Now that a summary of the testimony in Week Five has been provided [1], here is a collection of commentaries related to the trial.
Will Chauvin Testify in This Trial? [2]
Observers expect that the prosecution will finish its case-in-chief early this coming week with testimony from some members of George Floyd’s family and that the defense will start presenting its case-in-chief. The latter raises the question of whether Chauvin himself will testify.
Chauvin, of course, under the U.S. Constitution, has the privilege against self-incrimination and thus would not face any adverse legal consequences, if he (and his attorney) decide that he will not testify.
On the other hand, as Minneapolis criminal defense lawyer Joe Friedberg notes, “[T]his is a case that really centers on Chauvin’s state of mind, and the best person to tell us about that would be Chauvin, so . . . [attorney Erik Nelson] might really be forced to put him on in this case.” Friedberg added that perhaps Chauvin could testify that he placed his knee on Floyd’s shoulder, not his neck. “When the defendant takes the stand and denies the things that make up the crime, that’s got to make the jury pause.” However, Friedberg cautioned, “Remember now, [Chauvin would be] taking the stand as the most hated man in America.”
Another Minnesota criminal defense attorney, Mike Padden, also thinks Chauvin should testify. He said, “I don’t think he has any choice but to testify. It’ll be a mistake if he doesn’t. The jury needs to hear from him, that’s the bottom line.” Chauvin needs “to explain the reasoning behind his actions and to apologize, which could help negate the ‘depraved mind’ element needed to convict him on third-degree murder.”
Other attorneys and legal scholars reach the opposite conclusion: Chauvin should not testify. They believe “there’s little Chauvin can say to overcome a bystander’s graphic video showing him kneeling on Floyd’s neck for more than nine minutes as he pleaded for his life and repeatedly saying he couldn’t breathe. Pleas for mercy from several horrified bystanders, including children and an off-duty Minneapolis firefighter, were also captured in the video.”
For example, Joseph Daly, emeritus professor at Mitchell Hamline School of Law, said, “Chauvin doesn’t come across as a character that you want to root for because of the video. [If he testifie, prosecutors] will take him through every single second of that video. . . . In cross-examination he’ll just get beat up. It’ll be horrible for him. The risk is so immense for him to testify.”
Agreeing with Daly are two other Minnesota criminal defense attorneys, A.L. Brown and Andrew Gordon.
Attorney Brown said, Chauvin is “not incredibly sympathetic, so he doesn’t offer much by way of story line. It’s even worse for Chauvin because he’s got the chief of police saying,‘This guy’s not with us. We didn’t teach him to do that.’”
Attorney Gordon thinks that defense attorney Nelson already has signaled that he did not intend to call Chauvin to the stand because in the opening statement Nelson did not say much about him. “Most defense attorneys,” added Gordon, “ will tell you that you have to spend some time in your opening statement humanizing your client. You need . . .[the client] to be a person for the jurors” although Chauvin has “a baked-in advantage: . . . [he] is a cop, and the uniform and badge does a lot of the humanizing for” him.
Others have stressed that the face mask that Chauvin (and others in the courtroom) are forced to wear (unless speaking to the jury) “has hidden his reaction to testimony, including any sympathy or remorse that legal experts say can make a difference to jurors.” All the jurors see is the masked Chauvin scribbling notes on a notepad and having short unheard conversations with his attorney. Only at the start of the trial did Nelson have Chauvin remove his mask so the jurors could see his faced Yes, Chauvin appears in a well-fitted suit, shirt and neckti, not a police uniform. In addition, until one day last week, there was no one sitting in the chair in the courtroom reserved for someone from his family.
The StarTribune articles on this subject, however, fails to mention several other reasons why, in the opinion of this blogger, it would be a defense mistake to have Chauvin testify and forced to face cross-examination on the following subjects:[3]
- Almost immediately after Chauvin was fired by the Minneapolis Police Department (MPD) and charged with state crimes for Floyd’s death, he had to have anticipated that he would be sued for significant money damages by Floyd’s family and, therefore, he (and his then wife) has a reason to take steps to try to protect their assets.
