On this episode of democracy-ish, Danielle and Toure are joined by Elie Mystal, one of the finest legal minds in the country and justice correspondent for The Nation, to discuss the trial of former Minneapolis police officer Derek Chauvin for the murder of George Floyd.
As Derek Chauvin’s trial ends its second week, former Minneapolis PD officer Chauvin looks guilty as hell –– but will he still walk away a free man?
Legal expert Elie Mystal says it’s a distinct possibility. From the jury selection to decisions made by the judge about admissible evidence and the theatrical nature of the trial itself, the odds are stacked in Chauvin’s favor.
And although there’s still hope for justice for George Floyd, Elie argues that the justice system doesn’t have to function this way. He joins Danielle and Toure to break down the trial so far and what it tells us about America.
As we look toward week three of the trial, Toure is still optimistic about the likelihood of Chauvin’s conviction, Danielle is as skeptical as ever.
“We're looking at this from an emotional lens. And what the jury will be instructed to do is look at it from a technical lens,” she says.
The defense’s case, however flimsy, seems to hinge on the drugs in George Floyd's system and whether or not that could have contributed to his death, as well as the position of Chauvin’s knee (Was it really on his neck? Or was it on his shoulder blade?).
“They are working to confuse the jury” about technicalities, Danielle says.
But in the past week, we've seen several police officers from Chauvin’s own department, including the chief of police, testify not just that he was wrong, but that he acted against the department’s own policies.
“We never see police officers testifying against a [fellow] officer,” says Toure.
Guest Elie Mystal, a Harvard Law-trained litigator turned journalist and commentator, agrees that it’s unusual. But he’s decidedly circumspect about the likelihood of justice for George Floyd.
“There's always the presumption that the cop's gonna take a walk,” he says. “That's just the society we live in.”
As Danielle wrote last week, she thinks “this trial is not just about Derek Chauvin. This trial is about America. … about police being able to do whatever the fuck they want, whenever they want, and having no accountability or responsibility because of the shield that they wear.”
Episode Highlights –– Is Derek Chauvin Goin’ Down?
‘Looks like murder to me’
“I know you've been watching the trial, getting re-traumatized, like most Black people,” Toure tells Elie. “Can you give us a score at this point? Do you think we're headed toward a conviction or an acquittal?”
It’s difficult to say, since we’ve only seen the prosecution’s case so far.
“But the prosecution has done everything right,” says Elie. “There have been no screw-ups. There’ve been no surprises. It's straightforward –– like, look at this video. That looks like murder to me. And here are all these other people, including, as you point out, people from his own police department who say, looks like it’s murder to them.”
Meanwhile, the defense “is doing exactly what you’d expect the defense to do,” Elie adds. “Chauvin should go to prison. It doesn't mean he will. There have been lots of cops who should go to prison who don't.”
But it is different to see other police officers and the chief himself come out against one of their own. “That's problematic for Derek Chauvin,” says Toure. “That's hard to defend. You would think that would mean a lot to jurors.”
Jury selection is a game of ‘find a racist’
Elie has a theory about why cops go free in the first place.
“This is an inveterate racist country, and if you roll the dice with 12 people off the street, you're gonna find one racist.”
Not only that, the “defense is trained to find one racist. It only takes one racist to hang that jury,” he explains.
“But the other theory, the more acceptable legal-strategy theory, is that cops get off because people trust and are inclined to believe the cops. So if that theory is true in this situation … with not just the chief but multiple cops speaking out and testifying against Chauvin … are they going to love the ones telling them this guy was wrong?”
If that theory is correct, the testimony of those officers “should be enough,” he says.
And yet… it may not be.
Toure started to worry a bit when Chauvin’s defense talked about the concept of awful but legal, meaning that law enforcement officers sometimes do things that seem awful, but are technically legal.
“I was like, ooh, that whole notion is something that a juror, racist or not, could hang their hat on and [use to] justify what cops do to restrain somebody,” he says.
Graham v. Connor: the case that underpins cops’ ‘use of force’ defense
Toure wonders if Elie sees anything the defense is doing that we should be concerned about.
