Coming up a few months shy of a year since George Floyd was killed by Minneapolis police last May, jury selection for the trial of the officer seen on bystander video kneeling on Floyd’s neck, Derek Chauvin, began Tuesday morning.
That’s after some doubt about whether or not it would begin this week at all due to an additional charge against Chauvin being in legal limbo.
For now, Chauvin faces second-degree murder and second-degree manslaughter charges before Judge Peter Cahill in Hennepin County Court for the death of Floyd.
Cameras are being allowed in the courtroom — atypical for a Minnesota trial. Local media are streaming the trial and Court TV is airing live coverage. Even without the high amount of public scrutiny, criminal cases can be complex. Here are answers to some questions about the Chauvin case to keep in mind as you follow the trial in the coming weeks.
What are the charges against Chauvin?
Chauvin is currently being charged on two counts, but that could change.
The most serious charge is second-degree murder. In order to convict Chauvin, the state does not have to necessarily prove that Chauvin intended to kill Floyd, said Rachel Moran, an associate professor at the University of St. Thomas School of Law who focuses on police accountability. But prosecutors do have to prove that Chauvin was committing another felony when he caused Floyd’s death, in this case: third-degree assault causing serious bodily harm. Second-degree murder carries a maximum sentence of 40 years in prison.
Chauvin is also charged with second-degree manslaughter, which would require the state to prove that Chauvin acted negligently, creating an unreasonable risk of death or great bodily harm, Moran said. That charge carries a maximum sentence of 10 years in prison.
A third charge of third-degree murder, which carries a maximum 25-year prison sentence, is hanging in the balance. Under Minnesota statute, this charge applies when one person kills another “by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
Cahill dismissed this charge last year, arguing Minnesota statute requires a person charged with third-degree murder to have endangered the lives of more than one person. The prosecution tried to reinstate the charge last month after the Minnesota Court of Appeals ruled in the case of Mohamed Noor, a former Minneapolis Police officer who was convicted of killing Justine Damond, that a defendant did not have to endanger the lives of people other than the victim to be charged with murder in the third degree.
Cahill declined the request to reinstate the third-degree murder charge, though, arguing the Noor decision wasn’t final until the Minnesota Supreme Court has ruled on it.
The state appealed Cahill’s decision, and on Friday, the Court of Appeals ruled that the Noor case was precedent and that Cahill had improperly refused to reinstate the third-degree murder charge.
On Monday, the defense announced it would ask the Supreme Court to review the Court of Appeals’ decision on reinstating the third-degree murder charge. The state then filed a motion to postpone the trial until the Supreme Court had made a determination. Hearing nothing from the Court of Appeals by Tuesday morning about postponing, Cahill allowed jury selection to proceed.
So what happens first?
The first step of a criminal trial is jury selection. Potential jurors are given a questionnaire and some will be selected to be questioned by the judge and attorneys from both sides. The overall goal is to select a pool of twelve jurors (and several alternate jurors) that are unbiased in the case.
“It’s going to be extensive,” Andrew Gordon, the Legal Rights Center’s deputy director for community legal services, said of the questionnaire process to start jury selection. In a typical trial, there’s usually a couple of hours to learn about potential jurors before heading to trial, Gordon said. Attorneys in the Chauvin trial have much more time, and anything related to Black Lives Matter or Blue Lives Matter — like participating in rallies or even having a lawn sign — or other political and social positions will be singled out.
If an issue is identified, the potential juror will then be asked if they hold strong beliefs on policing or BLM — or whatever the identified issue — and if they can still render an impartial verdict.
“What will happen, generally,” said Gordon, “is if someone says, ‘Ya know, judge, I have a Black Lives Matter signage in my front yard because I truly believe that Black Lives Matter, but I am willing and I am capable at looking at the facts in this case and looking at the law that you give me, and if the defense proves to me that the state hasn’t met their burden, despite my particular beliefs, despite everything that’s going on in my life, I would be willing to find an individual, in this case, a cop, not guilty.’ If a person can say that and articulate that, then, by law, the judge doesn’t have a reason to kick them off for bias.”
