On the Trial of Derek Chauvin

1.

As everyone knows, Derek Chauvin is a Minneapolis police officer who killed George Floyd, an African-American, while making an arrest for passing a counterfeit twenty dollar bill.  Floyd’s killing was recorded by cell-phone video shot by a witness as well as by body-cams on the arresting officers.  (Four police were involved in the botched arrest, a multi-racial posse under the command of Chauvin, who is White, and consisting of a cop of Hmong or Laotian ethnicity, an African-American and another White officer.)  A surveillance camera mounted on a building across the street also offered a different perspective on the scene.  Floyd died in broad daylight and I don’t recall a homicide that was so thoroughly documented by clear visual images.

Pictures showing Floyd’s death were broadcast on all networks around the world.  What people saw was an arrogant-looking White cop kneeling on the back of a helpless Black man’s neck.  The crowd gathered to witness the arrest was reasonably well-mannered and, except for a few outraged insults, did nothing to interfere with the arrest that turned into a killing by asphyxiation.  Chauvin apparently knelt on Floyd for four minutes after the suspect had become unresponsive and, so, it seemed pretty clear that not only had the cop killed Chauvin but, also, interfered with any effort that could have been made to resuscitate him.  

Most instances of police brutality are ambiguous.  In this situation, however, it is hard to imagine any excuse for continuing to kneel on a handcuffed suspect who has passed out and seems to be dying.  However, there are no “perfect victims,” particularly with respect to excessive use of police force.  Although avuncular and well-liked by those who knew him, Floyd seems to have been a drug addict prone to committing petty crimes when in the throes of his substance abuse.  There is no doubt that he vigorously resisted his arrest and repeatedly claimed that he “couldn’t breathe” in circumstances in which this was objectively not true – although, of course, this complaint became true when he was crushed on the concrete under the cop’s knee.  (Some have suggested that Floyd’s initial untrue assertion that he “couldn’t breathe” related to some kind of panic-attack.)  Furthermore, Floyd’s death occurred as a result of a combination of factors which, certainly, included overdose quantities of Fentanyl and other narcotics in his system.  It also appears that the initial efforts by the police to implement Floyd’s arrest were reasonable.  The encounter lasted about 17 minutes.  Blatantly unreasonable use of force seems clear during the last four to five minutes of the episode.  

Chauvin was convicted after a trial in the county where the killing occurred that lasted about four weeks.  The police officer was convicted on all homicide counts in a circus-like atmosphere involving street protests, visits by various famous Civil Rights leaders, and the death of another young African-American man, accidentally killed in a traffic stop (the cop deployed her gun instead of her taser and shot the kid) in a nearby suburb.  This shooting occurred while the jury was deliberating.  Under any fair assessment of the situation, Chauvin didn’t receive a fair trial primarily due to the circumstances surrounding the proceedings.  Before the Trial began, the City of Minneapolis paid a well-publicized and ludicrously enormous settlement to the Floyd family (27 million dollars), thereby, expressing in the only way available to a municipal entity obvious contrition and, indeed, shame over the killing – this settlement, of course, created the prejudicial appearance that Chauvin was not just guilty but damned guilty.  One of the jurors, who swore no involvement with the Black Lives Matter organization, a social justice movement that opposes police brutality, seems to have dissembled during jury selection  – but, in fact, he attended a protest march closely aligned with demonstrations arising from Floyd’s death and was photographed wearing a sweat shirt on which the words “KEEP YOUR KNEES OFF OUR NECKS” (or something to that effect) were prominently displayed.  The liberal media, who convicted Chauvin daily or, even, hourly on some occasions, beginning with their reports on opening statements, have pooh-poohed that notion that this juror’s conduct might be grounds for a new trial.  But this assertion is based upon two factors that may not be entirely rational – first, Chauvin was deemed by the media guilty of all charges regardless of what might happen at the trial (the courtroom proceedings were, in effect, designed as a “show trial”) and, so, there are strong elements of confirmation bias in their reporting; and, second, one can well imagine the furor that would have resulted if a White juror had been photographed wearing a Blue Lives Matter or Thin Blue Line (support the police) tee-shirt.  Most likely, this juror’s misconduct, if it exists, will be considered “harmless error” and, therefore, not grounds for a successful appeal.

Not all trials are fair.  In fact, some trials are so high-profile that they can’t be fairly conducted.  Viewed objectively, State v. Chauvin was embedded in a historical moment in which, viewed in the totality of its circumstances, a fair trial was functionally impossible.  That doesn’t mean that the outcome of the trial is necessarily unfair or unjust – to the contrary, a trial may be procedurally unfair but result in a verdict that is just.  However, law focuses on procedural guarantees and, it seems questionable to me, that Chauvin’s trial was fairly conducted.  

