Podcast: The uncertain outcome of the Chauvin trial

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Berkeley News writer Ed Lempinen talks about why Berkeley Law professor Jonathan Simon thinks an acquittal of former Minneapolis police officer Derek Chauvin, on trial for the death of George Floyd, is more likely than not.

people march holding a casket with roses on top

Thousands march the day before the start of jury selection for the Derek Chauvin murder trial in Hennepin County, Minnesota. (Photo by Chad Davis via Flickr)

Read a transcript of Fiat Vox episode #73: “The uncertain outcome of the Chauvin trial.”

Anne Brice: This is Fiat Vox, a Berkeley News podcast. I’m Anne Brice.

[Music: “Nesting” by Blue Dot Sessions]

The trial for former Minneapolis police officer Derek Chauvin is on its seventh day in Hennepin County, Minnesota. Chauvin, who was recorded on video last May kneeling on the neck of George Floyd until Floyd died, has been charged with second-degree murder, third-degree murder and second-degree manslaughter.

Today, I’m joined by a colleague of mine, Ed Lempinen, a writer for Berkeley News in the Office of Communications and Public Affairs at UC Berkeley. Ed recently spoke with Berkeley Law professor Jonathan Simon about the case and why Simon believes the outcome of the trial is uncertain.

Ed, thanks very much for being here.

portrait of ed lempinen

Ed Lempinen, a writer for Berkeley News, interviewed Berkeley Law professor Jonathan Simon about the Derek Chauvin trial. (Photo courtesy of Ed Lempinen)

Ed Lempinen: Sure, Anne. Thanks for having me.

Anne Brice: Despite the power of the video and witness accounts that seem to clearly implicate Chauvin in Floyd’s death, Simon told you that it’s likely — at least, more likely than not — that Chauvin will be found not guilty. Can you explain why Simon thinks this is? What are the factors that make the outcome of this case so uncertain?

Ed Lempinen: Well, as non-lawyers, when we watch the video, we see something that seems pretty cut-and-dried. But what we don’t see in the video are a number of other factors that will have a bearing on how the case is argued in court, the jury’s deliberations and the jury’s ultimate conclusions.

Some of the questions are legal questions: Was George Floyd an ongoing threat? When he was handcuffed and on the ground, was he an ongoing threat? Was Derek Chauvin, the police officer, following his police training? Those are legal questions that have a bearing on the case.

There are other questions that aren’t legal: What medical conditions, for example, might George Floyd have been suffering from? There, apparently, was some indication that he tested positive for COVID. He had a heart condition. He may have had some drugs in his system, fentanyl and amphetamines.

[Music: “Our Fingers Cold” by Blue Dot Sessions]

Then, there’s a really interesting set of questions that Jonathan Simon talked about that had to do with bias. There’s a sort of pro-police bias that’s endemic in our culture, in a sense: Policing is very dangerous work, and so we have to trust police officers. We have to trust their judgement in difficult conditions. And urban centers in American cities can be very dangerous and difficult places to work in. These are underlying biases in which we just assume that police expertise is just going to be exercised reliably.

And then there’s, much more sensitive still, biases against Black people. And Jonathan Simon talked about this in the interview — that there’s extensive research that shows that Black people are perceived, even by other Black people, even by communities of color, as being more likely to engage in crime. And that can work directly and in subtle ways against the prosecution, and in favor of Derek Chauvin.

headshot of Jonathan Simon, law professor and criminal law expert

Jonathan Simon, a Berkeley Law professor, told Lempinen that it’s more likely than not that the jury finds Derek Chauvin not guilty. If that happens, he says, an appeal is likely. (Berkeley Law photo)

Anne Brice: Simon also discussed what he sees as strengths and weaknesses on both sides — for the prosecution and the defense. Can you give us an overview of these?

Ed Lempinen: Sure. I think on the prosecution side, the video is very powerful evidence. It’s not only that the jurors can see Officer Derek Chauvin with his knee in the neck of George Floyd for nine plus minutes, but there are videos that show bystanders complaining, “Hey, you’re going to hurt him.” “Hey, this is dangerous, you need to stop.” And so, that’s very compelling.

But, there are these underlying biases, both in favor of the police and biases that kind of assume the guilt of Black people, assume the danger of core urban areas in America. And I think that those biases work in favor of the defense and work against the prosecution.

