IN MAY OF last year, the United States, and indeed the rest of the world, saw footage of a white police officer with his knee on the neck of a black man in the city of Minneapolis, Minnesota for several minutes.
The black man, obviously in pain and distress, repeatedly said that he could not breathe and begged for relief, as did onlookers who had assembled.
The maxim is that a picture paints a thousand words; in this instance, the video, in the eyes of millions, captured a tortured element of American history that’s as old as the nation itself.
George Floyd, who had allegedly passed a counterfeit $20 bill to purchase a pack of cigarettes prior to the police arriving on the scene, died soon after the officer, Derek Chauvin, knelt on him.
In the wake of this tragic occurrence, there were peaceful protests across the country and around the globe. There was also violent, destructive rioting and looting in Minneapolis and elsewhere in the US.
And old wound
It brought the vexed matter of race and policing there to the fore once again. The death of George Floyd mobilised people of colour in myriad ways. Lots of them voted for Joe Biden in the presidential election and for other Democrats down the ballot.
Additionally, they agitated for funds to be diverted away from what would traditionally be regarded as the “nuts and bolts” of policing and into other programmes to steer young people away from crime.
Now, Chauvin is standing trial. He faces what is effectively a menu of charges for the jury to choose from: second degree murder, third degree murder and second degree manslaughter.
They carry potential prison sentences of 40, 25 and 10 years, respectively. There has been some questioning by criminal lawyers in the US at the decision to charge Chauvin with murder in that it will be difficult to convince a jury of it.
On the law, even though the relevant Minnesota statutes do not define second or third degree murder as requiring an intentional killing, most people are certain that that’s what murder is.
Moreover, as criminal law professor Jonathan Simon notes, “the public has been taught to accept the police officers’ position in the streets of American cities as so dangerous and vulnerable, requiring such expert experience and skill, that we really can’t and shouldn’t second-guess them.”
This is borne out by a litany of cases in which cops accused of heinous acts have been acquitted by juries.
Letter of the Law
On the facts, although the widely watched video depicts an awful scene in which likely excessive force was employed, there is further video and other relevant evidence. The video reveals that George Floyd refused to comply with the requests of the police and that he admitted to having been “hooping” (inserting drugs in his anus for a quick and intense high).
The medical examiner subsequently found that Floyd had a high level of fentanyl in his system. Other doctors have concluded that he did not die of a drug overdose.
Of course, George Floyd is not on trial. He suffered a horrendous fate. Nonetheless, it won’t be easy to persuade a jury that Derek Chauvin is a murderer. That said, the testimony of the Minneapolis police chief dealt a severe blow to the veteran officer’s defence.
Medaria Arradondo asserted that the type of restraint employed by Chauvin should not have been used “once there was no longer any resistance and clearly after Mr Floyd was no longer responsive – and even motionless.”
He went on to posit that it was “in no way, shape or form…part of our training, and is certainly not part of our ethics and our values.” And an expert witness for the prosecution has proffered that Chauvin’s use of force “was not objectively reasonable.”
In cross-examination, the defence has hammered home the truth that the chief and the experts were not there on that city street in a fraught atmosphere with a suspect who persisted in resisting arrest and a hostile crowd who could have posed a threat to Chauvin and his colleagues.
His lawyers will amplify this and other points when they present their case. The 14 member jury – five men and nine women, eight whites and six people of colour – must consider the strengths and weaknesses on both sides.
All down to the jury
When it comes to race and policing, many of the jurors’ fellow fair-minded citizens simultaneously understand the legitimate grievances of people of colour and the typically beleaguered responses of the men and women who patrol the neighbourhoods that many of them live in.
African Americans think that they are deemed guilty until proven innocent by law enforcement. It is not only the high-profile occurrences that illustrate the validity of their perception.
The stories that virtually all Americans with a dark skin complexion can tell about the harrowing encounters they have had with police are even more compelling on this front. This is an appalling daily reality for them.
On the other hand, cops retort that they are seen as the enemy by a not-insignificant segment of the black community. They contend that they have the daunting responsibility of keeping the peace in areas that have high crime rates.
For them, this is often a thankless task. And since George Floyd’s death, in what one police union leader described as an “exodus” of people who don’t know how they can “keep doing their job in this environment,” retirements and resignations have surged enormously.In short, it’s complicated.
Another disconcerting aspect of State v Chauvin is that the elected Attorney General of Minnesota, Keith Ellison, took control of the prosecution from the local district attorney.
Ellison, himself an African American and an ambitious Democratic politician, probably had multiple motivations for doing so. For one thing, there has been wall to wall live media coverage of proceedings.
Whatever his reasons, the undeniable intersection of politics and criminal justice, which is so commonly taken for granted in the US, is profoundly disturbing to external observers.
As they weigh up what they see and hear over the coming weeks, all of this – implicitly and explicitly – will percolate through the minds of the jurors.
And there’s a factor that may loom even larger: What will the fallout from their verdict be? No one wants unrest and no one wants to be blamed for causing it, yet unrest could ensue. Suffice it to recognise that theirs is an unenviable duty.
Larry Donnelly is a Boston attorney, a Law Lecturer at NUI Galway and a political columnist with TheJournal.ie.
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