2.

There are many kinds of police work.  However, if we focus on patrol policing – that is, the cop on his or her beat – encounters with the public follow a certain specific and limited logic.  This logic consists of two elements: first, the cop commands and the person encountered complies; second the cop demands some kind of submission and the person interacting with the cop submits.  If a person encountered by the cop ignores a direct command or resists it, then, the encounter becomes dysfunctional – that is, the theorem that the cop is trying to establish on the street can’t be proven.  This is why police react with irrational ferocity when their commands are ignored.  In general, however, people are disposed to oppose direct commands.  Our society is largely permissive and egalitarian in theory and most people don’t have military experience in which commands and orders are operative and must be obeyed.  Therefore, it is a natural inclination to resist a direct order.  Police militarize their encounters with the public and regard suspects (or those they encounter) as subordinate – this is intrinsic to the structure of a command that must be obeyed.  It is important to realize that defying a direct command made by person authorized to issue that order undercuts the very system on which policing is based – defiance of a command, therefore, subverts the logic of policing and will trigger a violent response.  

3.

It was initially declared that Chauvin kneeled on George Floyd’s neck for 8 minutes and 46 seconds.  Then, this figure was revised downward to 7 minutes and 46 seconds.  (No one knows why this reduction in time was alleged.)  At trial, the various videos showed Chauvin kneeling on George Floyd’s neck for 9 minutes and 29 seconds.  Floyd was handcuffed and crying out for help for four minutes and 45 seconds.  He seemed to flail around with seizures for 53 seconds.  Chauvin continued to kneel on Floyd’s neck for 3 minutes and 51 seconds after he was unresponsive and, perhaps, even clinically dead for part of that period.  There was controversy as to whether kneeling on the back of Floyd’s neck during the first four minutes and 45 seconds was reasonable – some interpretations of police policy might support that tactic for restraining Floyd since he physically resisted arrest even after being handcuffed.  (However, most likely Floyd was effectively helpless after the handcuffs were applied and so the use of the knee of the neck in that context probably was an unreasonable and excessive use of force.)  I suppose that Chauvin may have been confused by Floyd’s spasms while suffering an apparent seizure – perhaps, he interpreted that spasmodic activity as an attempt to escape or wriggle free.  But there is no rational warrant to continue kneeling on Floyd’s neck after he had become unresponsive.  That conduct seems pretty clearly indicative of a malign, criminal intent to inflict great bodily injury on the suspect.  

The defense argued that the last nine minutes and 29 seconds of the encounter had to judged in the context of the altercation during the first eight minutes in which Floyd resisted arrest. (Footage of that part of the arrest was not available to the public before the trial and has not been widely disseminated after the verdict; this is because news organizations are not inclined to show video clips exceeding a few minutes and one would have to devote more than 15 minutes of viewing time to assess the entire cncounter.)  The defense lawyer’s position, an argument that I think had some limited merit, was that what occurred at the end of the lethal interaction had to be viewed in light of what took place earlier.  

4.

Everyone has an opinion on the incident involving George Floyd’s death.  But, fundamentally, there are only 12 people in all the world whose opinion matters – and they have spoken.

5.

A week ago an event occurred at my law office.  This event has affected my own views on the encounter between Derek Chauvin and George Floyd.  Here’s what happened:  

A few months ago, someone who plays poker with my partners, Marty and Steve, prevailed upon them to authorize a client of C– V– Rehabiliation Systems (“CVR”) to perform shredding services for us.  Initially, the idea was to deliver documents requiring shredding to CVR every couple weeks and let them process the paper into illegible ribbons at their facility.  But Steve pointed out that this was imprudent and could lead to a breach of attorney-client confidentiality if some of these documents went astray.  So, the idea was revised to involve the disabled man coming to our office in the custody of his “minder” or attendant, shredding the documents on-site, and, then, receiving some nominal payment from our firm.  Under the obsolescent “people’s socialism” in USSR, a joke circulated that under that regime, “workers would pretend to work” and the employers “would pretend to pay them.”  With regard to the arrangement with CVR, a similar system prevailed at our office.  The mentally disabled guy would come with his attendant, ineptly cram some paper into a shredder, and, then, we would give his warden eight dollars or something on that order.  The notion was that work imparts dignity and meaning to life and this arrangement would be beneficial to the handicapped person. And the shredding agreement, apparently, worked out without incident for awhile.  I don’t recall ever seeing the CVR worker in our office; similarly, I don’t recall seeing his attendant either.  

