Law, Politics & society, Research

‘Cinematic’ video, police condemnation sealed guilty verdict in Chauvin trial

Jonathan Simon, Berkeley criminal law expert, says an appeal is certain

chauvin is held in hand cuffs by an officer while he talks with his attorney in a court room

Derek Chauvin’s conviction for murder and manslaughter probably rested heavily on the shocking video of Floyd pinned to the ground, says a UC Berkeley expert. (Court TV photo via AP)

In a trial with profound implications for racial justice and policing in America, a Minnesota jury today found former Minneapolis Police Officer Derek Chauvin guilty of murder and manslaughter in the death of George Floyd nearly 11 months ago. The verdict, says UC Berkeley law professor Jonathan Simon, probably rested heavily on the shocking video of Floyd pinned to the ground and on powerful testimony by police leaders against the former officer.

That evidence, in particular, helped to overwhelm the advantages that police typically hold when officers are accused of committing a crime in the line of duty, Simon said in an interview just after the verdict was announced. And yet, he predicted, the case will not be enough, by itself, to lead to broad changes in American policing.

Simon is a specialist in criminal law and associate dean of Berkeley Law’s Jurisprudence and Social Policy Program.

This interview has been lightly edited for length and clarity.

Berkeley News: What is the main takeaway from the guilty verdicts announced against Derek Chauvin?

headshot of Jonathan Simon, law professor and criminal law expert

Jonathan Simon (Berkeley Law photo)

Jonathan Simon: One possible takeaway is that we really have experienced, in the 10 or 11 months since George Floyd was murdered, one of those transformation points in American culture. One could draw parallels here to the #MeToo movement a couple of years ago about believing women in sexual harassment and rape charges, which has some analogies to the kind of impunity that we had seen for police officers.

Some of these powerful cultural presumptions in favor of the police, powerful cultural models of otherness that are often applied to Black people when they’re victims of police violence, have been significantly impaired or weakened. People may see them as a defect in their reasoning in a way that they didn’t really before May 25 last year.

The other takeaway, though, could be that this, in effect, draws a line that will leave most police misconduct and the use of less-lethal force still unaccounted for in criminal law. The videos captured a unique engagement: In many of these situations, you have something that looks like a chaotic, confusing situation. There’s at least a possibility that somebody had a gun, or you’re in an obscure sort of place around a car. In the Chauvin case, by the time the lethal force was being expressed, things had moved into an almost cinematic clarity.

Will this case make it easier to prosecute police misconduct in the future, especially police killings?

It’s not 100% clear that this case will point toward a greater willingness of the criminal legal system to hold police officers in this situation accountable.

I would fear that, in the future, a very high threshold of clarity would have to be met before an officer would be punished.

On the other hand, you could see more prosecutors bringing these cases, particularly because they’re elected officials and they’re very sensitive to changing public opinion on questions of police conduct. We already saw it back in Baltimore, the Freddie Gray killing, where a prosecutor charged an officer with murder. That ended in acquittal, but it was a very low-evidence situation compared to this one.

Ten hours of deliberation, three guilty verdicts — were you surprised that the jury saw this as so clear-cut?

I thought it would go at least another day. In the end, the defense’s job was to raise elements of reasonable doubt. And what’s clear from the speed of this verdict is that it wasn’t a hard call for anyone on the jury. And it’s surprising when you get 12 people together that you don’t find one or two who have at least doubts and who need to be persuaded.

It may be second-guessed now whether the defense should have put more evidence on.

Can you expand on that idea? Can you assess the most important factors that may have swung the outcome in favor of the prosecution or against the defense?

To me, the witness that stood out was Dr. Martin Tobin, the pulmonary expert. He testified at length about the mechanisms of breathing. He provided a remarkably precise sort of frame-by-frame analysis of the video with a pulmonologist’s eye to help jurors understand George Floyd’s breathing situation. He gave us a very compelling understanding of what it means to breathe, that it’s not enough to just have some air coming into your lungs. It has to penetrate deeply enough.

That really shut down one of the most famous and often-used police narratives, which is that if you can talk, you can breathe. We have to call that a fairy tale now.

He also knocked out one of the “reasonable doubt” defenses early — where Chauvin’s knee was, whether it really was on his neck or really on his back. This testimony suggested that it didn’t matter. The question was the compression of the rib cage and the inability to draw a deep breath.

