The world has seen the unforgettable footage of George Floyd’s death. And the viral video is the main thing that attorneys for Derek Chauvin don’t want the jury to focus on.
On Monday, the first day of Chauvin’s murder trial in Minnesota, attorney Eric Nelson previewed his defense of Chauvin, a white ex-Minneapolis police officer charged with killing Floyd, a Black man. Instead of the video, Nelson focused on Floyd’s existing health issues and his drug use.
For the prosecution, the video was the star witness. It was shown in its entirety during the opening by attorney Jerry Blackwell, who went into Chauvin’s training and his oath as a police officer, opening with an image of the Minneapolis Police Department’s badge and the motto “protect with courage, to serve with compassion.”
Blackwell told jurors that Chauvin “betrayed this badge when he used excessive and unreasonable force upon the body of George Floyd.”
Floyd, 46, died last May after police responded to a call reporting that he had provided a store with a fake $20 bill. Chauvin held Floyd face-down on the ground with a knee pressed to his neck as he cried out for his mother and repeatedly said, “I can’t breathe.” Three other officers, Thomas Lane, J Alexander Kueng and Tou Thao, are also scheduled to stand trial for aiding and abetting Chauvin in August.
Floyd’s death set off a national reckoning around racial justice, and led to national and international protests, some of which turned destructive.
Chauvin, 45, a 19-year veteran of the Minneapolis Police Department was fired after the incident for using excessive force and is now out on bail. He has been charged with second- and third-degree murder and second-degree manslaughter. The charges carry a maximum sentence of 40 years, but he would likely face between 11 and 15 years in prison based on the state’s sentencing guidelines for first-time offenders.
Bystander video makes its first appearance
Disturbing video filmed by a bystander was shown for the first time to jurors Monday, but it’s likely not the last.
As the video played, one juror drew in a sharp breath, another white woman in her 50s put her hand on her temple, while a grandmother in her 60s stared intently with her brow furrowed as she saw the entire video for the first time. One of the jurors, who is a nurse, had her eyes wide while it played, and her right hand jerked as she briefly gripped the armrests of her chair.
Mary Moriarty, former Hennepin County chief public defender, said the prosecution made good and powerful use of visuals, photographs, video and a timeline of the bystander video and other surveillance cameras.
“The timeline visual slows everything down and allows the jury to think about what happened and what should have happened every step of the way,” Moriarty said.
In a line reminiscent of attorney Johnnie Cochran’s “If it doesn’t fit, you must acquit” defense of O.J. Simpson, Blackwell repeatedly said during his nearly hour-long opening statement that Chauvin “does not let up and he does not get up” for 9 minutes and 29 seconds – even when Chauvin was told Floyd had no pulse. Chauvin keeps the position, his sunglasses on his head and his knee on Floyd’s neck, until Floyd is put onto a gurney, Blackwell said.
Nelson argued that “this case is clearly more than about 9 minutes and 29 seconds” as he emphasized the numerous interviews with 50 police officers, 12 search warrants, body-camera footage, and a witness list of nearly 400 people.
‘In your custody, is in your care’
Blackwell showed images of the Minneapolis Police Department’s use of force policy and its core principle of policing, which states that someone “in your custody, is in your care.”
“It’s not a feeling, it’s a verb,” Blackwell said. “It’s something you’re supposed to do. To provide care for that person.”
But Blackwell said that Chauvin instead engaged in an “eminently dangerous activity” and did it without regard to what impact he had on Floyd’s life. He also said that police are required to constantly reevaluate the amount of force they are using against a person, based on the amount of resistance the person is providing.
The concept is known in policing as the “use of force continuum,” which states that officers are empowered to use match the force of a resistor and increase it enough to overcome that force, but no more force than is necessary to subdue the person.
“What may be reasonable in the first minute may not be in the 4th…or 9 minute and 29 second moment,” Blackwell said.
Police chief Medaria Arradondo will later be called up as a witness to testify about Chauvin’s use of force, Blackwell said, acknowledging in his opening statement that “police have difficult jobs. They have to make split second decisions” but this case is “not about all police” and not about split-second decisions.
“There are 569 seconds, not a split-second among them,” Blackwell said.
The split-second argument is also a reference to the “objectively reasonable” standard that officer conduct is held to when gauging proper or improper use of force, according to the Fourth Amendment and the case Graham v. Connor. Since 1989, the language around determining whether use of force is reasonable that’s been provided to jurors is whether the actions were reasonable given the facts and circumstances confronting an officer regardless of the officer’s underlying intent or motivation.
Nelson, in his opening argument, attempted to get to that point by depicting the situation Chauvin and his fellow officers found themselves in as threatening. He said bystanders grew more and more upset and “as the crowd grew in size, seemingly so too did their anger.” Video footage shows perhaps a dozen bystanders eventually gather on the sidewalk once Floyd is under Chauvin’s knee.
“Remember, there’s more to the scene than just what the officers see in front,” Nelson told the jurors. “There are people behind, people across the street. There are cars stopping, people yelling. There is a growing crowd that officers perceive to be a threat.”
Nelson said officers were called names like “f*cking bum” by screaming bystanders, which caused “these officers to divert their attention from the care of Mr. Floyd. At this location, questions emerge about the reasonableness of the use of force. And this will ultimately become one of the decisions that you have to make.”
