Opinion : The White Man Goes on Trial

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Will he get a fair shake? Impossible.

On Monday, Derek Chauvin’s trial will begin. He is, of course, the Minneapolis policeman who held George Floyd down with his knee.

Every moment of the trial will be televised, which is a first for Minnesota.

I don’t think Mr. Chauvin can get a fair trial. The media already found him guilty, and the country erupted in violence. All the jurors know that if they vote to acquit, there will be more rioting. Probably worse than before.

The US system is set up to avoid convicting innocent people. The prosecution has to prove its case beyond a reasonable doubt, and the jury has to be unanimous. If even one juror out of the 14 has a reasonable doubt, it’s a hung jury, and the case would be retried. But is there anyone in the entire state of Minnesota who could hold out against the tremendous pressure to convict?

It looks as though there will be nine white jurors, four black, and one mixed-race. Their identities are being kept secret precisely because anyone who votes the wrong way will be – at least for a while – the most hated person in America. That is why during jury selection, which was also televised, the camera never showed jurors. That is why they will enter the courthouse through an obscure passage with no public access. But what are the chances of the jurors’ names staying secret during a month-long trial? I bet the doxers are already hard at work. So, I would say that for fear of starting more riots, and for fear of reprisals, the chance of even a single holdout for an acquittal is zero, no matter what the evidence shows.

The trial isn’t a fair fight, either. The state’s number-one prosecutor, Matthew Frank, is leading the team against Derek Chauvin, and Minnesota’s Attorney General, Keith Ellison, has promised all the money and people it will take to get a conviction. The prosecution also has the help of high-profile private-sector lawyers, including Neal Katyal, a former Acting Solicitor General. More hot-shot lawyers will be helping out pro bono.

Mr. Chauvin is represented by Eric Nelson. He is one of a dozen Minnesota lawyers who take turns representing police officers – and it was his turn.

He is a specialist in drunk driving cases. He will get some help behind the scenes, but he will be in the courtroom alone.

And the judge? Peter Cahill was appointed to the bench in 2007. Before that, he spent 10 years as a – prosecutor.

Derek Chauvin faces three charges. If he is convicted of more than one, he will be sentenced only for the most serious. Not one of the charges requires that the jury find that he intended to kill Floyd. The most serious is second-degree unintentional murder. It is used when a defendant unintentionally kills someone while committing a separate felony. That’s two different acts. For example, if you are robbing a bank and accidentally knock someone over and he dies, that could be second-degree unintentional murder. But Minnesota is one of very few places that doesn’t require two separate actions. The prosecution says that the felony is the assault on Floyd – the same act that is supposed to have killed him. A lot of people think a charge like that is illegitimate and that a conviction could be overturned on appeal. Maximum sentence, 40 years, but the sentencing guidelines for a first offence call for 12-1/2 years.

The next most serious charge is third-degree murder, which is, in the language of the law, “perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” This would typically be a drug dealer who knowingly sells poisonous drugs or someone who fires wildly into a crowd. That’s a whole lot more “depraved” than anything Derek Chauvin did, but the prosecutors seem to think they could get the jury to compromise on this — third-degree murder — if they won’t convict on second-degree murder. Maximum sentence: 25 years, but guidelines again call for 12-1/2.

The third charge is second-degree manslaughter. Mr. Chauvin would have to be “culpably negligent” and have taken “unreasonable risks” with Floyd. The maximum sentence is 10 years, but the guidelines call for four years, nine months. My guess is if Mr. Chauvin gets less than five years there will be riots.

Could the jurors defy the lynch mob and vote to acquit? There are reasons to. Floyd had a lethal dose of fentanyl in his body along with meth and cannabis, and was positive for Covid. He had heart disease, high blood pressure, and sickle-cell disease. His lungs were so full of liquid, they weighed two to three times their normal weight. That is why he said he couldn’t breathe many times before Mr. Chauvin put a knee on his neck. The defense will probably argue that when police showed up Floyd swallowed drugs to hide them – just as he did during a 2019 arrest. And here is a record of a conversation with County Medical Examiner Andrew Baker. “AB said that if Mr. Floyd had been found dead in his home (or anywhere else) and there were no other contributing factors he would conclude that it was an overdose death.” The media have been very quiet about this.

 

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