And finally, the other major reasonable doubt that the defense hoped to sow was about Floyd’s drug intake and whether that was responsible for his inability to breathe. Tobin, with some precision, showed you that the evidence points in the opposite direction, that if somebody is losing their ability to breathe because of an opioid overdose, they don’t fight it. They kind of drift into it. They don’t show signs of air hunger, as Floyd, visibly in the eyes of the world, did.

How important, ultimately, was the video?

The video was absolutely critical, and the fact that the prosecution began with it, and that they came back to it — and the fact that the defense made a point of saying we need to focus on the full 16 or 17 minutes, not just the nine minutes — showed how important that was.

All the defense could say is it’s not the whole story. Well, unfortunately, it’s the story that surrounds the lethal moment. Criminal law generally takes a fairly narrow view of when the crime happened, and it’s usually when the causal force is being applied.

When we talked before the trial, you felt that we had to assume a strong possibility of acquittal. What happened that neutralized that possibility?

The prosecution conducted its case with artistry — they had a choir of lawyers, and they hit every note. They clearly had given great thought to every impression that they were going to make, every graphic image that they were going to show. And I think they did an awesome job of that.

The role that the police witnesses played — the veteran police training officer from Los Angeles, the actual sitting police chief of Minneapolis, in his uniform. Typically in these cases, the prosecution witness will be a retired former officer outside of the “blue wall.” So I think that was very, very powerful for the prosecution.

George Floyd’s girlfriend didn’t so much supply critical factual information that made a difference in deciding how he died, but she provided an enormous quality of humanity to this now-deceased man. I think that had a powerful effect.

How likely at this point is an appeal?

It’s certain.

What bases will the defense use for the appeal?

There’ll be a large number of them. It’ll include the refusal to change the location of the trial, the refusal to delay the start of the trial. It will probably include decisions to seat jurors where the defense had raised some concern, rather than using one of their peremptory challenges. So, there should be a lot of information that the appellate lawyers can try to say points to somebody who should have been kept off the jury.

They’ll have appeal issues with the judge’s decision to not sequester the jury after the killing of Daunte Wright by police in a nearby suburb, in the midst of the trial.

The decision by the city of Minneapolis to announce, during jury selection, a $27 million civil settlement with the Floyd family — the defense wanted a delay in the jury selection and a delay in the start of the trial to let that pass. That may be their single best issue.

Finally, the statements by political officials, including U.S. Rep. Maxine Waters, that drew a motion for mistrial by the defense. I think she said something like, protesters have to get more confrontational if there’s not a guilty verdict. They’ll certainly appeal on that.

Could they have success with those arguments?

I’m pretty skeptical. Appellate courts are generally reluctant to overturn a jury’s verdict. These kinds of issues around venue and high publicity come up in almost every crime of great notoriety. And, yet, trials are rarely moved, and courts rarely overturn that.

And the concern that the jury was influenced by politicians saying there could be trouble — they hardly needed politicians to draw that conclusion. That was obvious after George Floyd was murdered, when there were demonstrations that at least sometimes became violent or destructive.

Again, I don’t think that an appeals court is going to ultimately overturn this.

A lot of people will look at this case and wonder what effect it might have on policing in America.

For me, the really important and interesting question is: Where does the movement to reform policing and to re-imagine it go from here? A lot of people are going to say that this is a transformative moment, and that we have fixed the problem of policing in America. There’s accountability now. I’ve given you reasons why I’m skeptical that accountability may be as forthcoming as this case might suggest.

But even if it were to be, I’ve always taken the view that the criminal law is a very weak tool to try to change a model of policing that has been premised for a very long time on aggressive confrontation, especially with people of color, especially with Black people, under circumstances where police will often have reason to fear, once they’ve initiated the contact, and in which it may be much harder for jurors to get past the question of reasonable use of force.

To the extent that this trial succeeded in casting Derek Chauvin as outside of the world of policing, it may reinforce a comfort level with the kind of policing we have, that the justice system can do enough to remove the bad actors among police, when, in fact, the policing model itself needs to be changed. And we can’t do that with criminal law alone — it doesn’t allow for that kind of institutional reform.