POST VERDICT REFLECTIONS
The conviction of Derek Chauvin on all three counts for the death of George Floyd was a fait accompli from the moment Darnella Frazier’s cellphone video went viral on May 25, 2020. So why did we have to sit through a three-week trial, expending precious resources, and biting our nails over something that seemed so certain? Was it because the Constitution guarantees everyone facing deprivation of their liberty with due process of the law under the Fifth Amendment and the right to a fair trial under the Sixth Amendment. Or was it because Mr. Chauvin had a blind allegiance to his innocence because he was a man who wore a badge and he knew it was extremely rare for a police officer to be convicted of murder.
The statistics bear out that later hypothesis. The legal system and laws are overly deferential to the police and they get away with killing far too many civilians in the line of duty. According to the New York Times article published on April 17, 2021 (“Throughout Trial Over George Floyd’s Death, Killings by Police Mount”), “only about 1.1 percent of officers who kill civilians are charge with murder or manslaughter.”
Confirming that statistic has been historically difficult because of lax reporting requirements among the 18,000 police departments in the country. But, with the increase in deaths and awareness, private non-profits and the media have been combing the records for those numbers. Fixing the record keeping and collection of statistics is an area of reform that has been promoted in the past year with some success.
Since at least 2013, about 1,100 people have been killed each year. Since 2005, 140 law enforcement officers have been arrested on charges of murder or manslaughter. Only 44 have been convicted, usually for a lesser offense like manslaughter.
Since March 29, when the Chauvin trial began, there have been at least 64 fatal encounters with police, one of them a 40-year-old man in Claremont, N.H., who died in a shootout with the state police. Nearly all have been men, with Black and Latino people substantially overrepresented. Of those 64 fatalities, only one officer has been charged with murder so far.
With those statistics in the back of Mr. Chauvin’s head, it is no wonder he refused to settle out of court. It is commonly accepted that no more than five to ten percent of criminal cases go to trial. The remaining 90-95% of cases are dismissed or settled. I tried to do some research on how many cases of murder brought against police officers are settled out of court and was unable to get an answer because that data is not readily available.
My guess is that police officers tend to go to trial because they feel they have nothing to lose by subjecting their liberty to the whims of 12 jurors who must all agree on the issue of guilt beyond a reasonable doubt. This is reinforced by the fact that most have “qualified immunity,” so they cannot be held civilly liable.
The other problem is there are no national standards on how law enforcement officers are trained in the use-of-force. Each of the 18,000 police departments have their own policies and practices, some stricter than others. All of this was highlighted during the Chauvin trial where several different experts testified on the use-of-force.
One of the most frequently shown exhibits was a slide from a power point presentation used in training Minneapolis police officers on the use-of-force. It was Exhibit 110 and commonly called the “Use-of-Force Continuum.” All levels of force by the police depended upon the level of resistance displayed by the subject ranging from no resistance, passive resistance, active resistance on up to active aggression. The types of force allowable by police range from the mere presence of an officer all the way up to deadly force.
Obviously all the experts testifying for the state declared that Mr. Chauvin’s knee on Mr. Floyd’s neck was unauthorized “deadly force.” I think nearly everyone in this country also believes that to be the case. But Mr. Chauvin’s attorney had to find someone who would testify that Mr. Chauvin’s conduct was a “reasonable use-of-force.”
That person was Barry Brodd, a retired police officer who is now a consultant on police practices and use-of-force. One of his claims to fame is that he was hired as the defense expert in the prosecution of Jason Van Dyke, a Chicago police officer who shot and killed 17-year-old Laquan McDonald, in 2014. Van Dyke was convicted of murder in 2018, despite Mr. Brodd stating that Van Dyke’s use of force was justified. Of course, the jury in Chauvin’s trial was not informed of this.
Some of Mr. Brodd’s testimony sounded like “old school” techniques and procedures. He talked about “one upmanship,” stating “police officers don’t have to fight fair, they can go up a level to obtain compliance.” He stated that the “prone position” was not a use-of-force because it is safer for the officer and the subject and it does not cause pain. Really! He explained that a person who may be under the influence of drugs is more of a threat because of erratic behavior, the possibility of superhuman strength, and may go from compliant to extreme noncompliance in a heartbeat. In his opinion, this justified a greater and more sustained use of force against Mr. Floyd. At one point during his testimony he stated Mr. Floyd was “resting comfortably on the pavement.” He clearly saw the case through rose-colored lenses by suggesting a dead man was resting comfortably.
Obviously the defense expert did not succeed in sowing doubt in the minds of the jurors, but just the fact that some people in the law enforcement community still feel this way should raise red flags all over the place.
The constant reference by defense counsel to Mr. Floyd’s drug use was also employing stereotypes in a racially charged manner. When a Black man is suffering from opioid addiction, they are immediately thought of as a criminal. When a White person is suffering from an opioid addiction, they are thought of as needing treatment and help. When you think of this in the context of television shows with characters suffering from a drug addiction, how many Black people are thought of as sympathetic characters. Not many. But the White person, like “Nurse Jackie” or “House,” are put on a pedestal and dramatized in a positive light. This is an attitude that needs to be changed, especially in the law enforcement community.
The fact that the jury only needed about ten hours to reach its decision speaks volumes. Now let’s hope the judge considers aggravating factors, such as exposing the killing of George Floyd to a nine-year-old girl, and sentences him appropriately. What should the sentence be for a “small-hearted” man for the killing of a “large-hearted” man who was loved by his family and friends and has become the symbol for the long overdue reconfiguration of the police system in America. Let this moment of justice lead to everlasting peace.