On Thursday last week (April 29, 2021), I was working in my basement office.  Something had come up just before noon and I had to figure some things out, make a decision, and, then, get a letter dictated.  My paralegal, Rhonda wasn’t around and so I was alone downstairs.  I worked over the noon hour.  My partner, Marty, had gone to lunch.  The other offices upstairs were empty.  Our real estate closing paralegal wasn’t on-site and, my other partner, Steve had gone to the golf course.  So it was just me together with Lori W., a secretary, and Kayla, the receptionist.  

About five minutes after one, I heard an unearthly high-pitched howl and, then, a tremendous crashing sound.  I was startled and just about fell out of my chair.  The howl shattered into a series of wordless barking sounds and, then, something was flung against a wall so forcefully that I could hear the projectile shattering.  There was another protracted howl, really more of an enraged bellowing sound and, then, thudding that sounded like bombs falling on the hollow floor above my head.  My office is none too solidly built (it was put together from pre-fabricated trusses and panels forty two years ago) and I expected the detonations to flex the walls and spurt out my window into the window well, a concrete pit above my desk and, in fact, the whole building rattled as if under the fists of a tornado.  I thought it was a storm, perhaps, trying to batter down the building, but when I pulled apart my curtains, I could see the sky hot and cloudless up to the zenith overhead.  Maybe, it was an earthquake but we don’t have those around here, right?

Someone was braying upstairs, a bestial noise like an animal being slaughtered.  This was very frightening.  But, of course, like all true heroes I ran in the direction of the danger, charging into harm’s way as others were fleeing – I heard their feet pattering across the floor above me.  I dashed up the steps and rounded the toilet corner in the short corridor leading the reception area, wondering if it might not be prudent to simply conceal myself in the rest room behind a locked door.  More thunderous bangs came from the lobby and someone was now screaming in a high-pitched voice.  The racket sent a chill up my spine. 

Stepping into the lobby, I first saw a great fan of documents spread across the floor, a paper delta paving the carpet from the entry door all the way to the front desk.  Kayla was standing behind the signing station with an appalled look on her face.  A couple pounds of shredded paper, ripped into fine confetti-like streamers, were heaped next to the entry, and, with each wild shriek, the volume of air displaced by the scream upset the debris and caused the cellulose fiber to flutter around like dead leaves in an autumn storm.

On the floor, near the east wall, a burly, bald-headed thug was outstretched on top of slender man who was howling and kicking at the floor.  The thug’s shirt was disarranged and I could see his green tattoos like moss on his straining biceps.  The man’s victim was writhing and screaming in pain.  I stepped forward fully prepared to kick the thug in the throat – but I was wearing soft tennis shoes and I wondered whether the burly man’s throat might not be covered in an armature of taut, hard muscle that might break my toes.  So I looked around for something that I could use as a club to beat the guy away from the little fellow wriggling in the heaps of scattered paper.  I stepped toward fray, hesitating about how best to attack the burly villain with the shaved-head.  The chairs in the lobby are separated as per proper Covid protocols and, on the furniture forbidden to the rumps of our clients, there are positioned either art books (courtesy of yours truly) or children’s picture books.  Two of the chairs were upside down.  An antique map of Minnesota displayed on our wall had fallen and the framed chart was half-hidden in the litter of paper.  The art books were strewn all around the area where the combat was underway.

I asked the two men tangled together on the floor:  “Is there something I can do to help you?”  

The burly thug said: “No, I’ve got this under control.”

I turned to Kayla.  “What is going on here?”  

She told me that a “mentally challenged individual” had become agitated and was now flailing around on lobby’s carpet.  I thought that I should maybe ask her which of the two combatants was the retarded guy and which the minder.  But, after surveying the situation, I figured out that the guy with the shaved head and tattoos was employed by CVR and the wiry little fellow shrieking and clawing at the carpet was his client, the fellow retained by our office to shred documents.  

I stepped over to the wrestling match and asked again: “Can I help you somehow?”

“No,” the bald guy said, “I’ve got this under control.”

At that moment, the “mentally challenged” guy wriggled to the side and, then, rising up to his knees, pitched the attendant to the side. As his charge tried to stand, the attendant hurled himself onto the man again, smashing his head onto the carpet.  I was concerned that they were getting too close to one of the upright chairs still standing in the lobby and, so, I pushed it aside.  The retarded guy had thrust out his hands and was trying to grapple to himself one of the chairs as if to enlist the furniture to in his battle with the attendant.   

“Are you okay?” I asked the CVR minder.

“Yep,” he said.  “I’ve got this completely under control.”

The little man began to punch himself in the side of the head.  He was aiming his blows at the burly guy with the shaved head, but the man on top of him had his arm partly pinned and so the punches were landing short, on the mentally challenged man’s jaw and chin.  

