Here is the state of play as the Chauvin trial enters its final stages.
The state of play as the Chauvin trial enters its final stages.
T his morning in a reeling Minneapolis, state prosecutors rested their murder case against Derek Chauvin in the death of George Floyd. I believe they would have rested yesterday afternoon. But the day’s last witness, another use-of-force expert, concluded his testimony at what would be the normal close of the trial day (around 5 p.m. Central time), so Judge Peter Cahill prudently adjourned. This gave prosecutors the night to consider whether there is anything more they’d like to add, and the defense time to think about how extensive its presentation should be — including the important question of whether Chauvin should testify.
Yesterday’s witnesses were impressive in their own right, but they did not add much, if anything. Doctor Jonathan Rich, one of the nation’s most prominent cardiologists and a professor at Northwestern’s medical school, reaffirmed last week’s convincing testimony of Dr. Martin Tobin, a renowned pulmonologist, that George Floyd died due to low oxygen. This condition was caused by his being restrained too long, with his arms cuffed behind him, and significant police bodyweight pressure applied to his back and the base of his neck. This gradually rendered Floyd’s lungs unable to supply his body’s needs, leading to cardiopulmonary arrest.
Like Dr. Tobin, Dr. Rich effectively parried defense counsel Eric Nelson’s effort to suggest an alternative cause of death attributable to Floyd’s array of medical problems, exacerbated by drug abuse. Nevertheless, as I explained in the weekend column, this is something of a fool’s errand. The state need only establish that the police restraint was a material cause of Floyd’s demise. It need not be the exclusive cause (though it may have been), and if Floyd’s underlying medical issues exacerbated the trauma, that would not exculpate Chauvin.
Prosecutors closed their presentation with Seth Stoughton, an academic and former Florida police officer who now specializes in policing practices at the University of South Carolina Law School. He essentially corroborated prior use-of-force expert testimony that Floyd should not have been maintained in the prone position for an extensive period of time — that police were obliged to move him to the side-recovery position (which facilitates breathing) as soon as he was nonresistant, and certainly when he was fading and nonresponsive.
Professor Stoughton was a fine witness, but he really does not help the state deal with problematic use-of-force testimony earlier in the case — e.g., the facts that the Minneapolis Police Department does not forbid the form of restraint Chauvin used, and that it has endorsed the concept that “if a suspect can speak, he is able to breathe.” (Dr. Tobin explained that this notion may technically be true, but it is reckless all the same, providing a false sense of security: The continued ability to speak, especially when speech is fading, does not mean a suspect is not imperiled by the rapid loss of oxygen.)
The state also elicited relatively brief “spark of life” testimony from Floyd’s younger brother, Philonise Floyd. It was understandably emotional and endearing. That said, I admit to being puzzled that state law permits this type of testimony. In terms of proof relevant to the cause of George Floyd’s death, it adds nothing; on the other hand, it would logically seem to bolster the defense argument that, for purposes of balance, it should be able to place before the jury aspects of Floyd’s criminal history, including a conviction for a violent armed robbery.
I do not believe Judge Cahill is going to permit that. He will, however, permit the defense some leeway to offer evidence related to Floyd’s May 2019 arrest, during which he engaged in behavior very similar to the fatal arrest a year later, on Memorial Day — resisting arrest, calling out for his mother, and compromising his health by ingesting drugs. It is not clear how much of this conduct the court will permit testimony about.
Regardless, it is not going to help Chauvin much. It is entirely possible that Floyd resisted the way he did in 2020 because it worked for him in 2019 — in the sense that the authorities decided to take him to a hospital rather than taking him into custody. But even if that were so, it would not rebut the evidence that Chauvin and the three other fired cops materially caused his death by the irresponsible manner in which they restrained him — and continued restraining him even as he faded and died, rather than trying to render medical assistance.
As I observed over the weekend, the prosecution has persuasively demonstrated that Chauvin and the other then-police officers caused Floyd’s death. Nelson will continue to press that issue — emphasizing Floyd’s fentanyl and methamphetamine use, the presence of enough fentanyl in his system to cause death, his enlarged heart, his arterial blockages, the dangerous adrenalin rush attributable to his resistance of arrest, and so on — in the hope that the defense can raise doubt among one or more jurors on the causation issue. That might force a hung jury. In the main, though, the case is going to come down to intent.
To my mind, the state has overwhelmingly established the elements of manslaughter (negligent homicide), but its evidence is insufficient to prove that Chauvin acted with depraved indifference to human life (the charge of murder in the third degree). The critical question is: Did Chauvin unintentionally kill Floyd in the course of committing criminal assault (the charge of murder in the second degree)?
Under Minnesota law, police use of excessive force can qualify as criminal assault. The force used here, in my view, was patently excessive. Chauvin will counter that he called an ambulance and was legitimately concerned, based on Floyd’s violent resistance, that he might suddenly emerge out of unconsciousness and start fighting again — i.e., Chauvin will maintain that he had no intention to harm Floyd, just to hold him under control until the EMTs got there.
Chauvin was obviously, tragically, wrong. But was he wrong enough to call it murder? That is what the jury will have to decide after hearing whatever evidence the defense presents this week on that decisive question.