Murder trial of ex-police officer could hinge on cause of George Floyd's death, legal experts say

The video showing a former Minneapolis police officer pressing his knee to the neck of George Floyd could be a damning piece of evidence in the murder trial, but defence lawyers have options to defend their client, legal experts say.

Derek Chauvin has been charged with unintentional second-degree murder in Floyd's death

George Floyd's brother Philonise Floyd, far right, and cousin Shareeduh Tate, second from right, share their memories of Floyd at a memorial service Thursday in Minneapolis. (Bebeto Matthews/Associated Press)

The video showing a former Minneapolis police officer pressing his knee to the neck of George Floyd could be a damning piece of evidence in the murder trial, but defence lawyers have options to defend their client, legal experts say.

Mike Hatch, who was attorney general for Minnesota from 1999 to 2007, believes that the video evidence, showing Derek Chauvin pressing his knee on Floyd's neck for nearly nine minutes, may be all the prosecution needs to seal the former police officer's legal fate.

"I think all you have to do is show the tape and that pretty much does it," said Mike Hatch, who was attorney general for Minnesota from 1999 to 2007.

Keith Ellison, the state's current attorney general, cautioned that the case won't necessarily be so simple for the prosecution and that it's very difficult to convict police officers. In an interview with CNN, he said jurors generally tend to resolve doubts in favour of the police where there's a credibility dispute.

Rose Briscoe, a criminal defence lawyer who practises in three states, including Minnesota, said in this particular case, she doesn't believe Chauvin can use the defence often employed by police, that force or deadly force was used because they reasonably thought their life was in jeopardy.

"Mr. Floyd was on the ground with his hands behind his back and he had the weight of not just one officer, but more than one officer on him."

Still, the case against Chauvin could hinge on causation and the role any pre-existing medical condition may have played in Floyd's death, some legal analysts suggested.

This photo provided by the Ramsey County sheriff's office shows former Minneapolis police officer Derek Chauvin, who was arrested on May 29, 2020, in the death of George Floyd. (Courtesy of Ramsey County Sheriff's Office via AP)

"So if [the jury] believe that the underlying medical conditions is what ultimately led to his death, he's going to get acquitted of the second degree," said Christa Groshek, a criminal defence lawyer in Minneapolis.

Chauvin, whose caught-on-video treatment of the handcuffed Floyd spurred worldwide protests, has been charged with unintentional second-degree murder. His charges were recently upgraded from third-degree murder. 

Meanwhile, the three other officers on the scene on May 25 have been charged with aiding and abetting a murder. All four officers were fired from the force last week.

A second-degree murder conviction in Minnesota carries a maximum sentence of 40 years. The charges of aiding and abetting a second-degree murder carry the same potential sentence. 

'Evidence is very damning'

"I would not want to be a defence attorney in this case," said Briscoe. "I absolutely would not. The evidence is very damning for the defence."

For prosecutors to secure a conviction against Chauvin, they must prove that he caused the death of Floyd while committing or attempting to commit a felony, Briscoe said. However, they don't have to prove he intended to kill him.

"The argument could be made that an assault was being committed and then that led to his death," Briscoe said.

Chauvin had initially been charged with third-degree murder, but those charges were later upgraded to second-degree.

While it may be counter-intuitive, at least in this particular case, securing a second-degree murder conviction could be easier than a third degree-conviction, legal experts said, as the latter charge must show that the defendant had a "depraved mind."

'I can't breathe'

"What that means is is that it's an act so reckless and dangerous that a person dies while you were committing that reckless or dangerous act. And in this case, a jury would have needed to decide if Chauvin had a depraved mind. I can see where that would create some problems for the prosecution the way that it was originally charged," Briscoe said.

The video shows Chauvin pressing his knee on Floyd's neck for nearly nine minutes while Floyd's cries "I can't breathe"  until he eventually stopped moving.

Former Minneapolis police officers Tou Thao, left, Thomas Lane and J. Alexander Kueng have been charged with aiding and abetting murder in the death of George Floyd. (Hennepin County Sheriff's Department)

Groshek said for prosecution's case, it's not just that they have a digital recording of the actions leading up to Floyd's death, but a lengthy portion of it.

