As an attorney who handles excessive force cases against police officers, I've seen this happen before. What sets the case of State of Minnesota v. Derek Chauvin apart, however, is its potential to change the discourse on racial justice and policing.
The prosecution needs to make a strong closing argument that properly addresses the few strong points the defense will make in its closing.
Dr. David Fowler, one of the defense's key witnesses, testified last week in the Hennepin County District Court that Floyd's death was the result of cardiac arrhythmia exacerbated by the drugs in Floyd's system, his heart condition and the presence of carbon monoxide. That testimony could present an opening for the defense, especially when coupled with the testimony of other officers.
The idea that Chauvin used tactics employed by other officers in the department — placing his knee on the neck of a suspect to maintain control until support arrived — is key to his defense, and we can expect it to be the main focus of closing arguments. It creates a real opportunity for a hung jury, which is less likely than a guilty verdict, but still possible.
That may seem incredible given the video evidence, but the video does not answer the ultimate question before the jury: Was the force used excessive and did it cause Floyd's death?
This two-fold question must be answered in the affirmative to find Chauvin guilty on any of the three charges — second-degree murder, third-degree murder and second-degree manslaughter. The defense will no doubt address the first part of the question by citing standard department procedures along with officer testimony and address the second part by citing testimony from their expert medical witnesses.
The court will then instruct the jury that a finding of guilt must be beyond any reasonable doubt, and if there is any reasonable doubt, they cannot find Chauvin guilty. The defense's case, and the evidence it will focus on, may persuade one juror to harbor some reasonable doubt of guilt. The result: a hung jury.
The pressure will be on the prosecution in its rebuttal closing to address the points focused on by the defense. There will likely be moving moments during closing.
Prosecutors may repeat "nine minutes 29 seconds" — the length of time that prosecutors say Chauvin knelt on Floyd's neck — as many times as the court will allow. They may spend nine minutes 29 seconds of the closing arguments in silence, to convey how long that actually is, while the video is on the screen paused on a frame of Chauvin's knee on Floyd's neck. They might ask the jurors to count the number of breaths they take during that period.
If handled properly, the closing can ensure the jurors return a verdict of guilty and avoid the off-chance that a lone juror will simply refuse to find Chauvin guilty, i.e., juror nullification.
The overwhelming opinion among pundits and experts seems to be that Chauvin is clearly guilty. That opinion ignores that there exists evidence in the defense's case that need only sway one juror.
Hopefully, popular opinion has not created a false sense of security among the public and left us unprepared to receive anything other than a guilty verdict. Myopia is not what this country needs right now. What we need are clear, systemic changes in our policing system.
Our current system stands in the way of justice and accountability, both criminal and civil. We must not be derailed by the notion that the deaths of Floyd and Daunte Wright, a Black man killed by a Minneapolis police officer this month, were caused by bad apples, when we know there are systemic problems in our policing system. If left unaddressed, these problems will result in more incidents of police violence against citizens and the subsequent regurgitated mantra: "just a bad apple."
Until steps are taken toward meaningful change, we will continue to read horrific stories like these, where grieving families are to left to seek justice for their loved ones.
Meaningful change must address how and when charges are brought against officers and by whom. Prosecutors, whether local, state or federal, are often too close to their respective officers. Out-of-state or special prosecutors should therefore be involved, if necessary, as they can be expected to be the more impartial.
Meaningful change means setting paraments for the indictment process and assigning responsibility to the appropriate authority, whether local, state, federal or special prosecutors, or an independent commission.
Meaningful change must address how police departments respond to those in mental health crises.
Meaningful change — in the civil context — must also account for the impact of qualified immunity on a victim's ability to hold the officer accountable for injuries or death.
In 2020, the U.S. Court of Appeals for the Fourth Circuit issued an opinion that denied officers' qualified immunity in Estate of Wayne A. Jones v. City of Martinsburg, W.Va., following the 2013 police shooting of Jones. In rejecting police officers' fear-based use of excessive force as part of their qualified immunity defense, the court made a statement referencing the then-recent death of Floyd that reflects the sentiment of so many: "This has to stop."
Meaningful change means greater accountability, which will result in fewer bad apples engaging in the use of unnecessary excessive force against members of the public.
We know that even before the deaths of Floyd and Wright, there were countless victims over several generations whose deaths each contribute to the long overdue need for systemic change. This case is not just about Floyd's life, it is about all those persons who lost their lives to police brutality and the concern that their suffering is forgotten and ignored.
Christopher E. Brown is managing partner at The Brown Firm PLLC.
Disclosure: Brown represented Wayne Jones' estate in the civil case discussed here.
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