Editor’s Note: Elie Honig is a CNN legal analyst and former federal and state prosecutor. The views expressed in this commentary are his own. Read more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” on weekends.
We have a jury in the trial of former Minneapolis police officer Derek Chauvin, charged with the May 2020 killing of George Floyd. Now we stand on the precipice of one of the most important trials this country has ever seen.
Anybody who tells you they know for sure what any jury will do has never tried a case. Juries are, after all, collections of human beings, and we humans are nothing if not mercurial. The uncertainty becomes even more pronounced in a case involving the police. Multiply it again when the case involves race.
While there is no way to predict how the Chauvin jury ultimately will decide, to this point the pretrial criminal justice process has held up well. Judge Peter Cahill and the parties have done their jobs, setting the stage for the jurors to do theirs.
Most importantly, Judge Cahill wisely denied multiple defense motions to move the case out of Hennepin County (where Minneapolis is located). Chauvin’s defense team first tried this tack before jury selection began, and the judge denied it.
Then, when news broke during jury selection that the city of Minneapolis had reached a civil settlement with Floyd’s family for $27 million, the defense raised the issue again. The judge, again, refused to move the trial.
The defense argued that publicity around the case generally (and then the settlement, specifically) would compromise Chauvin’s right to a fair jury trial in Hennepin County. Judge Cahill sensibly concluded that “I don’t think there’s any place in the state of Minnesota that has not been subjected to extreme amounts of publicity on this case.”
A transfer of the case out of Hennepin County would have been disastrous both for the trial itself and for public faith in the trial’s fundamental fairness. Any such transfer would have resulted in the case being tried in a different county than where the charged crime occurred, which in itself would raise questions about fairness.
And, critically, a transfer would ensure a less racially diverse jury pool.
Hennepin County is Minnesota’s most populous county, and also has the highest percentage of African American residents, about 13.6%. Only one other Minnesota county has above 10% African American population, and 47 counties are below 1%. To move the trial would all but ensure a jury comprised of fewer African Americans than in Hennepin County, and a verdict from such a jury could lack legitimacy in the eyes of the general public.
As it turns out, the Chauvin jury is actually substantially more racially diverse than the population of Hennepin County itself. Of the 15 jurors (including three who will serve only as alternates), nine are White, four are Black and two are mixed race, according to the jurors’ self-identifications in court.
The jury’s diversity is a good thing. Imagine the opposite scenario, where the Chauvin jury was substantially less racially diverse than Hennepin County and included only one, or even zero, Black jurors. The public would justifiably question the jury selection process, and an acquittal from such a jury would be difficult to accept as legitimate.
Now that the jury is seated, the prosecution will present its case first and must satisfy its burden to prove the charged crimes beyond a reasonable doubt. We’ve likely already seen Exhibit A for the prosecution: the bystander video of Chauvin pinning his body weight through his knee on Floyd’s neck, while Floyd was handcuffed, for eight minutes and 46 seconds.
This video, on its own, should go far toward the prosecution’s ultimate goal: establishing that Chauvin intentionally assaulted Floyd, resulting in his death (to prove the charged second-degree murder), acted with “depraved mind, without regard for human life” (to prove the charged third-degree murder) or acted negligently (to prove second-degree manslaughter). The jury ultimately can choose to convict or acquit Chauvin on all, some or none of these charges.
Expect also to hear from some of the bystander eyewitnesses, and the independent medical examiner hired by Floyd’s family who concluded that Floyd’s death was a homicide caused by “asphyxiation from sustained pressure.” (The Hennepin County medical examiner who conducted the autopsy also found that the cause of death was homicide, but he determined that Floyd died not because of asphyxiation but rather because of, essentially, a heart attack brought on by Chauvin’s actions: “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression”).
We almost certainly will not hear from Chauvin or the other three charged former officers, all of whom can invoke their Fifth Amendment rights against self-incrimination to avoid testifying.
As straightforward as the prosecution’s case might be at first glance – almost a “just hit play on the tape” kind of case, as prosecutors sometimes say – rest assured, Chauvin’s defense will put up a fight.
First, expect the defense to argue that Chauvin did not cause Floyd’s death. The defense may look to exploit the aforementioned differences in the opinions of medical examiners, though both conclude that Chauvin’s actions contribute to or caused Floyd’s death in some manner.
The defense also may argue that Floyd in fact died of a drug overdose. Toxicology reports show that Floyd had both methamphetamines and fentanyl in his blood at the time of his death. And Judge Cahill has ruled that the defense can offer limited evidence of a 2019 arrest during which Floyd purportedly swallowed drugs during a police encounter; the defense may argue that Floyd did the same when Chauvin encountered him in 2020.
The defense also may claim that Chauvin’s actions were necessary to physically restrain Floyd and take him into custody. Some surveillance video evidence appears to show Floyd at least temporarily struggling with police officers at the scene. This is a risky tack for the defense, however, because the relevant question is not whether Floyd ever struggled with police officers, but whether Chauvin used excessive force when, after he already had Floyd rear-handcuffed and face-down on the ground, he pinned his knee to Floyd’s neck for over eight minutes.
Opening arguments start Monday. Thus far, the jury trial process has worked as designed. The outcome is anything but certain, and the stakes – for the entire country – are enormous.
Now, your questions
Patrick (Oregon): Could federal criminal charges still be filed against the officers involved in the death of George Floyd?
Yes. The Justice Department reportedly has convened a grand jury to investigate Chauvin, and could bring federal charges for deprivation of civil rights under color of law – meaning, essentially, that Chauvin, while exercising his official power, intentionally and knowingly deprived Floyd of life and liberty. In 2019, the US Supreme Court upheld the “separate sovereigns” doctrine, which established that there is no legal bar to both federal and state prosecutors charging the same person for the same conduct.
So the Justice Department can charge Chauvin if it sees fit, even though Chauvin already faces charges from Minnesota state prosecutors. As a practical matter, the Justice Department likely will wait to see the state jury’s verdict in the Chauvin trial before deciding whether to bring separate federal charges.
Hilda (Nevada): Could prosecutors have charged Chauvin with first-degree murder?
As discussed above, Minnesota prosecutors have charged Chauvin with various second- and third-degree murder and manslaughter charges. A first-degree murder charge would have been difficult, though not impossible, for prosecutors to sustain.
Under Minnesota law, first-degree murder must be both intentional and premeditated. Regarding intentionality, Minnesota prosecutors have not alleged in the current second-degree murder charge that Chauvin intentionally killed Floyd, but rather that he intentionally assaulted Floyd, resulting in Floyd’s death.
Obviously, it is easier to prove intent to assault than intent to kill.
Regarding the premeditation element of first-degree murder, the law does not specify any particular time requirement. There’s a common perception that premeditation requires careful planning, well in advance, like a group of mobsters might carefully plot out an orchestrated hit. While that type of plotting certainly would qualify as premeditation, the law does not require such careful or methodical premeditation.
The argument for premeditation is that, at some point during the eight-plus minutes when Chauvin kneeled on Floyd’s neck – during which Floyd stated “I can’t breathe” and “Don’t kill me” – Chauvin had to have become fully aware that he was about to kill Floyd.
Yet Chauvin, knowing what his actions would do, made a decision to continue kneeling on Floyd’s neck. But Minnesota prosecutors have taken a more conservative approach and have not charged a first-degree murder, which is arguably more difficult to prove than a second-degree charge.