In Chauvin trial, the defense scrambles to find ‘reasonable doubt’
From carbon monoxide to agitated onlookers, the police officer’s lawyer raised a host of alternative theories about the cause of George Floyd’s death
Derek Chauvin’s knee wasn’t continuously pressed against George Floyd’s neck: That was “camera perspective bias.” The agitated bystanders witnessing Floyd’s slow death made Chauvin press his knee down longer. Floyd didn’t die from a lack of oxygen, it was cardiac arrhythmia, or maybe carbon monoxide poisoning from the police car exhaust. Floyd had a lower tolerance for the drugs in his system because he had been trying to get clean. He had a higher tolerance for the drugs in his system due to years of addiction. After Floyd passed out under Chauvin’s knee, he might have revived himself and become more violent. He might have had superhuman strength.
All these arguments have been raised by the Minneapolis police officer’s lawyer or witnesses testifying for the defense. All of them are legal – and heartbreaking. And they all have the same goal, as the trial nears a conclusion: to convince the jury there is “reasonable doubt” that Chauvin is guilty of second-degree murder.
Ever since protests erupted over Floyd’s death last May 25, a growing percentage of Americans have told pollsters they don’t believe Chauvin should have been charged. The narrative is part of an age-old system that corners Black people in the worst of circumstances, and then when they struggle, or cope, or resist, or speak out, or run, or step one inch over an inhumanely drawn line – there are always people who conclude, “See, they brought it on themselves.”
But, watching the trial, there comes a time when the cumulative weight of this search for alternate explanations of Floyd’s death becomes too much. For me, that moment came Wednesday, during the testimony of David Fowler, a retired medical examiner, who spent nearly half an hour theorizing with Chauvin’s attorney, Eric Nelson, about the possibility of carbon monoxide poisoning. As if you could die from sitting near a parked car for 10 minutes. As if Chauvin’s knee was no more than a coincidence or an afterthought in the killing that inspired the largest movement for racial justice in American history.
This latest theory came on the 25th day of a trial in which Nelson has consistently tried to characterize Floyd as a malingering drug addict. As if troubled members of society don’t deserve the same treatment as everyone else. As if drug addiction is no more a disease than a choice.
This portrayal of Floyd is how our legal system works. Trying to create reasonable doubt is what the system permits lawyers to do – encourages them, sometimes compels them – when defending the guilty or the innocent. But these arguments are also what have enabled police officer after officer after officer to escape conviction in the brutalization of Black citizens.
Yes, Chauvin has the right to defend himself in this trial. He is charged with second-degree murder, which carries a punishment of up to 40 years in prison, besides charges of third-degree murder and manslaughter. But it is crushing to hear Nelson throw far-fetched and at times contradictory arguments up against the wall – and all over Floyd’s character – to see what might stick.
The main witness for Chauvin on Wednesday was Fowler, a former chief medical examiner for the state of Maryland. He is a white man who was born in Zimbabwe and attended medical school in South Africa during the apartheid era. He is named in a pending lawsuit filed by the family of a Black teen in Maryland who died after three police officers remained on top of his handcuffed body for more than six minutes. Fowler ruled that death an accident. He testified Wednesday that the cause of Floyd’s death was “undetermined.”
During a break in Wednesday’s testimony, I called Ayesha Bell Hardaway, a law professor and director of the Social Justice Law Center at Case Western Reserve University in Cleveland. When I said hello, Hardaway responded with a painful exhalation of breath and emotion.
“Whooow. Too much,” she said. “Too, too much.
“Obviously it is extremely emotional and frustrating, not just to see the images of a Black man on the concrete, not being helped, over and over again. Or even to hear the bystanders and think about all of what they must have been thinking and feeling in the moment,” Hardaway said. “But just the fact that we continue to have these conversations in a way that makes it sound like somehow, even in such a helpless state, that Mr. Floyd was responsible for what happened to him.
“To a lot of people I’m talking with, it seems like a Hail Mary. A farce.”
I asked how she reconciles her legal knowledge about Chauvin needing to defend himself with Chauvin’s lawyers having the right, or even the obligation –
“That last part, about obligation?” Hardaway interrupted. “There’s strategy that goes into this work, and having some credibility in the room is critical. There are lots of defense lawyers who will say, ‘I’m absolutely not going to chase that rabbit down the hole. That’s just going to make me look like we’re grasping for straws.’
“I don’t think there is anything that compels them to use this scattershot approach that I’m sure is alienating some of these jurors.”
The pain of watching these arguments might be some semblance of what was felt by Donald Williams, the bystander who argued and pleaded with Chauvin to take his knee off Floyd’s neck. Williams stood there helplessly, watching death in slow motion. And then Chauvin’s lawyer tried to argue, while cross-examining Williams, that his demeanor contributed to Floyd’s death by making Chauvin concerned for his own safety.
“You grew more and more upset,” said Nelson, with Chauvin sitting beside him in a blue suit. “Would you agree with that? You grew angry.”
“I grew control and professionalism,” Williams responded.
Chauvin’s lawyer recounted Williams cursing the officer, calling him a “tough guy” and a “bum.” “Those terms grew more and more angry,” Nelson said. “Would you agree with that?”
“They grew more and more pleading for life,” Williams responded.
On Thursday, Chauvin said he will not testify, which is his right under the Fifth Amendment. He will not tell the jury his version of events. Nelson’s closing argument, currently scheduled for Monday, will likely attempt to conjure images of a dangerous, drugged-out Black man with beastlike strength. He may lean on previous claims that Floyd saying “I can’t breathe” was a form of resisting arrest. He may say Chauvin kept his knee on Floyd’s neck because bystanders were angered by the knee on Floyd’s neck. He will repeat the words “fentanyl” and “methamphetamine.”
“Me, I’m hanging on to the hope that what I am seeing is what the jurors are also seeing and what they’re feeling,” Hardaway said. “Like, this is incredible. This is preposterous.”
Hardaway forced herself to look away from the television screen at times during the trial. She compartmentalizes her legal and human sides. “I’m trying to find ways to deal with it, right? … Because it is really frustrating. I’m having a hard time sleeping at night.
“But holding onto hope.”