- Such a civil lawsuit against Chauvin, the other three ex-officers and the City of Minneapolis for money damages was filed in Minneapolis federal court on July 15, 2020. Although the complaint did not specify the amount of alleged damages, the lead plaintiff’s attorney, Ben Crump, publicly stated, “This is an unprecedented case, and with this lawsuit we seek to set a precedent that makes it financially prohibitive for police to wrongfully kill marginalized people — especially Black people — in the future.” In short, the case is “the tipping point for policing in America.”
- The March 12, 2021, announcement of the City of Minneapolis’ $27 million settlement of the Floyd Family’s lawsuit did not make this financial issue for Chauvin (and his former wife) disappear. The City has a claim against Chauvin (and the three other ex-officers) for contribution to help reimburse the City for at least a portion of that huge sum, and an examination of the details of the settlement agreement presumably would have provisions on whether the Family was releasing the four officers, which seems unlikely.
- Reflecting this motivation to try to protect their assets from such litigation, in those early days after the killing of Floyd, Chauvin and his wife reached a divorce agreement which provided a bulk of the couple’s assets gwould go to her and which a Minnesota state court subsequently found to be fraudulent and refused to approve until it had been significantly modified.
- In addition, soon after Chauvin was fired and charged with crimes in state court, there are reports that he pursued a guilty plea agreement involving his serving a prison sentence in a federal prison even though he did not then face any federal charges, but then U.S. Attorney General William Barr reportedly rejected the proposal.
- Chauvin and his then wife last year also were confronted with state criminal charges over alleged fraudulent Minnesota income tax returns and failure to pay such taxes.
- Related to all of the above was the Chauvin’s couple having a condominium and other property in Florida.
The Chief’s Consultations Before Firing The Four Officers [4]
In his trial testimony, Chief Medaria Arradondo stated that on the day after the death of Mr. Floyd, he announced his decision to fire Derek Chauvin and the other three officers who were involved. (The following additional details about that decision are not in the trial record, but in the cited article by Libor Jany.)
Late the night of May 25th and the next morning, the Chief consulted with Black faith-leaders and community activists like Spike Lee, a local civil rights pioneer. At a morning meeting, according to Bishop Richard Howell of Shiloh Temple International Ministries, the Chief said he was torn about what to do. A FBI official in attendance raised the possibility of a civil rights investigation. Some in the room said there would be protests, and one even said there would be a “war.” Other attendees included Nekima Levy Armstrong, Al Flowers, Leslie Redmond (former Minneapolis NAACP President) and Steven Belton (President and CEO of the Urban League Twin Cities).The Chief told them he would discuss the options with Minneapolis Mayor Jacob Frey.
Around noon on the 26th the Chief met with members of his senior command staff: then-Assistant Chief Mike Kjos and Deputy Chiefs Kathy Waite, Henry Halverson and Erick Fors while Art Knight (the Chief’s former chief of staff) joined by telephone. They all discussed the possibility of firing the four officers, but apparently no decision was made.
After this meeting the Chief made his decision to fire the officers and called and told the Mayor, who in a tweet at 2:00 p.m. announced the firings and said, “This is the right call.” The Chief and the Mayor then held a public news conference to announce this important decision.
Does “Blue Wall of Silence” Protect Chauvin? [5]
Usually police accused of wrongdoing can count on the “blue wall of silence”—protection from fellow officers refusing to cooperate with investigators. But that is not true for Chauvin.
As just noted, Chief Arradondo fired him immediately after the killing of Floyd and testified against him in the current trial. Other Minneapolis police officers have also so testified—Lieutenants Richard Zimmerman, Johnny Mercil and Jon Edwards and Sergeants David Ploege and Ker Yang and Inspectorr Katie Blackwell. And the other three ex-officers facing criminal trial in August on charges of aiding and abetting the killing of Floyd probably will blame Chauvin. In addition, fourteen supervisory officers, including Zimmerman, signed an open letter last year saying Chauvin “failed as a human being and stripped George Floyd of his dignity and life. This is not who we are.”
