Trial and Error: Who’s Really Being Prosecuted In Minneapolis?

As our hosts record this episode of democracy-ish, we are in the midst of the Derek Chauvin trial, “which is extremely triggering,” says Toure.

• The trial of Derek Chauvin, the Minneapolis police officer who asphyxiated George Floyd by kneeling on his neck for nearly nine minutes, is underway.

• So far, the defense’s case is weak –– but it seems to hinge on assassinating Floyd’s character, questioning his health and generally putting the victim on trial.

• This week’s not all bad news, though: The State of New York legalized recreational marijuana and enacted a wide-ranging set of policies to rectify decades of racial inequity in the “war on drugs.”

Until this week, Toure had never watched the infamous viral video of Floyd’s murder in its entirety.

“Now I'm basically forced to watch the whole thing in pieces,” he says. “And I'm also watching witnesses who were nearby, telling the cops: You are killing him, let him go.”

Not only that, Chauvin’s defense hinges on assassinating the character of George Floyd, which traumatizes us further, says Toure. “But typical of America, where the Black man is guilty until proven innocent, where the victim is on trial. Where his quality of life determines the humanity ascribed to him.”

Danielle finds the trial “incredibly distressing” as well. But the worst part isn’t the “cruelty and the lack of humanity” in Chauvin’s actions, she says.

It’s that he apparently “was getting off on the power he had … to take someone's life because he could. And the way he looked into the cameras is how, in elementary school history class, I remember looking at the faces of white people as they are celebrating the lynching of a Black body hanging from a tree behind them.”

That’s why it feels like “history repeating itself over and over again,” says Danielle. “The faith I have in America right now is not even an ember of coal.”

But there’s a spark of hope for those of us who care about equity in the criminal justice system.

Episode Highlights –– America on Trial

‘Admissible’ evidence of… nothing that matters

For Danielle, Judge Cahill’s decision to allow Floyd's criminal record to be admissible in court seems like it’s from another era, before rape shield laws.

“Prior to sexual assault policy, what a woman was wearing when she was raped was admissible in fucking court,” she says. “The idea was that had you not enticed the man, you wouldn't have gotten raped.”

Now, it feels like she’s hearing a similar message, one that says, “Black person: Had you not been caught being Black in the streets, nothing would have befallen you. Or, George Floyd was a criminal so he deserved to be put down.”

It’s galling that someone who can’t “speak on their own behalf because he is dead shouldn't be on fucking trial,” Danielle adds.

But there’s a bigger problem with the logic of admitting Floyd’s criminal record in these proceedings: The police officers wouldn't have known his background when they detained him.

He wasn’t accused of violent behavior and he wasn’t behaving in a violent manner. He was unarmed. So why are we talking about Floyd’s history?

“It’s not the reason why Chauvin’s knee was on top of him,” says Toure.

Threat level: hands in pockets

Floyd was “clearly not posing a threat, not trying to resist,” Toure says. “And still, evil Chauvin is sitting there with his knee on the brother's neck and his hands in his pockets.”

That detail –– the officer’s hands in his pockets –– “conveys an almost evil level of casualness,” he says. “But you can see that his left foot is flexed and he's putting as much pressure as he can on Floyd’s neck with his knee. It's very, very, very difficult to watch.”

Even if the police had seen Floyd’s record before they approached him, they didn’t have the right to kill him.

“That's certainly not the way that we do things,” Toure says. “We don't allow the police to be the judge, jury and executioner. And whatever you say George Floyd did in the past, Derek Chauvin's record is worse, because he's a murderer.”

Based on the video evidence, it’s patently obvious Chauvin wasn’t concerned for his own safety.

“He clearly was cool, calm and collected,” Danielle points out. “He wasn't even concerned about the safety of his fucking sunglasses on top of his head.”

The notion that a police officer can say I fear for my life –– “when you're the one who has a gun and are trained, and the rest of us who are unarmed are supposed to somehow remain calm, cool and collected when you've gone through training … It's fucking ridiculous,” she adds.

“But we place that on Black people all the time.”

The most toxic thing in the Chauvin trial? Racism

As the trial goes on, we expect the defense to use the medical examiner’s autopsy as another way to sully Floyd while suggesting Chauvin isn’t culpable.

Floyd had a number of underlying health conditions, including heart disease, hypertension, sickle cell trait and COVID-19, but one of them was found to be the cause of his death. Toxicology tests were positive for several drugs, none of which were lethal in this case either.

However, the presence of fentanyl in George Floyd's body will “surely” be brought up to create doubt, says Toure.

“I don't think it makes any sense. We'll see if this jury will fall for it.”

Given that the drugs weren’t the cause of death, Danielle sees the toxicology angle as a racial insult as well.

