How effective was Derek Chauvin’s defense?

Derek Chauvin’s defense attorney Eric Nelson on April 15. | Court TV via AP

The former officer’s lawyer tried to introduce doubt by suggesting that Chauvin’s knee was not the cause of George Floyd’s death.

On Thursday, the trial of former Minneapolis police officer Derek Chauvin, charged with murdering George Floyd, adjourned for the week. Jurors will hear closing arguments and begin deliberating on Monday.

For more than two weeks, the prosecution, a team of four lawyers, presented 38 witnesses to show that Floyd died as a result of Chauvin’s knee. They put on the stand bystanders who cried recalling the moment they saw Floyd die under Chauvin’s restraint. They brought in 10 local officers, including the Minneapolis police chief, who said the use of force was unreasonable and against protocol. Medical experts testified that a lack of oxygen due to Chauvin’s knee caused Floyd’s heart to stop. In sum, the prosecution brought out witness after witness who supported that Chauvin’s knee was a significant contributing factor in Floyd’s death.

Then this week, Chauvin’s defense team — one man, Eric J. Nelson — set out to sow doubt in the jurors’ minds, an endeavor that may have been difficult but certainly was not impossible.

During his opening statement and witness cross-examination, Nelson laid the groundwork for his three key arguments. Chief among them is that Floyd’s drug use and health issues caused his death — not Chauvin’s actions.

“The evidence will show that Mr. Floyd died of a cardiac arrhythmia that occurred as a result of hypertension, his coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body, all of which acted to further compromise an already compromised heart,” Nelson said in his opening statement.

Next, Nelson argued that the growing crowd of bystanders that stood to watch presented a threat to the officers. “The crowd began to grow angry. [The officers are] called names,” Nelson told jurors. “They’re screaming at them, causing the officers to divert their attention from the care of Mr. Floyd.”

Lastly, Chauvin’s use of force was justified, according to Nelson, because Floyd resisted, and hence needed to be restrained so he wouldn’t further threaten anyone’s safety. Nelson told the courtroom, “You will see that three Minneapolis police officers could not overcome the strength of Mr. Floyd. Mr. Chauvin stands at 5-9, 140 pounds. Mr. Floyd is 6-3, weighs 223 pounds.”

Court TV via AP

Defense attorney Eric Nelson, left, discusses motions before the court as former Minneapolis police officer Derek Chauvin, right, looks on.

The defense rested its case on Thursday morning after having called just seven witnesses — those who testified that Floyd had a history of drug use and others who testified that Chauvin’s use of force was justified.

The brief presentation from the defense might appear to be a slim case, but it’s the prosecution that bears the burden of proving beyond a reasonable doubt that Chauvin’s actions substantially contributed to Floyd’s death.

“The prosecution has to dot every i and cross every t, while the defense just has to create doubt. All they need to come up with is one story that sounds plausible and that undercuts the prosecution’s case,” Chris Slobogin, the Milton R. Underwood Chair in Law and director of the Criminal Justice Program at Vanderbilt University, told Vox.

And Nelson’s efficacy can only be measured when the jury returns its verdict. But Nelson’s strategy, coupled with the rarity of these cases and how hard it is to prosecute police officers, has left experts somewhat on the fence on how this will end.

“In a case like this, you have to think, ‘Who are the jurors and are they going to buy it?’” Michelle Engert, a defense attorney and a law professor at American University, told Vox. “While the case is being shown to the country, it’s really 14 jurors that decide.”

Slobogin agreed. “It’s hard to make conclusory statements now because it’s always hard to predict what a jury will do. And in cases like this, it’s very difficult to convict police officers, even for actions that seem egregious,” Slobogin said.

The defense’s arguments and witnesses, explained

Chauvin faces three charges: second-degree unintentional murder (meaning he caused Floyd’s death while committing assault); second-degree manslaughter (meaning he caused Floyd’s death due to negligence that creates an unreasonable risk); and third-degree murder (meaning he acted in a way that was reckless at the risk of causing death).

