Will Chauvin Testify about Floyd’s Killing in Feds’ Prosecution of Fellow Ex-Cops?

It’s unlikely because he presents more risk than reward for both the prosecution and the defense.

T his is the second of three columns that preview the federal civil-rights prosecution of Tou Thao, J. Alexander Kueng, and Thomas Lane, the three former police officers who are accused of abetting the 2020 killing of George Floyd by their fellow former officer, Derek Chauvin. (Hereafter, I will refrain from repetitively referring to the four as “former” cops.) The trial kicked off in earnest on Monday at federal court in Minneapolis. The first column dealt with the centrality of race to the federal prosecution.

This column spotlights a question that has prompted a good deal of speculation: Will Chauvin testify? I don’t think so.

The jury will apparently hear from at least one of the four cops. In opening statements on Monday, a defense lawyer indicated that Lane would testify about the police encounter with Floyd. As for Chauvin, though, both sides would be better off depicting him to the jury for their own purposes than dealing with the pitfalls of calling him as a witness.

The government did not tip its hand on a potential Chauvin appearance in assistant U.S. attorney Samantha Trepel’s opening statement. Many believe, however, that the Justice Department laid the groundwork for calling him as a witness when Chauvin pled guilty to civil-rights charges in December. It is always possible, moreover, that he could be subpoenaed to testify for the defense.

Background

Let’s lay some groundwork of our own. In April, Chauvin was convicted on intentional and depraved-indifference murder charges, as well as a manslaughter count. It is virtually certain that the depraved-indifference charge will be reversed on appeal, but the other convictions and Chauvin’s 22-and-a-half-year state sentence are likely to be upheld.

Chauvin’s state trial was “severed” (i.e., ordered to be separately tried) from that of his three codefendants. The severance was justified by the theory of “antagonistic defenses.” The other three cops plan to blame Chauvin for Floyd’s killing — an obvious strategy, and one that was reaffirmed in opening statements at the federal trial on Monday. Chauvin was the senior officer on the scene, and he drove the decision to employ a prone-position hold on Floyd, who was clearly under the influence of drugs and in distress, while police awaited the ambulance they’d summoned to take him to the hospital. Police training discourages (but does not forbid) holding an arrestee in the prone position. It can make breathing difficult and be dangerous if maintained too long — especially on someone, such as Floyd, who had cardiorespiratory problems and a history of drug abuse.

In the antagonistic-defenses scenario, judges typically grant separate trials because the defendant on whom blame is shifted would otherwise be whipsawed by, in effect, two sets of prosecutors (the state and the other defendants). The scenario can also be unfair to the defendants doing the blame-shifting, since their strategy can be inhibited by the blamed defendant’s presence as a defendant. Among other things, the blamed defendant can’t be compelled to testify, and he will fight the blame-shifting (it is always easier to blame the missing and the dead than someone who is present and motivated to defend himself).

Justice Department Intervention

Thao, Kueng, and Lane were slated to be tried by the state shortly after Chauvin’s trial. That schedule was upended by the Justice Department’s preening for the Democratic base.

As if enough hadn’t been done to influence the jury pool when Congresswoman Maxine Waters (D., Calif.) and President Biden made prejudicial statements during the closing stages of Chauvin’s high-profile trial, the Justice Department gratuitously jumped in. First, it trumpeted the commencement of a civil-rights investigation to probe what it claimed to suspect were racially discriminatory practices by the Minneapolis Police Department (MPD); then, it announced its civil-rights indictment of the four cops. There was no legal time-pressure on DOJ to take these steps; the feds could have protected due process in Minnesota by waiting until the state proceedings ran their course before filing charges — civil rights are supposed to be a concern of DOJ’s Civil Rights Division. The timing of DOJ’s intervention was political. It inevitably stoked more prejudicial publicity, forcing the state court to postpone the three cops’ trial for several months. Meanwhile, DOJ persuaded the federal court in Minnesota to schedule the civil-rights trial for mid-January 2022.

With jury selection just a few weeks away, the Justice Department announced on December 15, 2021, that Chauvin, having been convicted in state court, had opted to plead guilty to federal charges rather than face a second trial. He entered a guilty plea to Count One of the indictment, which charged Chauvin alone with violating Floyd’s federal right to be free of “the use of unreasonable force by a police officer.” (The other three cops are charged in other counts; we’ll look at that in the next column.) Chauvin also pled guilty to a separate criminal information, which also charged only him with violating civil rights by using unreasonable police force, this time against a 14-year-old boy in 2017. (In federal practice, a criminal information is filed by prosecutors when a defendant waives the Fifth Amendment right to be charged criminally only by a grand-jury indictment.)