First, Elie says he “would push back on racist or not, because there are lots of awful things done to white people that always end up in conviction. The whole concept of awful but legal is something that exclusively works against Black people.”
In fact, it really just means “you can treat Black people awfully but legally,” he adds. “That concept doesn't work if you put a white woman's face on the victim.”
But this argument goes right to the “fundamental legal justification for murder,” Elie notes. The defense has been citing Graham v. Connor, a Supreme Court decision from 1989 that “completely changed the use of force structure for police officers.”
Prior to that case, the law relied on the reasonable man standard, which said “an officer couldn't brutalize you beyond what a reasonable citizen would expect,” he explains. “Graham v. Connor changed that standard to a reasonable police officer.”
How stereotypes become law
That phrase “does a lot of work,” Elie says. “Now, if I'm a cop, I don't have to prove that you or I would have killed the guy like this. I have to just say that any other cop in my situation would have killed the guy like this.”
And that's why the defense is pushing “awful but legal” –– the judge will instruct the jury about this aspect of the law, telling them that, if they believe Chauvin acted “reasonably, as another cop would have in that situation, you must acquit,” says Elie.
“That's what they're going for: The concept that other cops would choke the life out of this Black man … because Black men have super strength.”
Elie points out that a jiu jitsu expert was cross-examined about whether Black people under duress can develop super strength –– what the defense called excited delirium.
“At one point, they literally asked the guy, is it possible for a person who is unconscious to regain consciousness and wake up with super strength? And the jiu jitsu guy was like ... I guess?”
This kind of thinking leads to “stereotypes that create policy and then create law,” says Danielle. “That's how we get entrapped as Black people.”
Victim-blaming: standard courtroom procedure if you’re Black
Elie notes that the defense asked the medical examiner whether it would have been hard to give Floyd medical attention because he was too big to move when he was unconscious –– essentially, suggesting he was “too fat and Black to be turned over on his back to receive CPR.”
That, to Danielle, embodies “the pure fuckery of our justice system, to use a legal term.”
It reminds her of the Trayvon Martin case –– when, “instead of George Zimmerman being on trial, Trayvon's character, and his fucking Instagram and his Twitter and his Facebook were on trial.”
Likewise, we’re not just talking about George Floyd's drug use (and his girlfriend's drug use) –– the defense wanted Floyd’s drug dealer to be unveiled in court, “as if the dealer should be subject to trial for third-degree murder because they gave him drugs,” says Danielle.
“Why the fuck do we allow things like that to continue? We allow that to be admissible, but Derek Chauvin's pattern of behavior is not?”
Elie’s answer is pretty straightforward: “Yeah, because the judge is white.”
As he points out, Judge Cahill could have excluded all that testimony.
“He has a lot of power in that courtroom,” Elie says. “Most legal commentators would say these are pretty standard actions: Let the defense tar the victim, who's not in the courtroom, but don't let the prosecution bring in what are called prior bad acts of the accused. Unless, of course, the accused is Black.”
Patterns of behavior: irrelevant if you’re white?
Toure thinks this aspect of our so-called justice system “doesn't make any sense. George Floyd's past is not exculpatory to why Derek Chauvin did or did not murder him.”
We don’t know for sure whether Chauvin knew about Floyd's criminal record, but either way, it wouldn’t mean he was free to murder him. However, any prior violence on behalf of Chauvin is about as relevant as it gets… right?
In other words, as Danielle asks Elie, “is there any objective, reasonable reason why we would not admit a white police officer's pattern of conduct on the job, versus a Black man's drug use?”
Not exactly, he says.
“The benign and arguably decent reason we generally exclude prior bad acts is because it has been determined to have an outsized effect on the jury about whether or not the person committed the crime in front of them,” he explains.
It should be a standard applied to every defendant, with good reason. Elie gives an example: “If you're accusing me of robbing a bank, the fact that I stole a pack of baseball cards when I was 15 –– which I didn't, by the way –– shouldn't really have a lot to do with whether or not I robbed a bank.”
Defense onFloyd: ‘too high to live’
Danielle thinks it sounds like asking a woman what she was wearing on the night that she was raped, which we no longer allow to be admissible in court.
