Can Derek Chauvin possibly be acquitted?

Essentially,  all we have heard in the trial of police officer Derek Chauvin for the murder of  George Floyd are the lawyers’ opening statements. Opening statements are not evidence. They are merely meant to be presentations of counsel as to what they intend to prove. Typically, they are matter of fact, and not emotional — just the facts, ma’am. The opening statements in this trial ran true to form.

Chauvin is standing trial on three counts of intentional homicide in attempting to accomplish an arrest. If convicted, he could receive as much as 40 years in prison.

It had been unusual that a murder is recorded on videotape. Welcome to the digital age. Here, the tale of the tapes is familiar and damning. Floyd was defenseless, face down on the ground, handcuffed behind his back. His body appears flaccid; his head twisted to one side.

The objective of the officers was to effect the arrest. One officer pinned Floyd’s legs to the ground. A second officer pinned his midsection. Using his left knee, Chauvin pinned Floyd’s neck to the ground. He did so for more than nine minutes. How many trained officers does it take to subdue an unarmed citizen?

The standards for the use of force imposed on police are stern and familiar to every trained police officer. Only use appropriate and necessary force; only use force if the perpetrator is resisting arrest; only use reasonable force necessary to overcome resistance. What may be reasonable while the defendant is resisting may become unreasonable. When resistance ceases, force must stop.   

In our legal system, guilt in a criminal case must be established to the satisfaction of each juror beyond a reasonable doubt, not beyond all possible doubt, only beyond a reasonable doubt — the kind of doubt that would make you hesitate using common sense. The kind of common sense the juror uses in his or her daily life. The burden of proof is on the prosecutor, and that burden never shifts. Pretty heavy stuff.

In presenting a preview of Chauvin’s case, defense attorney Eric Nelson made a reasoned argument. In dry tones without emotion, he attempted to sow the seeds of reasonable doubt in the minds of the jury. The use of force was reasonable. Floyd had initially resisted arrest. Officers had to struggle to get him into their squad car. He was under the influence of “speedballs,” an illegal pill found on his person and in his system, which is a combination of speed and fentanyl, a powerful synthetic opioid more potent than morphine. It was a “rapidly evolving situation” where a routine arrest escalated to a deadly encounter with the police.

Nelson pinned much of his argument on the cause of death. Floyd suffered from a heart severely compromised by hypertension and cardiac arrythmias. His medical condition was further compromised by the use of drugs and alcohol. The autopsy revealed none of the telltale signs of asphyxiation — no hemorrhaging, no injuries to the structures of the neck (broken bones or cartilage). Moreover, in most instances of manual strangulation, the victim loses consciousness in 10 seconds and dies in three to five minutes. Here Chauvin knelt on Floyd for nine minutes and 29 seconds, and Floyd was still alive when Chauvin finally got up, which the defense will contend strongly suggests that the pressure on Floyd’s neck was minimal, not lethal.

The medical examiner found that Floyd’s death was attributable to the pressure applied to his neck and torso, in combination, which restricted his oxygenated blood flow, and resulted in cardiac arrest. Experts say that just a few pounds of pressure on the veins of the neck can significantly inhibit blood flow. And just a few pounds of pressure on the torso at the same time makes it even more difficult to draw oxygen into the lungs. This led to a lethal mixture of force and restraint, which caused Floyd’s heart to stop.

The defense surely intends to call its own experts to refute the medical examiner’s finding. They will likely pin it all on Floyd’s drug use and pre-existing medical conditions in an effort to cast doubt upon the proof.

The law, however, is that the knee on the neck need not be the sole cause of death, if it is a significantly contributing cause. The trial is sure to include a battle of the experts as to the cause of death. 

It is too early in the trial to predict the outcome, and it remains to be seen whether Chauvin may have some evidence to convince the racially diverse jury that he followed accepted police procedures, and that Floyd died of drug use and a pre-existing heart condition.

Although Nelson cautioned the jury that politics and emotion had no place in the courtroom, it is still difficult to imagine that the painfully chilling image of a white police officer kneeling on the neck of an unarmed Black man arrested for a relatively trivial crime will not be the elephant in the room. 

James D. Zirin is a former federal prosecutor.