I looked outside and saw a client approaching the door.  This man was a mild-mannered-looking elderly gent, walking slowly with a cane.  He was clutching to his polo-shirted breast a little satchel from which the top of an abstract peeked out like a friendly rabbit or vole.  I unlocked our front door (always locked from the inside for Covid) and went to greet the client.

“Can I help you?” I asked.

The old man looked a little bemused.  I think he felt he had the situation under control.  I told him that he couldn’t enter the lobby just now because we were having an “incident”.  The old man was baffled and I could see he was yearning to see what was going on.  I asked him the name of the lawyer for whom the documents were intended.  “Marty H– ” the man said.  “Okay,” I assured him, “I’ll get the documents to him right away.”  I reached forward and snatched the package containing the abstract.

A little saddened that he wasn’t afforded a perspective on the exciting events in our lobby, he turned and leaning on his cane limped back to his Subaru.

I went back into the lobby.  The mentally challenged fellow had wormed his way into a corner between two chairs and was trying to buck the CVR worker onto the sharp point of an upturned leg of a chair.  

“Is this all okay?” I asked.

“Oh yes,” the guy with the shaved headed panted.  “I have this under control.”  The retarded man began to kick against the floor and unshredded documents splashed up into the air and, then, he began wailing: “No, No, NOOOOOOOOOOOOOOOO!”

I told Kayla to call the cops.  “Dial 911 and get them here right away!  Someone is going to get badly hurt...”

Kayla called the cops.  

Around this time, Marty H– came into the lobby.  He was a bit non-plussed.  The bald guy knew Marty. 

Marty asked him if there was anything he could do to assist him.  The skinny man seemed to be trying to burrow into the floor.  He was scratching at the carpet with his fingernails and drumming his toes into the carpet.  The idea, I suppose, was to open up a fissure in the floor and, then, slip down through it. 

“Could you take my phone out of my pocket?” the burly minder said.

Adroitly, Marty fished the phone from the man’s breast pocket.  The man barked out some numbers that I took to be a pass-code and, then, asked Marty to call Carol.  Apparently, Carol’s number was registered among recent phone calls.  Marty placed the call and, then, stooped to hold the phone to the burly man’s ear.  He said that there was a problem at the law firm and that Carol should come immediately.

About this time, two cops showed up.  Restraining a madman in a law firm seemed the last thing that they wanted to do – indeed, it was pretty apparent that they didn’t want anything at all to do with the situation, wouldn’t touch it with a ten-foot long police baton, and, probably, thought that they were being lured into doing a “George Floyd.”  You know how it goes: you try so hard not to do something bad; indeed, you obsessively promise to yourself that you are going to resist the temptation to taze a vulnerable adult, that you won’t beat anyone up or use the handcuffs to dislocate someone’s shoulder or pepperspray anyone in the eyes even if they fucking deserve it (which they do!) – this is always on your mind because enemies of the thin blue line are everywhere and they are constantly watching, eyes on the alert hoping to film some infraction that will end up on the Nightly Evening News and, so, you simply have to keep repeating to yourself this simple mantra – “I will not brutalize anyone, I will not brutalize anyone, I will avoid the temptation of beatingmacingtazingshooting anyone, yes, indeed, this is my objective – no violence, none at all...”  And, of course, the more you repeat to yourself that there will be no beatingmacingtazingshooting, no violence at all, then... well, you know how it goes!  Oops! you just inadvertently fucking beat-maced-tazed-or shot someone and, then, in technicolor and surroundsound suitable for broadcast on Cable New.  And, then what?  So these cops were understandably reluctant to join the fray, very skittish about really doing anything at all except kibbutzing about the situation in low reassuring tones and, then, calling for more back-up because, after all, misery loves company –

The idea was to de-escalate the struggle which had now become tediously protracted.   One of the cops remarked that it was a very nice day outside and that, perhaps, it would be nice to go outside and enjoy the sunshine.  The mentally challenged guy didn’t take the bait and just howled like a dog imitating an ambulance siren.  The other cop said something also about the nice day.  The burly guy with the shaved head said: “Come on, do you want the police to have to put you in handcuffs?”  This was catnip to the struggling man on the floor: “Yes! Yes!” he wailed, “I want to be handcuffed.”  One of the cops said: “Come on, you don’t us to take you to jail, do you?”  This was also the wrong question to pose.  “I wanna go to jail,” the guy shrieked.  “I wanna be in jail.”