Why Didn’t Other Officers Stop Chauvin? [6]
On May 25, 2020, Officer Thomas Lane was helping Derek Chauvin hold George Floyd to the ground in handcuffs and told Chauvin at least twice that Floyd should be turned over. But Chauvin rejected the suggestion and Lane did not persist in his suggestion or express objection. Nor did Officer Kueng, was also was helping hold Floyd down. When this happened, both of them were in training under the supervision of Chauvin. Nor did Officer Thao who was a nine-year veteran of the MPD.
Rosa Brooks, a law professor at Georgetown University, says the failure of these three officers to intervene are examples “of what psychologists call ‘the bystander effect,’ paralyzed by the powerful social forces that too often operate to prevent even decent people from taking action to halt abuses.” This was despite the two rookies having had instruction at the police academy about the dangers of using bodyweight to keep a suspect in a prone position for an extended period.”
Professor Brooks says “scores of studies” have provided “a fairly clear understanding of the factors that can lead ordinary people to do nothing even when morality seems to demand intervention. People are less likely to intervene when faced with ambiguous rather than clear situations . . . They’re less likely to intervene when surrounded by peers who are also doing nothing, or when intervention would require challenging those they perceive as having authority.” The professor also says that these studies indicate people are “less likely to intervene when they believe someone else will, or should, take action, or to help those whom they view as culturally different from themselves.”
These factors, she says, “appear to have been at play in the moments leading to Floyd’s death. Chauvin was the most experienced officer on the scene, and the less experienced officers deferred to his judgment; Chauvin was insistent about keeping Floyd on the ground and indicated he was taking steps to keep Floyd alive, creating, for the other officers, a degree of ambiguity about whether Chauvin’s actions were inappropriate. Each of the three officers could see that none of his colleagues was intervening to stop Chauvin, thus diffusing responsibility for any bad outcomes.”
Finally, Brooks claims “differences of class, race and culture might have allowed the officers to view Floyd as ‘other,’ rather than as someone they felt obligated to help.” This is a dubious contention regarding Lane and Kueng as both “had received instruction at the police academy about the dangers of using bodyweight to keep a suspect in a prone position for an extended period of time” and “both were perceived by their peers as caring, idealistic young officers. Kueng, one of just 80 Black officers in a department of 900, had joined the Minneapolis police because he hoped an increasingly diverse force would reduce police racism and aggression toward people of color. Lane, who tutored Somali children in his spare time, was known for his calmness and his ability to defuse tense situations.”
In any event, Professor Brooks argues that effective intervention to stop abuses is a skill that can be taught and learned. It also requires creating a culture encouraging intervention and practice. It also requires “redefining loyalty. Instead of defining loyalty as ‘letting your friends do whatever they want,’ loyalty was redefined as ‘helping your friends avoid potentially fatal mistakes.’”
If the MPD had had a more intensive intervention training program, one of the other three officers could “have pulled Chauvin off Floyd, saying, ‘I can’t let you do this. He’s going to get hurt, or worse, and you’re going to get fired, or worse. Let me handle this.”
All of this analysis by Professor Brooks seems contradicted by the lay bystanders at the site on May 25th—male and female, young and old, those with some experience with use of force and those without such experience, all not having intervention training. Nonetheless, they all persisted in urging the officers to stop holding Floyd on the pavement with Chauvin’s knee to his neck or back. They truly were courageous in so doing.
Permissible Neck Restraints.[7]
At the time of Floyd’s arrest, MPD policy allowed for two types of neck restraint. One was called “conscious neck restraint,” which permitted light pressure on the neck “without rendering unconsciousness” of an individual who was “actively resisting” arrest. The other type was an “unconscious neck restraint” allowing officers to use their arms or legs to knock out a person by pressing carotid arteries on either side of the neck, blocking blood flow to the brain for an individual “exhibiting active aggression.” This MPD policy also instructed officers, at the first possible opportunity to turn people on their sides once they are handcuffed and under control to avoid “positional asphyxia in which breathing becomes labored in a prone position and an lead to death.
Preparing for Reactions to Possible Acquittal of Chauvin [8]
The jury’s verdict is still in the future, perhaps weeks away. Although this blogger, expects and hopes for a guilty verdict, the city and others need to plan for a possible acquittal.
