George Floyd’s Death Sets Up Courtroom Collision of Race, Spectacle

(Bloomberg Law) -- The trial of Derek Chauvin, the former Minneapolis police officer accused of killing George Floyd, will combine elements of the prosecution of Los Angeles officers charged with beating Black motorist Rodney King and the media spectacle of O.J. Simpson’s murder case—all set against the modern backdrop of Black people dying at the hands of police.

The events last spring captured on viral footage that sparked calls for racial justice will be rehashed over a live broadcast from a socially-distanced courtroom, as a jury weighs whether the death that launched global support for the Black Lives Matter movement was a crime.

“As we near the beginning of Derek Chauvin’s murder trial, we need to understand that bigotry, white supremacy, and complacency are also on trial,” said Patrisse Cullors, co-founder and executive director of Black Lives Matter Global Network Foundation.

Chauvin—the White officer seen kneeling on the Black man’s neck—is fighting murder and manslaughter charges in the trial slated to start March 8 with jury selection. But the stakes are bigger than Chauvin’s fate.

Minneapolis, which burned in the aftermath of the May 25 incident, is gearing up with massive security ahead of another potential uprising following the verdict—especially if it’s an acquittal, with memories of how the acquittals in King’s case sparked riots in Los Angeles in 1992. The Covid-19 pandemic is forcing unusual precautions in the courtroom amid concerns that its disparate impact on communities of colors might make it difficult to seat Black jurors.

The U.S. House of Representatives on March 3 passed a police reform bill (H.R. 1280) called the George Floyd Justice in Policing Act. President Joe Biden, who, while running for office, told Floyd’s family he’ll do everything he can to see that “justice is had” in the case, supports the measure. Federal prosecutors have reportedly convened their own grand jury investigating Floyd’s death.

The verdict hinges on a host of factors at play in the unpredictable world of the jury trial—with the charges themselves still in flux on the eve of trial—starting with how to seat a panel during Covid-19 with jurors from the area who may well have rendered their verdicts before entering the courtroom. Judge Peter Cahill rejected defense efforts to move the trial elsewhere.

Here’s a look at what else to watch for.

What Are the Charges?

Remarkably, those are still unsettled. Judge Cahill previously tossed out a third-degree murder charge, leaving prosecutors with second-degree unintentional felony murder and second-degree manslaughter. For the second-degree murder charge, prosecutors need to show Chauvin caused Floyd’s death while committing or attempting to commit a felony—here, assault. For the manslaughter charge, they need to prove Chauvin’s culpable negligence created an unreasonable risk and consciously took the chance of causing death or great bodily harm. For the third-degree murder charge, prosecutors would need to show Chauvin caused Floyd’s death “by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” A state appeals court on Friday reversed Cahill’s refusal to reinstate the third-degree charge and sent the case back to him to reconsider, leaving the status of the charge unclear on the eve of trial.

How Will the Charges Play Out?

Prosecutors need to prove the connection between Chauvin’s actions and Floyd’s death. It will likely come down to dueling accounts from medical experts, with the government arguing a direct line of causation while the defense tries to complicate that narrative by pointing to other factors like Floyd’s alleged health issues and drug use noted in his autopsy report as well as his alleged resisting arrest. Another expert battle could unfold over police use-of-force and the reasonableness of the technique Chauvin used to restrain Floyd.

What’s the Potential Sentence?

Minnesota sentencing guidelines call for 128 to 180 months in prison for both murder charges, so a mid-range sentence would be 12.5 years. The maximum for the second-degree murder charge is 40 years, while the third-degree maximum—if prosecutors can reinstate that charge now that the issue is back in front of Judge Cahill—is 25 years. For the manslaughter charge, the guidelines are 41 to 57 months, with a mid-range term of four years and a 10 year-maximum. If there’s a conviction, prosecutors have signaled they’ll move for a special enhancement proceeding, which could trigger those steeper terms. No matter what happens, double jeopardy rules don’t bar the federal government from bringing its own charges. The Justice Department successfully prosecuted Los Angeles Police Department officers on civil rights charges after state-court acquittals in the King case.

Who are the Prosecutors?

Minnesota Assistant Attorney General Matthew Frank, who has prosecuted cases all across the state, has been the lead prosecutor under AG Keith Ellison—a former Democratic U.S. representative—in court filings ahead of Chauvin’s trial. But the prosecution has added Washington attorney Neal Katyal of megafirm Hogan Lovells, who was acting U.S. solicitor general under President Barack Obama, reflecting the case’s high profile. During a March 1 argument over reinstating the third-degree murder charge, Katyal called the prosecution “a landmark criminal case, one of the most important in our nation’s history.”

Who’s the Defense?

Eric Nelson of the Halberg firm in Minneapolis. Like Frank for the prosecution, Nelson is not yet a national household name but is likewise an experienced criminal attorney in the state. He’s perhaps best known for defending Amy Senser, wife of ex-Minnesota Vikings football player Joe Senser, in a hit-and-run homicide. She was convicted.

What’s the Defense?

The defense has no burden in a criminal trial. It falls solely on the prosecution to prove the elements of the crime beyond a reasonable doubt. Nelson will work to poke holes in the government’s case. But, in addition to the expert battle, a crucial point in the trial will be whether Chauvin takes the stand and, if he does, how his testimony is received. Prosecutors have historically faced uphill battles getting convictions against police officers.

What Are the Covid-19 and Security Measures?

Lawyers, jurors, spectators, and others must wear masks and keep six feet apart. Witnesses may remove masks to testify. Just one member each of the Floyd and Chauvin families may be in court during the trial, though members can rotate. Jurors and potential jurors will be escorted by sheriffs or court security to and from the 18th floor of the courthouse where the trial will be held. The courthouse itself is surrounded by barbed wire and barriers.

How Long Will it Take?

Jury selection could take three weeks, as could the trial that follows. The three other officers on the scene—Tou Thao, Thomas Lane, and J. Alexander Kueng—are due to be tried this summer for aiding and abetting murder. Cahill split the trials to mitigate Covid-19 concerns.

To contact the reporters on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com; Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at jcrawley@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at sstern@bloomberglaw.com

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