"It's not like a cherry-picked snippet. It really captured and captured well, from a good vantage point, what was happening."

However, the defence does have options available to it and could zero on what ultimately caused the death of Floyd, some legal analysts say. 

The video may not be the slam dunk that some suggest, said Ronald Sullivan, director at the Criminal Justice Institute of Harvard University. The defence could argue that one needs to take into consideration the entire context of the event and that you couldn't see what was going on before the video.

They could say "he was thrashing around in such a way and violent and resisting and so forth that we couldn't keep him still and he was a danger to himself and others," said Sullivan, who also represented the family Michael Brown, a black teen killed by a police officer, in reaching a settlement with the city of Ferguson, Mo., on a wrongful death claim.

'Under control'

But Sullivan said the defence could have a difficult time getting around the fact that, according to court documents, Chauvin continued to have his knee on Floyd's neck for nearly three minutes while he was unresponsive.

"At some point, this man was under control. And then at some point without a pulse, [Chauvin] made a conscious decision to keep his knee on his neck for nearly three minutes," Sullivan said.

"And I would just stand silent in the courtroom for three minutes, which is an eternity if you're in court."

The official autopsy by the county medical examiner concluded that Floyd's death was caused by cardiac arrest as police restrained him and compressed his neck. The medical examiner also listed fentanyl intoxication and recent methamphetamine use, but not as causes of death.

2 autopsy reports

The autopsy report was released Wednesday. It also showed Floyd tested positive for 2019-nCoV, the coronavirus which causes COVID-19. 

Crump and the Floyd family commissioned a separate autopsy that concluded he died of asphyxiation because of neck and back compression caused by Chauvin's knee on his neck and other responding officers' knees in his back, which made it impossible for him to breathe.

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But lawyers for the defence could question the role Chauvin's knee on Floyd's neck had on his death, Hatch said.

"What the defence would argue is that he said he couldn't breathe before he even got to the squad car, before he was brought down. Basically did the chokehold have anything to do with the death?"

Other doubts could be raised

The defence could potentially find other coroners and medical examiners to further raise doubts about whether Chauvin caused Floyd's death, Groshek said.

The defence could also make use of a clip by Hennepin County Attorney Mike Freeman, who was initially in charge of the case, Hatch said. In a news conference before charges were laid, Freeman said it was his job to prove that Chauvin violated criminal statute "and there is other evidence that doesn't support a criminal charge."

"I guarantee you that clip will be shown often because that's the issue in a criminal case — is there reasonable doubt if the county attorney is indicating that there is some indication that there was not any criminal behaviour there?"

Still, Hatch believes the video makes it "a very strong case as it relates to Chauvin."

Also, the pre-existing condition defence could be difficult to prove as it comes up against the "but for" legal argument, Briscoe said. 

She said someone could make the argument that Floyd could be walking down the street with those same pre-existing conditions and would still be alive to this to this day "but for the conduct of those defendants, which is what caused him to lose his life."

'Treasure trove of arguments'

Overall, for the prosecution to win, Sullivan believes they will have to focus the jury on a finite period of time and argue that at some point, Chauvin should have taken his knee off Floyd's neck and applied medical aid to someone who was clearly not functioning anymore. 

"I think they've got a treasure trove of arguments there," he said.

For the defence, Sullivan said they need to convince the jury that in the context of an escalating set of facts with a man who was on serious drugs, which made him unpredictable, the officer behaved "consistent with his training and certainly clearly didn't intend to kill."

As well, the defence will have to say that as a police officer, Chauvin had a form of immunity to commit what the prosecution has deemed as an assault, Sullivan said.

He said often in these cases involving police officers, the defence asks the jury to put themselves in the shoes of officers, to think about how difficult the job is and whether they could make these split-second decisions on the spot. 

Sullivan said that a good prosecutor, however, would say that that's an unfair argument because they are not trained to be a police office.

"But this guy is trained to be a police officer, and he failed miserably."


Mark Gollom

Senior Reporter

Mark Gollom is a Toronto-based reporter with CBC News. He covers Canadian and U.S. politics and current affairs.

With files from The Associated Press