“Frankly, if we're going to use drugs as a way to demonize people, maybe we want to look at white America's love affair with opioids,” she says. “That is a crisis, as compared to the crack epidemic, which was placed on Black people.”

‘Bouquet’ of bystanders: a handful, not a horde

“I didn’t realize until this week, listening to testimony, how many children were present, watching a man's life squeezed from him,” says Danielle.

“To watch … this bouquet of bystanders, as the prosecution referred to them, express such guilt and regret at not doing more ... I think to myself, what could you have done other than what you did, which was take out your phone and record?”

That’s because it was evident that anyone who might intervene would put themselves in danger. Chauvin shook his can of mace at the crowd even as an off-duty EMT bystander approached, in an attempt to give aid to Floyd.

The defense has revealed another facet of its strategy, too: “The officers were distracted,” says Toure.

“By an angry mob of children, one with a t-shirt that said love on it,” Danielle says.

That’s an argument that would fall apart quickly, considering there were “four or five people on the sidewalk, and three [officers] on top of this man's body,” Toure notes. “It's not like he went into cardiac arrest and they couldn’t pay attention to him because they were fighting off the horde.”

Justice by video… maybe

At this point, Toure thinks Chauvin will be convicted.

“Number one, the video is too much,” he says. “Most defendants don't have this level of graphic video to overcome. And his defense team offered a deal in which we would do 10 years. Clearly they think that’s less than they would get going to trial. That tells me they're not confident, given the evidence in front of them, that they're going to be able to beat this.”

Obviously, Toure is painfully aware of “the history and the difficulty of convicting police officers. But this one has this unique situation, this very clear video of a slow killing, done in front of many, many citizens.”

Danielle agrees that the defense’s case is “flimsy at best.”

But the reality is that “we have all the evidence, all the videos in the world, of the way in which Black people are treated by law enforcement,” yet justice remains elusive in the vast majority of cases.

“The assumption is that somehow video is meant to save us,” she says.

Witness after witness (to murder)

Still, given the sheer amount of video evidence in this particular case, “this should be a one-day trial,” says Danielle. “This shouldn't be going on for weeks.”

Toure thinks “the length of it, at least what we've seen so far, is valuable for the prosecution. They're taking it seriously. They're taking it slowly. They're putting every possible thing on the table.”

There’s tremendous “emotional impact” in the testimony of the witnesses –– ”person after person” describing the trauma, guilt and sorrow of watching the events unfold.

“It's driving into you the emotional state of the people who were there, and more than a cold set of facts by a forensic person,” he says.

And the defense has not, as of yet, been able to challenge any of those witnesses, Toure points out.

“The first impression jurors are getting is basically a group of people on the stand … crying about witnessing a murder.”

Heartbreak on the stand

As the prosecution builds its case, it shows bits and pieces of the video evidence over and over –– which is “just so much to take in,” says Danielle.

“I'm a Black queer woman in America, which comes with its own set of atrocities, things that I'm fearful of, concerns I have on a day-to-day basis,” she adds.

But she asks Toure: “As a Black man watching another Black man have the life drained out of him … how does it feel to see this witness, an older Black gentleman, break down, and talk about how he lost his mother –– and how he watched [Floyd] calling out for his mother?”

It’s traumatizing on several levels, he says. “There's the murder of Floyd by police, which is something I consciously know could happen to me –– or anyone like me –– any day. I know every single time I see police officers near me, the situation could go haywire and some shit could happen. I look at them basically like you’d look at a wild animal that could snap at any second for no reason.”

But this case is particularly outrageous because “so often, it's a vehicular situation that brings you into contact with police, Toure says. “As soon as you get in the car, you are vulnerable. This has nothing to do with that. This is just George Floyd moving through his community –– and this happened.”

War (on drugs) is over, if you want it

There’s a “tiny bit of daylight” in the news this week, though –– peeking through a cloud of green.

New York State just became the 16th state to make marijuana legal. The state government plans to expunge the records of people with certain marijuana-related convictions as well.

It’s a welcome development, says Toure.

“The war on drugs has been one of the critical problems, along with the wealth gap, in our community … We are over-policed out of a search, quite often, for marijuana. And when we remove that, we can have fewer Black people catching felonies and misdemeanors and going into the system because of the possession of marijuana. That’s a great thing.”

Danielle wants to “applaud the New York legislature and the activists who have been working to do this. They created probably one of the most comprehensive and progressive legalizations of marijuana we’ve seen.”

From zero tolerance to new tax revenue

It’s a game-changing reversal for a state that, not long ago, took a zero-tolerance approach. Police would find a dime bag or a joint on someone, and they’d “end up serving 10 or 20 years in prison,” she notes.

“But also they are going to be reinvesting 40% of the money gained from the exorbitant tax on marijuana –– 13 fucking percent –– back into the communities that have been most harmed by the war on drugs.”