Many people here (and elsewhere) continue to call for conviction. For example, on April 9, over 100 people attended the “We Can’t Sleep If We’re Not Safe From Police Violence” rally and march in downtown Minneapolis that was organized by the Minnesota Chapter of the Council on American-Islamic Relations, Communities United Against Police Brutality and Black Lives Matter Minnesota. Chants were heard—“Prosecute the police, no justice, no peace.”
The City of Minneapolis’ Office of Violence Prevention has entered into partnerships with seven community organizations to send volunteers into different parts of the City to connect people with social services, calm conflicts before they escalate into violence and pass along residents’ concerns to city officials. They, however, will not replace the police.
The Legal Rights Center, a nonprofit criminal defense law firm in Minneapolis, has been conducting weekly Zoom and Instagram discussions for the public about legal issues in the current trial .
The church near the site of the Floyd killing—Worldwide Outreach for Christ—has developed a ministry of reaching out to the young men, many of whom are gang members—who gather there to offer them free conversations and counseling to help them turn their lives around.
On the other hand, a City attorney advised the Minneapolis Civil Rghts Commission against preparing and disseminating statements about the current trial.
Reforming Police Training and Practices
The most general question raised by the Chauvin trial is whether it will prompt more general reform of police recruitment, training and practices in Minneapolis and the rest of the U.S. by state and federal governments.
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[1] Derek Chauvin Trial: Week Five, dwkcommentaries.com (April 10, 2021).
[2] Xiong, As defense prepares to call witnesses, question remains: Will Derek Chauvin testify?, StarTribune (April 10, 2021); Groves (AP), EXPLAINER: Could mask hamper ex-officer’s image with jurors?, StarTribune (April 7, 2021).
[3] See these posts to dwkcommentaries.com: George Floyd’s Family Sues City of Minneapolis and Four Ex-Officers in George Floyd’s Death (July 16, 2020); Family’s Complaint Against Four Ex-Police Officers Over His Death (July 17, 2020); Chauvin and Wife Now Charged with Minnesota Tax Crimes (July 22, 2020); State Court Rejects Chauvin Divorce Settlement (Nov. 20, 2020); Complications in Derek Chauvin Divorce Case (Jan. 20, 2021); Comment: Court Approves Redacted Chauvin Divorce Agreement (Feb. 4, 2021); Did Derek Chauvin Agree To Plead Guilty to Third-Degree Murder? (Feb. 11, 2021): Derek Chauvin Trial: Week One (Mar. 15, 2021).
[4] Jany, In interview with agents, Minneapolis chief Arradondo details ‘emotional’ discussions with officers before officers were fired hours after George Floyd’s death, StarTribune (April 7, 2021).
[5] Givhan, In trial testimony, Chauvin is cast beyond the blue wall, Wash. Post (April 6, 2021); Editorial, Opinion: The blue wall of silence has broken in the Chauvin trial, but that doesn’t absolve the police, Wash. Post (April 7, 2021); Crump & Romanucci [attorneys for Floyd family], Opinion: At Derek Chauvin’s trial, a dangerous code of silence is crumbling, Wash. Post (April 8, 2021); Salter(AP), ‘Blue wall of silence’ takes hit in Chauvin’s murder trial, StarTribune (April 9, 2021).
[6] Brooks, What About the Cops Who Watched George Floyd Die?, Politico (April 9, 2021).
[7] Tarm (AP), EXPLAINER: Was officer’s knee on Floyd’s neck authorized?, StarTribune (April 5, 2021).
[8] Jackson, More than 100 rally in downtown Minneapolis for police accountability, Star Tribune (April 9, 2021); Navratil, Minneapolis to boost community patrols during Derek Chauvin trial, StarTribune (April 9, 2021); Navratil, Minneapolis lawyers advise city-appointed task force on George Floyd to keep quiet for now, StarTribune (April 9, 2021); Du, Minneapolis criminal defense attorneys offer legal takes, healing spaces during Chauvin trial, StarTribune (April 9, 2021); Du, Church at 38th and Chicago reaches out to gang members nearby, StarTribune (April 9, 2021);