I think on the defense side, there are a couple of things that we need to think of, in terms of the strengths and weaknesses of the case. In terms of the strength of the defense case, there is going to be an argument, or there have been arguments now, that there may have been medical conditions that impaired George Floyd. There may have been drug issues that impaired George Floyd and made his behavior unpredictable and perhaps more volatile. And there may be arguments that, in fact, Officer Derek Chauvin was following police procedure when he kept George Floyd pinned to the ground, as he did, for all those minutes. And there again, we may have biases that work in favor of Derek Chauvin that may never even be spoken. They may just be underlying, but they may work in favor of the defense.

But the downside, Jonathan Simon said, is really clear: If the jury sees these arguments as insensitive, inhumane or indifferent to human life, those can bounce back against the defense. They may see that the defense is trying to shirk the police responsibility for behaving in a responsible and not a dangerous way.

[Music: “Li Fonte” by Blue Dot Sessions]

And I should add one other thing, and Jonathan Simon stressed this: In American justice, it’s always difficult to convict somebody. It’s a very high standard to prove beyond a reasonable doubt that’s somebody’s guilty. And the system is designed that way. It’s assumed that people are innocent until proven guilty. And there’s a very high standard not just in this case, but in every case, to prove that somebody is guilty.

Berkeley News is examining racial justice in America in a series of stories.

This is a very high-profile case: It’s a police officer involved, the charges are very serious and the penalties are considerable, considerable prison time. And so, the sense is that you have to achieve a very high level of proof in order to convict.

Anne Brice: If Chauvin is found not guilty, if he’s acquitted, did Jonathan Simon say how likely he thinks an appeal would be?

Ed Lempinen: He thinks an appeal is very likely in the case of acquittal. But I think the biggest thing that he and I discussed is this fact: During the process of jury selection, when the prosecution and defense are trying to find a panel of jurors who are not colored by the extensive publicity this case has received, who haven’t formed an opinion about Derek Chauvin’s guilt or innocence, the city of Minnesota announced that they had reached a $27-million settlement with George Floyd’s family.

In essence, during the process of jury selection, the city came out and said, “We think the police department is culpable. We think Derek Chauvin is culpable. We think that wrong was done to George Floyd, and therefore, we’re going to settle now for $27 million.” So it’s, in a sense, announcing to the world, “We think Derek Chauvin is guilty. We think our police department erred and we think, therefore, that we are responsible for striking a settlement with the victim’s family.” That’s like saying, “We think he’s guilty.”

And so, for that to happen during jury selection is something that Jon Simon really questioned the political wisdom of timing it that way.

[Music: “Manny in Sound” by Blue Dot Sessions]

Anne Brice: Simon said, basically, that no matter the verdict, we can’t expect this trial to do too much. What did he mean by that?

Ed Lempinen: Well, I think he made a really interesting point and a really important point. The trial of Derek Chauvin for the death of George Floyd is so politically important, so visible, so volatile. There’s so much at stake, in terms of dealing with police brutality, dealing with racial injustice. It’s huge, and millions of people are watching this very closely. Not just in the U.S., but in the world.

But what Jon Simon was saying was that we can’t expect this trial to resolve those problems and those issues. It’s asking the trial to do too much. It’s going to address the guilt or innocence of one man in a crime or a potential crime: the death of George Floyd.

But what Jon Simon is saying is the trial is important for bringing attention to these issues, the trial is important for reminding us of the legacy of racial injustice in the country. But what we need are policy changes and legal changes in order to reform policing and to make sure that the kind of policing that results in the death of George Floyd or Breonna Taylor or others doesn’t happen again.

Anne Brice: Thanks very much for being here, Ed.

Ed Lempinen: Thanks, Anne, for having me.

Anne Brice: To read Ed’s Q&A with Berkeley Law professor Jonathan Simon, visit Berkeley News at news.berkeley.edu.

This is Fiat Vox, a Berkeley News podcast. I’m Anne Brice. You can subscribe to Fiat Vox, spelled F-I-A-T V-O-X, wherever you listen to your podcasts. For more episodes, visit our podcast page on Berkeley News at news.berkeley.edu/podcasts.

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