“What she was wearing does not dictate the fucking behavior of the person who attacked her. And so for me, in the same vein … why was there not a fight by the prosecution to say no –– you would not have known from that meeting at the convenience store whether or not George Floyd was on drugs?”
He wasn't armed and he was posing no threat, she adds, so why was that admissible?
Elie explains the difference: “There are prior bad acts of the defendant, which I can argue should not be admissible –– even though if you're a Black defendant, they usually find a way. Danielle, what you're talking about is prior bad acts of the victim, which I would argue should never be admissible.”
However, in this case Chauvin’s attorneys were able to convince the judge to admit Floyd’s drug use “because their theory of the case is that Chauvin didn't kill George Floyd. Drug use killed George Floyd. They’re arguing that he was too high to live.”
It was a “judgement call” on behalf of Judge Cahill –– one that Elie disagrees with, but here we are.
Hearts, minds and a ‘shadow war’
Many of the decisions we see in this Minneapolis courtroom –– from the judge and both sets of attorneys, are largely for show.
There’s a theatrical aspect to almost every trial, “but when you have a high profile one like this, part of the show isn't even for the jury. It's for the media and people like us watching,” says Elie.
“But if the jury is sequestered, why are they making a show for the media?” asks Toure.
“Because they're trying to win in the court of public opinion as well,” Elie replies. “While the jury is sequestered, you know who ain't? The judge.”
And as we’ve seen with the drug testimony, a judge has “so much discretion,” he adds. “So if you can generate public media pressure … You can have influence on the judge, who decides what gets in or out of the courtroom.”
He describes it as “a shadow war going for the heart and mind of the judge,” almost separate from winning the hearts and minds of the jurors” –– which, Elie argues, “likely were already baked in when they were seated.”
A discarded plea deal: not what it seems
Elie doesn’t want to overlook the fact that “this is all terrible and unnecessary,” he says. “We don't have to have a system like this. We didn't have to have a trial here. This man was caught on tape murdering somebody.”
The vast majority of people who are clearly guilty of murder take plea deals, he points out.
“The only reason why Chauvin decided to take this to trial is because he is so confident that his whiteness and his cockiness will get him off.”
But wasn’t there a negotiation in which Chauvin's team offered to plea down to a lesser charge with a 10-year sentence?
To Toure, the fact they didn’t accept it suggests the prosecution wanted this trial and is confident they can convict Chauvin of murder two, which carries a life sentence.
“The prosecution didn't want this trial,” says Elie. “Initially, he was just charged with murder two. But after the jury was set, the prosecution goes, maybe we need to re-enter the murder three charge just in case.”
The reason the DA didn’t accept the defense’s initial plea offer “has everything to do with political public perception at the time … not really a strategic decision about what was most likely to happen.”
#Throwback: shades of Judge Ito
Danielle asks Elie whether he thinks Judge Cahill understands the gravity of this case –– particularly the “mayhem” that would ensue if Chauvin escapes conviction entirely.
“Pandora's box is already open. America is a powder keg. Do you think that’s being taken into consideration?”
Elie does not.
“The judge is in straight CYA mode,” he says. “He doesn't want to look bad. There's a Lance Ito-during-O.J. vibe I'm getting from him … He's trying to not get blamed one way or the other.”
That goes for everyone in the courtroom: “It's almost like you can see the marionette strings. Everybody is just trying to play their role, do their part, and hope that they are not the ones responsible for riots, violence, whatever happens. And they want to have careers after the Derek Chauvin trial.”
Jurors: Are they merely ignorant or biased toward cops?
Toure finds the notion of the “court of public opinion” quite uncomfortable.
“It has gone against black people many times throughout history. We should decide based on the evidence, even if it leads to the country being very upset,” he says.
“Who, Toure, is the we?” Elie asks. “If you were telling me that we, a representative cross-section of America, got to decide based on the evidence presented at trial and only that evidence, I could live in that world. But this is not a jury that’s a representative cross-section of America. It’s a jury that's been hand-selected for ignorance.”
But isn't it normal for members of juries to be chosen because they don't know anything about the case?
It is, says Elie. But why is it normal?
