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Prosecutors are playing it smart in Derek Chauvin’s trial

A lot of police officers have testified as witnesses in the murder trial of Derek Chauvin, a former Minneapolis police officer, charged with second-degree murder, third-degree murder and second-degree manslaughter in the death of George Floyd. So many have testified, in fact, that one could easily come away from watching the trial believing that prosecutors are overdoing it, and that calling so many duplicative witnesses might actually backfire.

That’s not the case. For reasons baked deeply into America’s culture and its legal system, a conviction could be incredibly hard to secure in this case. It is in the prosecution’s interest to overwhelm the jury with evidence from police officers.

At least 10 law enforcement witnesses have testified, and all have largely agreed with each other around the same general principle: that Chauvin used excessive force that went beyond the training he received from the Minneapolis Police Department.

For instance, on Tuesday, Lieutenant Johnny Mercil, a use-of-force instructor with the department’s training unit testified that Chauvin’s kneeling on Floyd’s neck is not a trained neck restraint tactic. Minneapolis Police Officer Nicole Mackenzie, a medical response coordinator and CPR instructor, testified that officers are required to render first aid and request emergency services when someone needs medical help — setting up a likely argument from the prosecution later in the trial that Chauvin and his colleagues’ failure to provide medical care to Floyd was itself negligent. Los Angeles Police Department Sgt. Jody Stiger, a use-of-force expert, gave his personal view that the force Chauvin used on Floyd was excessive. Even Medaria Arradondo, Chief of the Minneapolis Police Department, testified about his understanding that Chauvin’s actions did not comport with department policy.

It was not necessary for the prosecution to call all those witnesses. Arradondo alone, along with videos from the scene, would likely have been sufficient to establish both what happened on the day of Floyd’s death, and MPD’s training standards. The trial could then quickly have moved to evidence to support that Chauvin is guilty of causing Floyd’s death under Minnesota law. This is one of the rare places in life or the law in which overdoing it is a good idea.

First, Chauvin will have a defense to the charges against him if it can be established that the force he used was “objectively reasonable.” According to the Supreme Court in its 1989 opinion in Graham v. Connor, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” This is inherently subjective, and not answered merely by the display of a chilling video of what appears to be Chauvin ending Floyd’s life. Unlike many other criminal trials, at issue here isn’t whether the defendant has an alibi; the core issues in the trial are inherently subjective, and only through the introduction of overwhelming evidence — some of it duplicative — will prosecutors have a chance of winning.

Moreover, while the words “proof beyond a reasonable doubt” are as much a part of the public consciousness as terms like “prosecution,” “defense,” and “you have the right to remain silent,” the concept of “reasonable doubt” is an incredibly complex one without a clear, universal definition.

Minnesota’s judicial branch explains in a glossary that finding a person guilty beyond a reasonable doubt requires that the jury have “a high degree of certainty about the defendant’s guilt, although they need not be 100 percent convinced.” Minnesota’s model jury instructions, which courts and attorneys often use in crafting language used to instruct juries on the law, find that reasonable doubt is such proof “as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.”

In practice, what do those definitions even mean? Even after having had the concept explained by a judge via jury instructions, one juror’s notion of reasonable doubt may differ vastly from another’s. Here, where a central issue jurors will be weighing is whether the defendant’s actions were “reasonable,” prosecutors must minimize any chance that one may have a lingering doubt about the outcome.

Finally, Chauvin’s prosecutors have an added burden in that it is quite difficult to convict officers for their on-duty conduct. Police are rarely charged with crimes stemming from their use of force, and even when they are, convictions are rare. According to data compiled by Philip M. Stinson, a criminologist at Bowling Green State University, the conviction rate for police officers who commit murder or manslaughter while on duty is about 50%, which is less than the roughly 70% of people convicted when charged with murder. Juries, as members of a public often taught to trust law enforcement reflexively, tend to resolve doubts in favor of the police. To this end, it should come as no surprise that there has only ever been one known murder conviction of a police officer in Minnesota.

For Chauvin’s trial the jurors were selected based in part on either their lack of knowledge of the case, or their ability to set aside whatever they know about the case — including knowledge of nationwide protests following Floyd’s death around police brutality and race — in order to be able to hear the facts without judgment. They may not have the same relationship to the evidence of the case as a public that has followed it with rapt attention. They may never have previously seen the graphic evidence of Floyd’s death that remains painful to view a year later, and further convinces me, along with many others, of Chauvin’s guilt every time it is shown on television.

Putting on as many witnesses has taken a long time, and even created openings for the defense to exploit on cross examination. However, the prosecutors’ strategy has been wise so far. Their work is cut out for them.

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