Updated: Apr 2

The trial of former Minneapolis police officer Derek Chauvin for the murder and manslaughter of George Floyd is, undoubtedly, the trial of the 21st century so far. There are many reasons for this. Every criminal trial is important to the participants and those directly involved. But what happened in the late evening of 25th May 2020, at the intersection of 38th and Chicago in South Minneapolis, had worldwide implications which are ongoing.

The opening three days of the trial have been peppered with highly emotional moments. This is unsurprising. From the moment that mobile phone footage of the incident went viral, emotions – understandably – ran high and this was always going to be an emotional trial. It has proved that way so far. Part of the fascination of this case, as a lawyer, is in seeing how the defence – led by lawyer Eric Nelson – will try to deal with the understandable levels of emotion that, in particular, the jury will undoubtedly experience and, at the same time, ensure they focus on the issues they will actually need to consider in order to decide the case. We’ll look at that a little more in a moment.

The prosecution case was opened on Monday 29th March 2021 by Jerry Blackwell. In any trial, it is crucial to get off to a flying start. The principles of primacy and recency are well known to trial lawyers. Jurors will remember how the case began (primacy) and how the case ended (recency) and opening and closing speeches are a big part of the psychology trial counsel will employ.

Jerry Blackwell’s opening speech was highly impressive. In playing the entire mobile phone footage of the incident, taken by one of the young witnesses, Darnella, the jury were immediately plunged into the full emotion of being at the scene on the 25th May 2020. It was all there, visible, before their eyes. For 9 minutes and 29 seconds, we watched the police restraining George Floyd on the ground by the squad car. Blackwell then used the time, nine twenty-nine, as a kind of metronome, reminding the jury of just how long that restraint lasted.

Another memorable part of the opening was the way Blackwell repeatedly used the phrase ‘he [the defendant, Chauvin] didn’t let up and he didn’t get up’. The phrase was used multiple times by Blackwell and undoubtedly will continue to feature throughout the trial. Blackwell’s effortless use of technology and graphics during his opening also added to the slick and memorable presentational effect. For ‘primacy’, Blackwell did an excellent job.

Eric Nelson’s opening speech concentrated, as might be expected, on where he will hope the jury will, ultimately, concentrate their minds and, in particular, on the key issue of the standard of proof: has the prosecution satisfied you, beyond a reasonable doubt, that Chauvin is guilty of any of the three charges? He tried to turn their attentions to what, realistically, should be the key issues in the case:

· Did Chauvin’s actions cause the death of George Floyd (causation)?

· Did Chauvin have the necessary intention in relation to the allegations?

Eric Nelson tried to draw the jury’s attention to the importance of the scientific evidence in the case, particularly on the issue of causation. This was understandable. He knows he must deal with the fact that almost the entire incident was captured on a variety of video pieces of footage, including mobile phones, static video surveillance cameras, and police bodycam footage. Nelson’s opening was neither as slick, nor as emotionally powerful, as Blackwell’s, but – from a legal perspective – he set the scene for where he wants the jury’s minds to eventually go: causation and intention.

The evidence so far has produced emotional moments. The witness, Darnella, who is now 18, for example, told the court how the incident had impacted her emotionally. She told the court how she had stayed up at night, after the incident, apologising to George Floyd for not doing more to help him. Then she said words to the effect, ‘but it's not what I should have done, but what he [Chauvin] should have done.’ Likewise, the evidence of another witness, Charles McMillian, who had tried to persuade George Floyd to get in the car because ‘You can’t win’. He broke down in tears during his evidence creating yet another powerful emotional moment.

One aspect of Eric Nelson’s cross examination of some of the witnesses deserves mention – namely, his decision to try to elicit from some of the bystanders that they were growing angrier and angrier and, by implication, more threatening to the officers. How this played with the jury is unclear, particularly as the mood of the bystanders is clearly visible from the variety of video footage. Given that the footage shows that the bystanders’ mood seemed very much to be driven by the fact that the defendant’s knee was remaining on George Floyd’s neck, it could be argued that removing the knee might have diffused any rising tension.

Of course, only Derek Chauvin will know what was going through his mind during those 9 minutes and 29 seconds. One of the questions that will start to be asked as the prosecution case unfolds, and gets near to closing, is whether Chauvin will give evidence. That decision will be crucial, and we can only wait and see what the defence decides to do. Doubtless, the prosecution would take him through every second of the video tape, for 929, and question him about it. Will the defence want to open itself up to that? We will have to wait and see.

Ultimately, the outcome in this case will turn on what facts the jury find – including as to the state of mind of Derek Chauvin at the time – and how they apply those facts to the law which applies to second- and third-degree murder, and second degree manslaughter. I would fully expect Eric Nelson to make legal submissions – in the form of a motion – at the end of the prosecution case that there is insufficient evidence to proceed on the second- and third-degree murder charges. This kind of submission – known in England as a submission of no case to answer – is provided for in the Minnesota Rules of Criminal Procedure, rule 26:03, subdivision 18, which states:

“At the close of evidence for either party, the defendant may move for, or the court on its own may order, a judgment of acquittal on one or more of the charges if the evidence is insufficient to sustain a conviction.”

However, the trial has some way to go before that point is reached. Given the emotional impact of the trial so far, Eric Nelson must be hoping that he will soon be able to bring the case more onto the ground that he undoubtedly feels this case should be decided on – causation and intention – with the introduction of the scientific evidence. He began that process this morning, in his cross-examination of George Floyd’s girlfriend, Courtney Ross.

© Cambridge Legal English Academy 2021

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