To make the case that Chauvin is not guilty on any of these charges, Nelson introduced a handful of witnesses on Tuesday who he believed could help him make the argument that Floyd died of preexisting health conditions and drugs, not because of Chauvin’s knee to his neck. These witnesses included Michelle Moseng, a now-retired paramedic who once assisted Floyd in 2019 when he was detained by a police officer. Moseng testified that Floyd’s blood pressure was very high, expressing concern that he was at risk of a stroke. Floyd told her that “he had a history of hypertension and hadn’t been taking his medication,” Moseng said.

Nelson also called to the stand Shawanda Hill, an acquaintance of Floyd’s who ran into him at the Cup Foods. Hill was going to get a ride home with Floyd until the police knocked on the window of the Mercedes SUV and then the fatal encounter ensued. Hill testified that Floyd had been asleep in the car and she had difficulty waking him up. Though Hill said that Floyd told her “he was tired because he had been working,” Nelson attempted to use Floyd’s slumber as evidence of a drug overdose.

Court TV via AP

Shawanda Hill testifies on April 13.

To further the argument, on Wednesday, Nelson presented former Maryland chief medical examiner David Fowler, who did not perform Floyd’s autopsy but testified that Floyd died of a cardiac arrhythmia due to his heart disease. Fowler also added that Floyd’s fentanyl and methamphetamine use played a significant role in his death in addition to carbon monoxide that he was exposed to from the squad car and Floyd’s paraganglioma, a tumor that caused adrenaline to course through his body. Fowler said it was the combination of those elements that caused Floyd’s death and not a lack of oxygen or asphyxia as the prosecution outlined.

The prosecution anticipated these kinds of arguments from the defense and presented a series of medical experts, including pulmonary and critical care physician Martin Tobin, who testified that Chauvin’s actions led to asphyxia, a lack of oxygen, which caused Floyd’s heart to stop. Meanwhile, Hennepin County chief medical examiner Andrew Baker listed homicide as Floyd’s cause of death on his death certificate and said Chauvin’s actions created extra adrenaline in Floyd’s blood that forced his enlarged heart to beat faster and eventually stop. In response to Fowler’s carbon monoxide argument, Jerry Blackwell, an attorney for the prosecution, got Fowler to admit that he never reviewed emissions reports for the vehicle and couldn’t say definitively that he knew whether the vehicle was running.

Ultimately, the defense’s effort to contend that Chauvin’s knee had nothing to do with Floyd’s death might not be their strongest argument. “What the law says on causation is even if Chauvin only contributed to the death, he can be a legal cause. If the drugs were a significant cause and Chauvin was also a significant cause, then Nelson loses the causation argument,” said Slobogin. “Obviously, there are multiple causes with almost anything, and as long as Chauvin was a significant cause the defense is going to lose on causation.”

Still, causation has to be proved by the prosecution beyond a reasonable doubt. “All the defense has to do is suggest a doubt as to the causation issue and it’s over, Chauvin’s acquitted. Because maybe the jury will believe it was all drugs or it was all drugs plus Floyd’s heart conditions,” Slobogin said.

Nelson’s next argument concerned mens rea, or Chauvin’s mental state, and whether he was aware that his actions would cause Floyd’s death. This is where Nelson argued that Floyd was so distracted by the crowd of bystanders that he was unable to pay attention to the effect of his knee on Floyd. Nelson called Minneapolis Park police officer Peter Chang to testify because Chang was called to the scene on May 25 to assist. Chang testified that bystanders were at every corner and that the crowd was “very aggressive” toward officers. Chang’s body camera footage shows he was across the street at the time of the fatal encounter, watching Floyd’s SUV and keeping an eye on Hill and Morries Hall, another passenger in Floyd’s vehicle that day.

“This is the defense’s weakest argument,” said Slobogin. “Chauvin had to be aware that there was at least some risk that Floyd would die.”