There was no end in sight to the struggle.  The cops were now kneeling next to the man and, in fact, getting dangerously close to putting their knees on his spine, if not his neck, and I couldn’t see any good outcome to this wrestling match.  I told Marty that I couldn’t stand to watch this: “I’m going home to have my lunch.”  I said.

As I walked out the front door, a van skidded up to the sidewalk outside, sliding into a parking space all kitty-wampus, as people used to say.  Then, the side of the van burst open and a fat girl leaped out and ran toward the front door of the law office, sprinting and waddling with her head down, bosoms flopping all over the place.  She didn’t say a word as she brushed by me and charged into the office.

I went home and watched the news for an hour.  I reflected on the fact that what you see doesn’t always show the whole picture.  In fact, what you see may be positively misleading.  If I had used my cell-phone to record the Battle of the Law Firm Lobby and, then, leaked the images to CNN, let’s say, the headline would be “Two Cops and Fat Bully restrain mentally handicapped Individual”. There’s no doubt that at one point, both cops were on the floor with their hands on the “vulnerable adult” as Kayla called him, their knees no doubt itching with the desire to crush him under their weight, and this was in addition to the big bald man who was pressing down on the guy with all of his not inconsiderable mass.  Probably, a mere snapshot of the fracas, filmed for a minute or so (or, dare I say, nine minutes and 29 seconds?) wouldn’t exactly tell the whole story.  It would tell some of the story, no doubt, but not the whole story.  Context would be lacking.

After lunch, the lobby was cleaned-up and there was no sign of the bald thug or the madman and the cops were gone as well.  Marty told me that another fat girl from the Group Home (CVR) showed up a minute or two after I had departed the scene and the two young women coaxed the “vulnerable adult” to abandoning the fight.  No one had to be beat-maced-tazed or shot.  The guy simply walked out under his own power to one of the CVR vans and so that was the end of it.  I never learned exactly what triggered the retarded guy’s rage.  Someone said that he hadn’t taken some of his customary medications that morning, that he was agitated at the shredding job that preceded our appointment, and that he had simply and decisively said that he was all done with shredding for the day, a declaration made as he was entering our premises, and that he later repeated in a tone that brooked no commentary nor response and that a little later, when his minder told that there was just a little shredding remaining before his day’s labor was complete, the mentally challenged fellow again demurred and remarked that he preferred not to do any more shredding.  This was supposedly a few minutes before the outburst.  

6.

Everyone who peruses this writing should also read George Orwell’s 1936 essay, “Shooting an Elephant.”  I insist upon it.  Eric Blair, Orwell’s real name, worked for a time as a colonial law officer in Burma.  In that capacity, Blair was called to the outskirts of a town where a domesticated elephant had run amok and trampled a man to death.  Blair found the great beast peacefully grazing in the rice paddy near the bloody corpse, apparently tame once more, and the cop didn’t see any reason to murder the elephant.  But a crowd of colonial subjects had gathered and they demanded that the cop kill the animal.  After some hesitation, Orwell tells us that he shot the elephant solely “to avoid looking a fool” in the eyes of the large crowd of local people watching him.

Orwell says that as a representative of the oppressive colonial power, he felt compelled to behave as the so-called “natives’ expected.  “When the White man turns tyrant,” Orwell writes, “it is his own freedom that he destroys.” Colonial police do the “dirty work of Empire at close quarters,” Orwell adds. “It is a condition of his rule (as a colonial authority) that he must impress the ‘natives’.”

The incident reported in “Shooting an Elephant” is supposed to have happened in Moulmein in northern Burma in 1926.  But there is no contemporary account of the encounter between Eric Blair and the rogue elephant.  Animals of this kind were valuable and, probably, worth more in the Burmese economy than the “coolie” that the elephant killed.  So one would expect some record to exist.

Critics have suggested that Orwell invented the encounter to express certain truths about Imperialism.  Orwell’s widow was outraged by these suggestions: “Of course, he shot a fucking elephant,” she remarked,” he said he did.”  

7.

I began practicing law forty-two years ago in a world that was not under constant surveillance.  In many lawsuits on which I “cut my teeth”, the attorneys would speculate, usually over beers, about what had really happened in the incident giving rise to the encounter.  If only a video existed showing the occurrence that we were litigating? – images of that kind would answer all questions.  

Now, moving picture imagery does exist of many things no one expected to see documented in 1979.  In particular, we now know what policing looks like.  Of course, I was naive in my faith that video imagery would resolve all disputed questions.  In many cases, pictures of an event merely raise more questions than they answer.

Seeing is never direct and unmediated.  In fact, we have to learn how to see.  Vision is processed through prisms of bias and expectation.  Not always but, sometimes, the more you watch footage of a controversial encounter, the less you know.

May 7, 2021