Guilty Plea Favorable to Chauvin

Naturally, DOJ heralded Chauvin’s guilty plea as a telltale admission that he had willfully violated George Floyd’s civil rights. Yet, as the government prosecutors were well aware, the deal was very favorable to Chauvin.

The plea bargain capped Chauvin’s potential federal sentence at 25 years, stipulated that he could be released in as few as 17 years, and provided that the federal sentence will run concurrently with the 22-and-a-half-year sentence already imposed in the state. Despite admitting guilt in the federal plea, Chauvin is apparently still appealing his state-court convictions. Though some significant appellate issues stem from the state case, he nevertheless realizes that the main murder conviction and the sentence are highly unlikely to be overturned, so it is cost-free to agree to a concurrent federal sentence of roughly the same amount of time.

Significantly, Chauvin will be able to serve his time in federal prison — an objective of Chauvin’s since very shortly after Floyd’s death, when he reportedly offered to plead guilty to at least one state charge if he could serve his time in federal custody (an offer the Trump Justice Department rejected, opting to defer to the state murder investigation). Theoretically, Chauvin could serve more time on the federal than on the state sentence, because Minnesota parole rules could reduce the latter; but it won’t necessarily be more, and even if were, it would be only slightly more. Meantime, Chauvin calculates that custody in a federal prison somewhere in the United States is apt to be safer and less restrictive for him than would be maximum-security confinement in, say, Minnesota’s Oak Park Heights Correctional Facility (where he has been held).

Consequently, though the Justice Department touted Chauvin’s guilty plea as a triumph for civil-rights enforcement, it has no real effect other than to let him serve roughly the same term of incarceration in federal rather than state prison, as he desires. Moreover, the federal sentence effectively shields him from any real punishment for the 2017 use of excessive force against a teenager (which was not part of the state prosecution but has, in effect, been concurrently folded into the state sentence for killing Floyd that he is already serving).

Chauvin’s Admissions

So what did federal prosecutors get in return, other than the ability to brag that they prosecuted Chauvin (albeit to his advantage)? Not much. The upside for the government is a narrative statement (pp. 2-6 of the plea agreement), in which Chauvin admits — in a manner transparently designed to undermine the defense of the other three cops — to violating Floyd’s civil rights.

In the statement, Chauvin concedes that Thao, Kueng, and Lane “aided and abetted” him in willfully depriving Floyd of his constitutional rights; but those are legal conclusions to which he would not be permitted to testify. Meanwhile, the actions to which Chauvin admits (e.g., placing his weight on Floyd’s neck and back) are on tape; his testimony about them is no more necessary than it was in Chauvin’s own state trial, at which prosecutors had no difficulty proving them even though Chauvin elected not to testify.

Chauvin now says that besides receiving MPD training on (a) avoiding the use of excessive force, (b) not prolonging detention in the prone position, and (c) the duty to provide emergency medical aid (including the administration of CPR if a detainee has no pulse), he was also instructed that (d) if any of these standards is being violated by an officer, “MPD police requir[ed] officers to intervene, regardless of their rank or seniority.” Clearly, this aims to torpedo the defense claim that the other three officers were taking direction from Chauvin and lacked sufficient status to countermand his wayward orders. Chauvin asserts that “he did not, at any time . . . threaten or force [Thao, Kueng, or Lane] to disregard or fail to comply with MPD policies and procedures”; maybe not . . . but they are on tape pressing him to reposition Floyd in order to facilitate his breathing, and Chauvin is on tape declining to do that in a seemingly authoritative manner.

Chauvin further admits in the statement that he “acted willfully and in callous and wanton disregard of the consequences to Mr. Floyd’s life” in “using this unreasonable and excessive force.” He knew he was wrong, he adds, “because it was contrary to his training as an MPD officer.” The point here, plainly, is to imply that the other three officers, too, knew that what they were doing was contrary to MPD training, and therefore must also have acted willfully, callously, and wantonly. Chauvin elaborates that he knew what he was doing was wrong because of what Floyd was saying about having difficulty breathing and how Floyd’s actions were consistent with these statements. Again, the idea here is that the other three cops were seeing and hearing the same things, and must equally well have known their actions were wrong — willfully so, as the civil-rights statute requires prosecutors to prove.

