Jury selection is set to begin Monday in the trial of a former Minneapolis police officer accused of killing George Floyd amid fresh uncertainty as a new court ruling threatens to delay the start of the trial.
Even before jury selection begins, Hennepin County District Judge Peter Cahill is likely to face motions to reinstate a third-degree murder charge and possibly postpone jury selection to give lawyers time to prepare for the new charge.
The Court of Appeals ruled late last week that Cahill erred in dismissing the third-degree murder charge against Derek Chauvin. The court asked Cahill to reconsider the charge, leaving an uncertain path forward in a high stakes trial being watched around the world.
Chauvin is facing charges of second-degree murder and manslaughter in Floyd's death last May, an incident a bystander captured on video and broadcast around the world. The death touched off days of violent demonstrations in Minneapolis and across the country.
The latest trial intrigue comes at a time of intense and anxious scrutiny in the midst of a national racial reckoning over policing.
Community organizers seeking Chauvin's conviction have staged a handful of peaceful protests in recent days, but George Floyd Square, at the intersection of E. 38th Street and Chicago Avenue where Floyd died, has grown increasingly tense. On Saturday night, someone was fatally shot at the perimeter set up by community leaders. Hundreds marched Sunday in Minneapolis, calling for justice for all people killed by police.
It will be the fourth time in modern Minnesota history that an officer has been tried for killing a civilian on the job, but Chauvin's case diverges on a key point — it's the first time a white officer in the state is being tried in the killing of a Black person, an issue Black residents have long decried to mixed reception from the public, prosecutors and police.
"There's more than Derek Chauvin on trial here," said defense attorney A.L. Brown, who is not involved in the case. "The entire public — in fact a great deal of the world — is wanting to know if the justice system can produce justice."
Local attorneys, legal scholars and advocates said prosecutors and defense attorneys will have to overcome a host of challenges to win their case, which will also serve as a test of the criminal justice system in the wake of other killings involving police across the country that have gone unprosecuted. In a first for Minnesota, Chauvin's trial will be publicly livestreamed.
Jury selection begins at 9 a.m. Monday and is scheduled for three weeks. Opening statements are scheduled to begin March 29, with testimony to start that day and continue for two to four weeks. More than 370 people have been listed as potential witnesses; it's unknown how many will be called to testify.
Cahill will preside over the trial with Attorney General Keith Ellison's office leading the prosecution with assistance from the Hennepin County Attorney's Office. Chauvin, 44, will be defended by attorney Eric Nelson.
Floyd was 46 and lived in St. Louis Park after moving to Minnesota from Houston to attend a drug rehabilitation program and rebuild his life.
Attorneys and law professors said the unusually high volume of video footage from police body cameras and the cellphone that captured Floyd's death, and the events before and after, will bode well for prosecutors, while the Hennepin County medical examiner's findings that Floyd died of cardiopulmonary arrest and had fentanyl and methamphetamine in his system could play well for the defense.
They expect lengthy testimony from use-of-force and medical experts hired by both sides, and attempts to explain Floyd's cause of death given the autopsy results and opposing theories of the case — prosecutors allege Chauvin didn't intend to kill Floyd but caused his death while inflicting felony assault by kneeling on his neck; Nelson has argued Floyd "most likely" died of a drug overdose and that Chauvin used police-sanctioned maneuvers to control him because he resisted arrest and acted "erratically."
"At the end of the day [cause of death is] what the big argument will be about," said defense attorney Andrew Gordon, deputy director for community legal services at the Legal Rights Center. "What the defense will ultimately try to do is muddy the waters about what it means for Derek Chauvin to have caused the death."
Medical examiner's report
Nelson wrote in court filings that Hennepin County Medical Examiner Dr. Andrew Baker found that Floyd had no bruising on his neck or back, that the amount of fentanyl in his body was higher than in chronic pain patients and that his lungs weighed two to three times their normal weight due to excess fluid. Floyd was also positive for COVID-19.
Floyd posed a possible safety risk to the four officers at the scene of his May 25 arrest, Nelson wrote.
"What Mr. Chauvin saw was a strong man struggling mightily with police officers, which seemed contradictory to Mr. Floyd's claims about not being able to breathe," Nelson argued.
Dramatic cellphone video recorded by bystander Darnella Frazier is expected to play a central role. The video captured Chauvin kneeling on Floyd's neck for more than nine minutes as Floyd repeatedly complained he couldn't breathe.
"I would expect that the prosecution is going to play that … tape as many times as they can manage, and it will be pretty devastating," said former Ramsey County Attorney Susan Gaertner.
Yet the video could pose its own challenges. Floyd is heard on the video repeatedly saying, "I can't breathe," which many members of the public interpreted as signs of asphyxiation and contradictory to the medical examiner's findings.
Baker ruled Floyd's death a homicide caused by "cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression." He also listed "arteriosclerotic and hypertensive heart disease" and drug use as "other significant conditions." He did not list asphyxiation as the cause, and found that there were no red spots caused by broken blood vessels in the neck, which can be signs of asphyxiation. Attorneys for Floyd's family criticized Baker's findings and commissioned an independent autopsy that ruled Floyd's cause of death as asphyxiation.
"It's the seminal issue in the case," defense attorney Joe Friedberg said of the cause of death. "If the jury cannot definitively decide that Chauvin's conduct caused the death of Floyd, the jury has to acquit him."
Past officer cases
Chauvin's case differs from the state's prior prosecutions of officers Jeronimo Yanez, Mohamed Noor and Brian Krook in several ways that could impact his defense: All of the officers at the scene were charged; there is clear video and audio of the incident; there is no weapon or perceived weapon on the victim, and Chauvin's actions lasted several minutes while horrified bystanders pleaded with him to relent.
Chauvin's three former colleagues — J. Alexander Kueng, Thomas Lane and Tou Thao — are charged with aiding and abetting murder and manslaughter and are scheduled to be tried in one trial Aug. 23. The four were arresting Floyd, who was searched before he was pinned stomach-down in the street, for allegedly using a fake $20 bill at Cup Foods in south Minneapolis. All four, who were fired, are free on bond.
When other Minnesota officers were tried, their partner or officers at the scene took the witness stand and defended their actions by testifying that they can't second-guess colleagues and that officers are allowed to deviate from commonly accepted police procedures if circumstances call for it.
Through their attorneys or in direct testimony, Yanez and Noor said they were forced to make a "split-second" decision to use deadly force because they feared for their lives and other officers' lives. It is a phrase and defense that resonates with jurors, who often give police the benefit of the doubt because of the dangers of police work, attorneys said.
Yanez, who is Mexican American, was acquitted in the 2016 fatal shooting of Philando Castile, who is Black. Noor, who is Somali American, was convicted of third-degree murder in the 2017 fatal shooting of Justine Ruszczyk Damond, a white Australian American woman. Krook was acquitted in the 2018 fatal shooting of Ben Evans; both are white.
Gordon said the video of Chauvin makes it difficult for him to argue that he made a quick and difficult call. "He has to explain the nine minutes. Maybe you get away with half a minute. Maybe you get away with a minute. But by the time you get to minute five or six or seven, that excuse goes away," Gordon said.
Yanez, Noor and Krook all testified at their trials. It's unknown whether Chauvin will do the same.