If you’ve watched parts of the trial of former Minneapolis police officer Derek Chauvin, or even just the video of the nine minutes and 29 seconds he kept his knee on George Floyd’s neck, it might be hard to imagine anything other than a guilty verdict. No police officer should ever do what Chauvin did. You don’t need to be an expert on excessive force to know that. So why is there any doubt that he will be convicted?
Lawyers for both the prosecution and the defense spent time with Judge Peter Cahill on Friday morning, hashing out the final version of the jury instructions.
That question takes us to one of the key stages of any trial. The jury has heard many days of testimony and will hear from both the prosecution and the defense in closing arguments. But while the evidence has been the focus of much the proceeding, the judge now has an important role to play. He must instruct the jury on the law they will use to decide the case. And he will admonish them that they must follow the law, as he explains it, whether they agree with it or not.
Lawyers for both the prosecution and the defense spent time with Judge Peter Cahill on Friday morning, hashing out the final version of the jury instructions. They start with basic rules of the road, like explaining how the burden of proof beyond a reasonable doubt works, and that the presumption of innocence means the defendant does not have to prove that innocence to be acquitted. The judge will also advise the jury of the elements the prosecution must prove for each of the crimes Chauvin is charged with: second-degree murder, third-degree murder and second-degree manslaughter.
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Little of this is neat or easy, and the parties have argued for different interpretations on a number of issues including intent and causation, based on Minnesota case law. The judge’s job is to resolve these differing positions before he advises the jury. Typically, judges are cautious and err on the side of the defendant in these instructions, to avoid injecting any error into the proceedings that could lead to reversal of a conviction, if there is one, on appeal.
The prosecution has tried a strong case. George Floyd’s death was witnessed by a bystander who was an emergency medical technician with the Minneapolis Fire Department, and another who was an experienced mixed martial arts practitioner. Their testimony was compelling and helped the jury — and the larger jury, the American public — understand what took place that day. Another bystander, a young woman, had the presence of mind to take video.
The chief of police testified, condemning Chauvin’s actions and his failure to act to save Floyd’s life. The expert testimony was impeccable without being patronizing. Everyone watching received a master class in pulmonary and cardiac function. The prosecution’s experts testified that Floyd died because he could not get enough oxygen to breathe — testimony that only reinforced the video footage of Chauvin remaining on top of Floyd, even after the paramedics said he had no pulse.
Now, though, the jury will have to examine each of the charges separately, and in the context of the instructions the judge gives them. While the government’s job is to convince, the defense’s job is to scatter the focus and develop an argument that suggests the facts are too uncertain for the jury to make the necessary determinations beyond a reasonable doubt. Juries sometimes do the unexpected, from Lorena Bobbitt to O.J. Simpson and of course, to Rodney King, where a jury acquitted several police officers accused of a savage 1991 beating that was caught on video.
In most criminal cases, the prosecution must prove the identity of the defendant, and that she or he did a certain act with a specified state of mind. For example, that they committed the crime of burglary because they broke into a house (conduct) with the intent to steal the owner’s possessions once they were inside (state of mind). In Chauvin’s case, each of the three charges requires a different state of mind, which is what distinguishes different degrees of murder and manslaughter. Homicide charges also require proof that the defendant caused the death — in Minnesota the defendant must be deemed a substantial causal factor in the death, but needn’t be the only one.
The jury’s deliberations will be structured around the judge’s instructions on the law. Juries tend to take them seriously. But juries are made up of individuals, 12 of them, and the prosecution must convince every one of them of the defendant’s guilt in order to obtain a conviction.
For an acquittal, the defense must similarly convince all 12 jurors that the prosecution failed to prove guilt beyond a reasonable doubt. But it takes only one juror to “hang” the jury. That means that if 11 jurors want to vote to convict on at least one of the charges against Chauvin, but one juror doesn’t believe the government has met its burden of proof, there won’t be a verdict. Instead, there will be a mistrial, and although the government can retry the case down the road, a hung jury involves delay and the risk that as the evidence ages, the prosecution’s case may become weaker.
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While all eyes will be on the jury once they have the case, it’s important to remember what their job is. They cannot bear the burden of the entire history of policing practices in this country. They must decide this case by weighing the specific evidence they have heard in the courtroom. And they must be clear on what the law does or does not say about the burden of proof and elements for each charge. We cannot expect any more, or any less of them.
They should not consider external factors like the tragic death of Daunte Wright in nearby Brooklyn Center this week. Nor should they engage in what some observers call “jury nullification:” refusing to convict a defendant because they do not believe that what he has done, even if it violates the law, warrants punishment. The prosecution and defense have made their cases. Now it is up to the jury — and the judge — to do the hard part.