Chauvin also “admits that he failed to render medical aid to Mr. Floyd, as he was capable of doing, and trained and required to do”; that he also prevented bystanders who offered medical aid to provide it; and that he knows his dereliction in this regard “resulted in Mr. Floyd’s bodily injury and death.” The point here is to undercut the other three cops’ claims that they had done enough by calling an ambulance in order to get Floyd medical aid, and that they could not accept help from bystanders (particularly Genevieve Hanson, a Minneapolis firefighter trained in emergency medical aid — though one who was off-duty and not carrying her MFD identification, and thus could not prove to the cops who she was, leaving them to question whether she’d help or make matters worse).

Chauvin Is More Risk Than Reward for Both Sides

Not surprisingly, the comprehensive statement of guilt in the plea agreement leads to speculation that prosecutors will call Chauvin as a witness. After all, if he testified to this version of events and the jury believed him, the other three cops would be cooked. I believe, however, that the point of this narrative is to neutralize Chauvin as a potential defense witness, not to script his testimony for the prosecution.

The big issues in the case are whether Thao, Kueng, and Lane aided and abetted Chauvin, and whether they acted willfully. Again, while the plea agreement puts Chauvin on record in a manner helpful to the government’s case on these points, he would not be permitted to testify about them: The question of whether the other cops aided and abetted is a judgment for the jury to make based on legal instructions from the court; and Chauvin is not competent to testify regarding the operation of his fellow officers’ minds to determine their willfulness — he could only say what he saw and heard — but who needs him for that, since it’s all clear from audio and video recordings?

Now, let’s talk optics. Chauvin is the singular face of the abuse against Floyd and is the global villain of the piece. Like the state jury, the federal jury is going to be repulsed by him due to the excruciating video evidence of Chauvin defiantly kneeling on Floyd’s neck area as bystanders protested and Floyd pleaded for relief until he fell unconscious and pulseless. If prosecutors were to call Chauvin as a witness, he’d become their guy — they’d be in the position of implicitly vouching for his credibility and defending him from an onslaught by the defense. That is not a position they want to be in.

It might marginally help prosecutors to have the jury know that the main defendant has pled guilty to acting willfully — the key criminal-intent issue that makes civil-rights prosecutions tough (as I will discuss in the third column in this series). But the judge would instruct the jury that Chauvin’s guilty plea would be relevant only on the matter of his credibility as a witness — it would not be admissible as evidence that the other defendants are guilty, or that they acted willfully.

If the prosecution called Chauvin, defense lawyers would delight in framing his guilty plea as a mirage: The government gave him benefits he was seeking, but he may not serve a single extra day in prison over his federal plea, even though, unlike the other three defendants, Chauvin is guilty of using excessive force against a second person — a Minneapolis teenager. Plus, to the extent that Chauvin now admits in the plea agreement to using excessive force against Floyd, defense lawyers would show both that he aggressively contested that allegation at the state trial, and that he is still apparently planning to appeal his state conviction. That is, Chauvin says whatever he needs to say, in whichever forum he is in, to seek advantage.

The danger for prosecutors is that the jury would resent the government’s cutting a deal with the worst actor — a deal that is favorable to Chauvin — in order to go after the less culpable actors. I’d wager the prosecutors won’t want to risk that. They probably insisted on the narrative statement of guilt in the plea agreement simply to minimize the risk that Chauvin might appear as a defense witness. Any value he might have had to the defense would melt away when, on cross-examination by prosecutors, the jury heard about his plea-agreement admissions, including the statements that undermine the other three cops. And Chauvin won’t want to appear for the defense because, if he testifies in a manner inconsistent with the plea agreement the court has already accepted, that will anger Judge Paul A. Magnuson . . . who will not impose sentence on Chauvin until after the trial of the other cops, and could give him a 25-year term, rather than something closer to 20.

Prosecutors are better off presenting their case without all the baggage that would come with calling Chauvin as a government witness. Likewise, Thao, Kueng, and Lane are better off portraying Chauvin as a villain based on other evidence the jury will see and hear than dealing with Chauvin as a risky witness whom the jury will find even more loathsome if he appears to be lying and playing all the angles.

Trials can be unpredictable. It’s always possible that something could arise that would alter one side or the other’s calculations. I doubt, however, that we will see Derek Chauvin in the witness stand at the federal civil-rights trial.