Lastly, and perhaps the defense’s strongest argument, is the defense that the risk was justified. In other words, Chauvin had to take the risk that he might kill Floyd because Floyd was resisting and hence posed a threat to officers and the public that needed to be restrained. In other words, Nelson is arguing that Chauvin was simply doing his job as a police officer and doing exactly what he was trained to do to keep his colleagues and the public safe.

“This is the defense’s strongest argument — though it’s a weak one — because they can argue that Chauvin’s force was reasonable, that this is what he’s trained to do. They can say that it wasn’t disproportionate since Floyd was resisting,” Slobogin said.

Nelson called two witnesses this week to make this point. The first was Scott Creighton, a retired Minneapolis narcotics division police officer, who testified about the May 2019 traffic stop in which he pointed his gun at Floyd. “The passenger was unresponsive and noncompliant to my commands. I then had to physically reach in and I wanted to see his hands,” Creighton said after Nelson played body camera footage of the traffic stop to the court. “In my mind, his behavior was very nervous, anxious.” Use of force expert and retired police officer Barry Brodd testified that Chauvin was justified, acted with “objective reasonableness,” and followed Minneapolis Police Department policy.

Court TV via AP

Barry Brodd, a use of force expert, testifies on April 13.

“The defense’s case suggests that Floyd was so high that he couldn’t be controlled and so big that he couldn’t be controlled,” said Engert. “And what they’re trying to suggest without doing it is Floyd is so dark that he couldn’t be controlled, words that they would’ve used 50 years ago.”

According to Engert, taken individually, the defense’s arguments aren’t strong, but they are maybe stronger together. “I wonder if these arguments will work. Because when you show that video, I just don’t see how a jury can acquit,” Engert told Vox.

It all comes down to the jury

On Thursday, Chauvin exercised his Fifth Amendment right not to testify in his defense. It was the first time the former officer spoke in court in nearly three weeks. Judge Peter Cahill assured Chauvin that he would instruct the jury not to hold Chauvin’s decision to not testify against him.

If the former officer — whose case is being backed by the Minneapolis Police and Paces Officers Association’s legal defense fund, a large organization of police union members across the state — had testified, he would have risked bringing his past record, which includes 18 conduct complaints in 19 years, into the trial’s purview.

“If a criminal defendant is being tried and their criminal history is a mile long, prosecution can’t introduce that unless and until the defendant takes the stand,” Slobogin said. “If Chauvin takes the stand, such a history would become admissible, and that could be a dicey proposition.”

Chauvin’s announcement came after a fourth night of unrest in the Minneapolis region in response to the fatal police shooting of 20-year-old Daunte Wright during a traffic stop just a few miles away from the courtroom. Though Cahill has repeatedly advised jurors to not watch the news, attention on the trial and its impending outcome has only increased as a result of the recent killing.

And while Nelson’s role might seem like an uphill battle, given the breadth and depth of the prosecution’s case, data shows that it is difficult to convict the few police officers who actually get charged and tried for crimes.

“If there wasn’t video, we wouldn’t be here and there would be no prosecution,” Engert told Vox. But she also pointed to the 2014 police killing of Eric Garner as an example of why video sometimes doesn’t matter — in that case, there wasn’t even enough for an indictment.

One key distinction, though, is the prosecution’s effort in this case. “Here the prosecutors are using every tool and that makes me hopeful,” said Engert. “In Garner’s case, there was a sort of ‘blue wall’ where the prosecutors didn’t even want an indictment and used every tool to keep the officer who killed Garner out of the justice system. This is what’s changed in seven years.”

Slobogin agreed. “Sometimes prosecutors may not pour as much energy into a case because, after all, they depend on the police to bring them cases and to be their investigators,” Slobogin said. “I do not think that’s true in this case.”

Slobogin pointed to another factor that seems more relevant for Chauvin’s trial: “The jury is composed of citizens of the community who want the police to protect them.” The prosecution could “have a very hard time convicting a person whom they see as a guardian, as someone who is responsible for protecting their lives and their property,” he said.