Chauvin trial is far from over — and far from won

The trial of former police officer Derek Chauvin moves like a freight train destined for a delivery of generational consequence. Each day brings additional evidence that the defendant violated department policies, training standards and elemental human decency by pressing his knee into George Floyd’s neck for over nine minutes. Those nine minutes included an extended period during which Floyd wasn’t moving or even breathing. Midway through the nine minutes, Chauvin appears in a video of the incident to lean into the victim with more weight, not less.

The current police chief, the training officer and the longest-serving lieutenant on the Minneapolis force all testified that the defendant’s actions were unnecessary or wrong. That numerous police witnesses are government witnesses addressing the defendant’s actions is not common in prosecutions of police officers. The norm is that civilian witnesses square off against police witnesses. In too many criminal cases involving officer defendants, police witnesses make no secret of their disdain for others judging their actions. Prosecutions of police officers often are two separate worlds with almost nothing overlapping in what is recounted or argued; such a gap does not exist so far in the Chauvin case.

Additionally, the jury is more diverse than many that sit in judgment of police officer defendants. The fourteen jurors (counting two white alternates) include three Black men, one Black woman and an additional two jurors self-described as multi-racial. The decisionmakers reflect the growing diversity of Minneapolis, and are arguably more diverse than Hennepin County, where the trial is taking place. Even given Minneapolis’ strained race relations, the diverse make-up of the jury should offer extra credibility to its eventual decisions. Based on the evidence thus far and the jury making the decision, one might be tempted to conclude the result of the trial is inevitable — that we now can expect a guilty verdict of some crime. That view is understandable, but it is a mistake.

The traditional strategy in prosecuting an officer for official acts is that jurors have to be cornered into guilty votes by eliminating all other options. This rationale stems from the oft-repeated defense refrain that unless you were a cop, you don’t know what happens on the street — the fear and the risks involved in being an officer. That assertion carries enough inherent force that a juror in any particular police case can doubt the readily apparent, even when presented with video evidence.

That’s how the state jurors in the initial Rodney King beating case failed to convict any of the police defendants. The acquittal of three officers and the mistrial of a fourth came despite video evidence of several defendants and other officers inflicting dozens of blows with batons as King was crawling or on the ground. It took a subsequent federal criminal civil rights trial to obtain convictions of some of the officers involved in the beating. And we shouldn’t forget the riots and destruction that occurred between the state and federal trials. The fear exists that the same might happen again now.

We haven’t heard the defense case yet in Minneapolis. Decorated current or former officers might yet testify that one can’t make harsh judgments in the rarified air of a safe courtroom. Police chiefs seldom are in sync with the patrol officers on the street. That’s why — according to countless officers — policies and procedures on the page don’t translate easily into actions during confrontations. As such, defense attorneys in police cases argue that even if conduct is wrong or ineffective in hindsight, it isn’t criminal. They have to convince only one juror to prevent a conviction.

Finally, a criminal trial is an artificial construct. It’s not meant to reflect reality; a trial is a performative and largely scripted subset of facts and arguments about an event. The judge guides the process but doesn’t take sides. The lawyers are advocates in an adversarial process, but they go home after the proceedings. A criminal trial is not well-suited to act as a referendum on larger issues such as race or to assign moral culpability based on non-legal standards of right and wrong.

So there is reason to be tentative in our collective expectation of a guilty verdict and to fear that a disappointing result will prompt a violent reaction on a national scale. Jurors swear an oath to not make any judgment until the end of the trial when they deliberate in secret. However, members of the public can and will draw conclusions from what they observe and hear of the televised trial proceedings.

Let’s hope in the end what the public sees is what the jurors believe.

Michael McAuliffe is a former federal prosecutor serving both as a civil rights prosecutor at the Department of Justice and as a supervisory assistant U.S. attorney in the Southern District of Florida. McAuliffe also served as the elected state attorney for Palm Beach County and is currently an adjunct professor at William & Mary’s Law School and a senior lecturing fellow at Duke School of Law.