It would be one thing to seek people who don’t know about an alleged bank fraud in a corporate case, he argues.
But seating jurors who claim to know nothing after “a summer of protests, during a pandemic, over the death of a particular Black man, that's a different level of ignorance. That requires a different level of myopically not watching the news and not being aware of one’s own community as it's happening.”
In general, we want jurors who don't have preconceived ideas about the defendant’s guilt or innocence. However, in this case, these hand-selected people “who have no opinion about whether or not George Floyd was murdered already tells me … they’re inclined to believe the police,” Elie adds.
Will Chauvin take the stand? Not likely.
Chauvin, by all accounts, is not expected to testify in his own defense.
“In the court of public opinion, most people are like, that means you're guilty,” says Toure. “How does that play out in a trial like this? Is it a damning thing to not testify on your own behalf?”
Elie thinks some jurors will want to hear Chauvin defend himself in his own words.
“I think it's always kind of minus one point if you don't put your defendant on the stand,” he says. “However, if you do put your defendant on the stand, it's minus 10 or 20 points, because who knows what the motherfucker's gonna say?”
The danger of the defendant slipping up and saying something that incriminates himself further “far outweighs” the advantage of having Chauvin show remorse to the jury. It could “blow up the case,” Elie adds.
“Their case was blown up when [the DA] put the fucking video on” to open the trial, says Danielle. “To me, the prosecution could have rested after they played that video.”
Elie imagines that their closing arguments will heavily feature the video as well.
“Do your close, and then you're just gonna make the jury sit there for nine minutes, right?” he says.
Trigger warning: We haven’t seen the worst yet
There are still a few more weeks left in this trial, “which I can't stomach and I don't want to watch and I don't want to read about, because the trauma is very real,” says Danielle. “What are we looking at, in terms of testimony coming up?”
Eventually, the defense will mount its case, says Elie.
“You want to talk about trauma –– the scary thing for me is that this has been two of the worst weeks of watching TV I can remember, and it hasn't even gotten bad yet, because this has been all the prosecution's case.”
He anticipates the defense’s arguments will be “straight-up disgusting,” and will feature cops who testify for Chauvin, more testimony about Floyd's drug use and medical experts talking about Floyd’s poor health.
“It's gonna be gross,” he adds.
Now it’s up to ‘12 randos’
Toure has noticed that, while members of the Floyd family attend the trial every day, nobody is behind Chauvin.
“They had a chair for his supporters and finally took it away … His family has abandoned him,” he says. “I don't know if the jury notices. I wonder if it communicates anything to anybody of note?”
Elie isn’t sure: “I hate to say this, but do we really think the jury is still paying attention?”
Toure is shocked –– how can they not?
“It's a long trial,” Elie responds. “Their attention wanes. They've pre-judged … People don't change their minds about things like this very easily or often. If anything, the jurors are listening for bits that confirm their own preconceived notions. And then they'll get into a room and they'll fight about it.”
If this is the way our justice system works, “it's no wonder we're consistently fucked,” says Danielle.
“We could do jury selection in an entirely different way,” Elie notes. “For instance, we could demand that the jury pool has to be a fair cross section of the community. Now, it doesn't have to be diverse at all.”
The process of jury selection is old –– as a civilization, we’ve done it for millennia, “going back to fucking Athens,” he points out.
“There are so many things we could update to make them more fair and we choose not to, and it comes to bite us in the ass in situations like this, where regardless of the verdict, there will be 30% of the country who doesn't believe it, doesn't trust it, thinks they got it wrong.”
We’ll just have to wait and see “what these 12 randos fucking say,” says Elie.
And while Toure holds onto hope, Danielle, too, will remain cynical until the verdict drops.
“Let me tell you something about me and hope. We're not friends right now,” says Danielle. “I don't know her.”
“You have her blocked on Instagram,” says Toure.
“America always has a way of fucking Black people over while we start to get a little mustard seed of hope,” she adds. “So I'ma hold mine.”
Check out the frustration, rage and absurdity that was the 2020 election on democracy-ish
as Danielle Moodie and Toure discuss the current state of the political climate and our country from a Black perspective.