, the jury may find the inclusion of one officer (Lane) particularly jarring given his attempted intervention with the absent fourth officer, Derek Chauvin.
Here is the column:
The federal trial of former officers involved with the death of George Floyd started Thursday. And it returns the nation to a terrible scene that traumatized us all: the image of Derek Chauvin with his knee on Floyd’s neck. As with the earlier trial, that film will inevitably be a focal point for the jury. However, the most important factor in the federal trial could be the one thing missing: Chauvin.
In the trial of J. Alexander Kueng, Thomas Lane and Tou Thao, the prosecutors are facing a trial shaped by a Keyser Söze figure – the omnipresent but elusive villain from the movie “The Usual Suspects.” The guilt of the officers is derivative of Chauvin, who is sitting 26 miles away maximum security prison in Minnesota
Chauvin has already pleaded guilty to a federal charge of violating Floyd’s civil rights. These officers will face the same underlying charge of denying Floyd his constitutional rights while acting under government authority.
Ironically, in state court the prosecutors made the case for the defense of the three officers. In arguing for the conviction of Chauvin, prosecutor Steve Schleicher seemed to exonerate the other three officers. In his closing argument, Schleicher declared that Chauvin “had the power, and the other officers, the bystanders, were powerless.”
Because this is a federal prosecution, the admission of the state prosecutors is not likely to be heard by the jury. Yet the issue of culpability will loom over the trial as the defense highlights the authority and unilateral actions of Chauvin. The more evil Chauvin appears, the less culpable these officers may appear by comparison.
The most difficult case to make is against Lane, who had only four days on the force and can be heard trying to deescalate the situation. When Floyd pleaded, “Please don’t shoot me, man,” Lane replied, “I’m not shooting you, man.” When Floyd struggled not to get into a police car and said he could not breathe, it was Lane who offered to roll down the windows and turn on the air conditioning. It also was Lane who urged Chauvin to move Floyd from the knee-restraint position. He asked Chauvin to roll Floyd to his side.
Thao and Kueng are charged with willfully violating Floyd’s right to be free from unreasonable seizure because they didn’t intervene. Notably, Lane is not mentioned in that count. All three officers are charged with willfully depriving Floyd of liberty without due process, in this case related to Floyd’s medical needs. The theory is that they could see Floyd was in distress but did not help him.
The defense is likely to emphasize that the fatal period lasted just nine minutes and 29 seconds in which Chauvin entirely or partially blocked the complete view of the officers. The officers can be heard calling for an ambulance.
The outcome of the trial may turn on one element of the crime under 18 U.S.C. 242. The criminal conduct by all three officers must be “willful.” In the 1945 case Screws v. U.S., the Supreme Court sought to define that term as meaning a “specific intent to deprive a person” of constitutional rights or with “open defiance or in reckless disregard of a constitutional requirement.”
As shown by the King case in 1991 and the Floyd case in 2020, we are still grappling with how to address excessive force. Not much has changed. Jurors must draw a line between the tragically negligent and the criminally willful for periods as short as 90 seconds (the King video) and more than nine minutes (Floyd). The legal standards have remained the same, and the ultimate culpability rests with the jury.
Notably, there were four officers tried for beating King, and other officers stood by. He suffered, among other things, multiple skull fractures and brain damage. However, only two officers were convicted. And one of those actively beat King.
In Minneapolis, while these three officers still face state charges for their actions on that day, they are facing federal charges for what they failed to do – stop Chauvin from asphyxiating a man who simply tried to pass a $20 bill that the cashier thought was fake.
It is often more difficult to prove criminal nonfeasance (the failure or omission to perform an obligatory duty) as opposed to misfeasance (wrongful performance of a lawful act) or malfeasance (intentional conduct that is wrongful or unlawful).
The failure to take further action has to be a willful decision that is not merely bad judgment or a negligent response from the officers. They had to also know that what they were doing – or more accurately what they were not doing – was wrong.
They must show that these three officers were not “bystanders” or “powerless” in the face of Chauvin’s crime.
Whatever the outcome, the country must reinforce the power of police officers to do the right thing in such circumstances. Officers are already expected to refuse to carry out unlawful orders. However, some cities have made such duties explicit or passed provisions protecting officers from retaliation if they do protect the rights of the suspect.
Such reforms and policies are not on trial in Minnesota. Neither is Chauvin. The jury will be left with a nine-minute-29-second video, three officers and a question of willfulness.