Posturing and Positioning in the Derek Chauvin Case
Derek Chauvin’s trial for the murder of George Floyd has been beset with challenges from the beginning. The first obstacle seemed to be empaneling a jury with the ability to be unbiased. Then there was the addition of the third-degree murder charge. Finally, just before the weekend, Minneapolis agreed to pay Floyd’s family $27 million to settle a wrongful-death lawsuit. Now what?
Seven of the required 12 jurors and up to four alternates were seated last week. But new information and glimpses of strategy from both sides indicate that the challenges will continue.
Chauvin’s attorney, Eric Nelson, asked the judge to delay the trial and shift the venue to somewhere outside Minneapolis. He argued that the settlement money the Floyd family received would “tarnish” his client. He also asked that the seven jurors be brought back for additional questioning. “The fact this came in the middle of jury selection is perplexing,” Nelson told Hennepin County District Court Judge Peter A. Cahill.
Judge Cahill agreed to consider a postponement, as he believed the settlement could affect the criminal case. He called the timing “unfortunate.” “I wish city officials would stop talking about this case so much,” he said, “but at the same time I don’t find any evil intent that they are trying to tamper with this criminal case.”
Legal experts say that the settlement could send a message to jurors that the city believed Chauvin’s actions were inappropriate, despite the city’s claims that its settlement was independent of the trial. Minneapolis former chief public defender Mary Moriarty said, “I don’t think it helps Chauvin at all. I think it’s pretty prejudicial.”
Nelson noted, to highlight his point, that the City Council waited until after the conviction of former Minneapolis police officer Mohamed Noor to announce a $20 million settlement with the victim decedent’s family. “We’ve got a mayor (Jacob Frey) who’s a lawyer by trade—he should know better—and obviously Mr. Ellison’s son [Attorney General Keith Ellison is the father of Minneapolis City Council Member Jeremiah Ellison] is a City Council member,” Nelson said. “I’m not accusing Mr. Ellison of anything, but it is profoundly disturbing to the defense. The goal of this system is to provide a fair trial and this is not fair.”
The Judge will talk with the already empaneled jurors to find out what they know about the settlement.
Prosecutor Steve Schleicher denied Nelson’s insinuation that the state was trying to prejudice the case through publicity: “We cannot and do not control the civil aspect to this case. We cannot and do not control the Minneapolis City Council.”
Two additional jurors were seated on Monday, March 15, 2021. It seems unlikely that they will not have heard about the settlement before they were selected.
One of Nelson’s trial strategies is that he’s educating the potential jurors about the case during jury selection and leading them to like and trust him by being professional, being nice and kind, paying close attention to them, and listening and responding. Joseph Daly, a professor at Mitchell Hamline School of Law, taught Nelson trial skills in law school. “He’s telling them, there’s different ways to look at things. There’s always two sides to a question. He’s laying the groundwork for his approach to looking at this videotape. I just know they’re going to show this videotape as much as possible, especially the prosecution…so he’s getting them ready for this,” said Daly.
Nelson used a pre-trial motion to try to block prosecutors from “questioning or commenting on Chauvin’s right to remain silent” in front of jurors. This positioning revealed for the first time that Chauvin didn’t attempt to explain his version of the events that led to Floyd’s death to his supervisors or to officials within the Minnesota Bureau of Criminal Apprehension (MBCA). The MBCA took over the investigation immediately after the incident.
Nelson implied that when Chauvin stood with the other three officers implicated in Floyd’s death and “gave the public safety kind of statement about what happened,” that Chauvin didn’t say anything. He further implied that Chauvin said nothing later when he and the other officers were taken to City Hall for further questioning, citing Chauvin’s request for an attorney. That attorney advised him to take advantage of his Fifth Amendment rights.
Prosecutors agreed they wouldn’t mention Chauvin’s invocation of his Fifth Amendment rights but insisted they have the right to talk about Chauvin’s “statements of silence” until he retained counsel. Nelson argued that would be improper. But Nelson said he would allow, without challenge, body-camera video containing statements Chauvin made before his attorney advised him to be silent.
Judge Cahill refused to issue a ruling on the motion, leaving the issues to be dealt with during the trial. He noted that Chauvin, as a police officer, was aware he was involved in a “critical incident” before he arrived at City Hall. On that basis, Judge Cahill queried whether Chauvin was afforded additional legal protections.
Last week, prosecutors revealed that they plan to introduce “spark of life” witnesses. Minnesota law allows family or friends to be heard as witnesses prior to jury deliberations for purposes of humanizing the victim. There are hundreds of potential prosecution witnesses, and listed among them are Floyd’s former girlfriend Courteney Ross and his brother Philonise Floyd.