Sarah Davis, executive director of the Legal Rights Center in Minneapolis, was appalled by what Nelson said after the jury had just watched the video played by the prosecution and seen a timeline that showed Chauvin’s face as he knelt on Floyd.
“Can you imagine a scenario where police treat a white person in that way and then call that ‘care’?” Davis said. “Of course, we know that this would never have happened to a white person. But also, to frame what Chauvin and the other officers did to George Floyd as ‘care’ reflects deeply racist, dehumanizing messaging.”
George Floyd and drugs
Nelson focused in on Floyd’s use of drugs, specifically opioids, making it clear it would be a large part of the case moving forward. But the tactic could be potentially perilous given the fact that many, including the president’s own son, have struggled with addiction.
The prosecution has not tried to explain away Floyd’s use of drugs, but told jurors Monday that “Floyd struggled from an opioid addiction.” Blackwell said such deaths don’t involve someone “screaming for their lives.”
Moriarty said that the defense has to “walk a fine line” in their arguments around Floyd’s drug use.
“It’s not any secret to anybody that George Floyd like so many of peoples’ family members struggled with addiction,” she said. “And that’s not something the state is hiding from. Nobody is hiding from the idea that he had a very large amount of fentanyl in his system.”
The medical examiner noted that the amount could be fatal for some people, but Moriarty said that is “not relevant.”
“What’s relevant in this particular trial is what Chauvin’s actions were,” Moriarty said. “You take your victim as you find them. It doesn’t matter that somebody has a drug addiction, that they were using drugs at the time. That they had a heart condition. None of that matters. What really matters is can the state prove beyond a reasonable doubt that Chauvin’s actions were a substantial cause of his death.”
Nelson said Floyd was likely on a “speedball,” a concoction that includes an opioid and a stimulant mix and he told jurors they could see the police car rocking back and forth in street surveillance footage as officers struggled trying to get Floyd first into the backseat of the car, before they put him handcuffed, face-down on the street.
Because Chauvin is 5-foot-9 and about 140 pounds while Floyd is more than 6 feet tall and weighed more than 220 pounds, Nelson said it was harder for Chauvin to control Floyd, but Nelson said Chauvin did with one leg on Floyd’s shoulder blade and another on his arm.
“This was not an easy struggle,” Nelson told jurors, adding that “the use of force is not attractive, but it is a necessary component of policing.”
Kassandra Frederique, executive director of the New York-based nonprofit Drug Policy Alliance, which aims to legalize all illicit drug use, said in a statement that it was “unconscionable, but not at all surprising” for the defense to open its trial arguing that drugs were what actually killed Floyd.
“The deep-seated structural racism and stigma around people who use drugs lead to horrific outcomes across the country,” Frederique said. “Until we dispense with the notion that people involved with drugs — or even thought to be involved with drugs — are not guaranteed the same right to dignity and life, we will continue to fight.”
What actually killed George Floyd?
That’s the crux of the case.
An autopsy conducted by the Hennepin County medical examiner ruled Floyd’s death a homicide, which was due to cardiopulmonary arrest complicated by “law enforcement subdual (being subdued), restraint and neck compression.” A toxicology report showed fentanyl and methamphetamine in Floyd’s system.
The federal Armed Forces Medical Examiner System, which reviewed that autopsy, said the “subdual and restraint had elements of positional and mechanical asphyxiation.”
The Justice Department asked the Office of the Army Medical Examiner to take a look as they were possibly doing a federal investigation, Moriarty said.
Another, separate autopsy conducted by independent forensic pathologists at the request of Floyd’s family, found the mechanism of death to be “asphyxia.”
Nelson told jurors that the state had not been happy with the autopsy results and went elsewhere for a better finding.
The autopsies all agreed the cause of death was homicide caused by the police officers’ actions, and that the restraint and compression caused his death, Moriarty said. But she said they disagreed as to whether his breathing was what was cut off or if it was the blood supply to his brain that was cut off — and caused his death.
The prosecution said it would show jurors the exact moment that Floyd stopped breathing and went into an “anoxic seizure” due to the lack of oxygen and his body made sporadic movements as a natural response. Blackwell also spoke about “agonal breathing,” which is a brainstem reflex rather than true breathing.
Nelson said that the cause of death is the major issue of the trial that the jurors will have to decide upon, and he disputed that Floyd died of asphyxia. He said there were “no bruises” on Floyd’s neck even when the skin was peeled back to the level of the muscles there was no petechial hemorrhaging.
“What he was talking about are telltale signs of strangulation, but nobody is saying he was strangled,” Moriarty said.
Nelson urged jurors to be reasonable, use “common sense” and focus on the evidence.
“What was Mr. Floyd’s actual cause of death?” Nelson said. “The evidence will show that Mr. Floyd died of a cardiac arrhythmia that occurred as a result of hypertension, coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body – all of which acted to further compromise an already compromised heart.”
Nelson said “there is no political or social cause in this court.” He said Chauvin “did exactly what he had been trained to do over the course of his 19-year career.”
Follow USA TODAY National Correspondent Tami Abdollah, who is covering the Derek Chauvin trial, at @latams