Spark-of-life testimony isn’t evidence. Judge Cahill will carefully control this testimony and told prosecutors he will impose a hard line on what these witnesses say about Floyd. He said he would allow people to talk about how much they loved Floyd, but will not allow them to talk about his character, which would “open the door” for the defense to introduce evidence that has been inadmissible up to this point, including Floyd’s criminal history.
Judge Cahill said, “Mr. Floyd, in this case, is entitled to have the jury realize he was a human being. He was loved. He had a family. I agree with all of that.” He said he was “specifically concerned” about Floyd being called a “gentle giant,” and refused to allow the witness to say that. “It may be true, as soon as you start getting into propensity for violence or propensity for peacefulness, I think then we’re getting into character evidence and then that does open the door for the defense,” the judge said.
Judge Cahill said he would likely allow the spark-of-life witnesses to talk about Floyd’s struggles with addiction. Chauvin’s defense has put forward the argument that Floyd died of a drug overdose and other health conditions, rather than from pressure from Chauvin’s knee. The defense has said that such testimony would allow them to bring up Floyd’s drug abuse. This is an issue Judge Cahill said could be taken up at trial.
It’s clear that Chauvin’s attorney is attempting to shift his client’s image. The viral video of Chauvin (who is white) kneeling on Floyd’s neck (Floyd was Black) as he cried out for his mother and for breath has made Chauvin notorious throughout the nation. His name and face are everywhere in the news and on the streets of Minneapolis. Posters calling for him to be convicted are ubiquitous. During the seating of the jury, nearly every juror questioned said they had a negative or “strongly negative” view of Chauvin.
Up to this point, Chauvin has sat in the courtroom making notes, not making eye contact with anyone. His presentation is much like the image captured in the videos of Floyd’s death and the moments and days following. Every morning, Chauvin stands with military posture as the Judge enters the courtroom. He says nothing. His face is covered by a black mask, so his emotions are hard to read.
On Thursday, a potential juror spoke of the “hateful look” on Chauvin’s face in the video. That afternoon, Nelson began introducing Chauvin, who stood, removed his mask, and silently nodded at the new group of potential jurors. This subtle piece of theatre may alter the jurors' perception of Chauvin; courtroom behavior can be as influential as evidence.
This comment plays into an argument Nelson has hinted he will be using: that the entire investigation into the circumstances of Floyd’s death was biased against Chauvin, from the handling of the crime scene and evidence to the speedy termination of Chauvin from his job.
Arradondo claims he decided to fire the officers after reviewing their body-camera videos and other evidence. However, Arradondo, the city’s first Black police chief, admitted to consulting with faith leaders and Mayor Jacob Frey before he made his decision. Arradondo will likely testify at trial.
A lead prosecutor, Jerry Blackwell, argued this issue would bring “too much baggage” and wasn’t relevant. The question, he said, is whether Chauvin’s use of force was a factor in Floyd’s death.
Judge Cahill granted this motion. He said both sides can say only that Chauvin was terminated. The judge said any other issues would be addressed during testimony.
Early on, court filings in the case showed that Nelson intended to shift blame to the two less-experienced officers, Thomas Lane and J. Alexander Kueng, who first arrived at the convenience store where Floyd was allegedly trying to pass a counterfeit bill. “If Kueng and Lane had chosen to de-escalate instead of struggle, Mr. Floyd might have survived. If Kueng and Lane had recognized the apparent signs of an opioid overdose and rendered aid, such as administering naloxone, Mr. Floyd might have survived,” Nelson wrote.
Once the case goes to trial, Nelson’s defense is probably going to be founded on arguments that Floyd died from an underlying health condition and drug use rather than Chauvin’s knee restraint. Nelson will no doubt try to raise reasonable doubt in the juror’s minds during the cross-examination of Dr. Andrew Baker, Hennepin County’s medical examiner.
Dr. Baker ruled Floyd’s death a homicide, with contributing elements of restraint by Chauvin, drugs in Floyd’s system, and his underlying health conditions. Dr. Baker’s report said that the amount of fentanyl in Floyd’s toxicology report would have enabled a ruling of death by overdose if Floyd had died alone at home. He also noted he could not say whether Floyd would have died of other causes if Chauvin’s knee hadn’t been on Floyd’s neck.
Judge Cahill has written that the state only needs to prove that Chauvin’s actions “contributed to the death,” not that they were the “sole cause of death.”
Another plank in the platform being built by the defense will be that the force Chauvin used to subdue Floyd was lawful according to the Police Department’s policy. This argument will no doubt be challenged by Chief Arradondo, who is a primary witness for the prosecution.
Arradondo fired Chauvin and condemned his actions, calling Floyd’s death a “murder.” Dr. Baker’s official documentation of Floyd’s death said it was due to “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.”
Judge Cahill advised that jury selection would continue as planned and that the defense request for relocation and continuance would be considered.