If the judge does decide a potential juror does not carry bias, but an attorney for the prosecution or defense disagrees, each side can file a “cause challenge” to remove someone from the jury pool. Either side can also contest a cause challenge made by the other, leaving it to the judge to make the final call.
On Monday, before jury selection formally started, the prosecution and defense agreed to remove 16 potential from the jury pool for cause, based on their questionnaire answers, reported Jon Collins of MPR.
After those cuts, the pool is trimmed again through peremptory strikes, by which attorneys can nix a potential juror. In a typical jury selection, the defense has five peremptory strikes and the prosecution has three. In this case, however, the defense has 15, the prosecution eight. “That’s rare,” Gordon of the number of peremptory strikes, and believes that Cahill is trying to signal to both parties that he will be less likely to strike a juror due to an attorney’s cause challenge.
Strikes by attorneys cannot be made for unlawful purposes, such as on the basis of race. If an attorney suspects that’s the reason the other side is attempting to bounce a juror, they can request a “race-neutral reason” for the strike.
Attempting to strike a juror because they are affiliated with or participated in BLM activity, for example, “is typically presented as a political cause as opposed to having to do with race or ethnicity,” said Gordon. The times Gordon has seen a BLM activist nixed from jury selection, it is often because the potential juror expressed allegiance to the cause and admitted they would never find fellow activists guilty.
“That’s one of the concerns I think you could have of this upcoming trial,” said Gordon, “where you are going to see the few non-white people have strong feelings about police misconduct and brutality, and potentially BLM-related issues, they will espouse those strong opinions, and in doing so, will be asked at some point, ‘Do you think you can be fair?’ They are going to say, ‘No,’ and then they are going to get struck for cause.”
What happens after a jury is chosen?
Once a jury is chosen, the prosecutors and the defense will each give opening statements, followed by witness testimony.
Former Minneapolis officers Thomas Lane, J. Alexander Kueng, and Tou Thao, the other three officers at the scene of Floyd’s death, are expected to be called to the stand. Hennepin County’s Chief Medical Examiner Dr. Andrew Baker is also a witness. His autopsy claimed Floyd’s cause of death, aside from Chauvin’s knee, involved Floyd’s heart disease, other health conditions, and the presence of drugs.
Among the most important pieces of evidence is likely to be the video of Chauvin kneeling on Floyd’s neck as Floyd begged for his life, said Ted Sampsell-Jones, a professor of Law at Mitchell Hamline School of Law. “It is incredibly powerful evidence, as we all know from watching it,” he said.
Sampsell-Jones said Chauvin’s defense is likely to argue that Chauvin didn’t cause Floyd’s death. “They will note that Floyd had serious pre-existing medical conditions, and that he had several illegal substances in his body at the time,” he said. “They will also likely try to argue that Floyd began having an acute medical incident, such as a heart attack, before Chauvin even arrived at the scene.”
Prosecutors are likely to rely on a medical examiner’s report, which found the officers’ conduct was the primary cause of Floyd’s death, Sampsell-Jones said. “The state will also note that, even if there are multiple contributing causes of death, the jury can find Chauvin guilty so long as it finds that his conduct was a substantial contributing cause.”
The amount of time the trial takes once opening statements begin varies. The trial for former Minneapolis police officer Mohamed Noor lasted about a month.
Why is the Minnesota attorney general involved?
In most cases, the county attorney is responsible for prosecuting crimes that happen within the bounds of their county. In this case, though, it’s Minnesota Attorney General Keith Ellison who is the lead prosecutor in the case.
That’s unusual but not unprecedented, Moran said.
Days after Floyd’s killing, longtime Hennepin County Attorney Mike Freeman announced he had asked Minnesota Attorney General Keith Ellison to assist in prosecuting the case, and that Ellison had agreed.
“They chose to do that in this case, I think, because there were concerns about whether Mike Freeman and Hennepin County would aggressively prosecute the case in the way that people were demanding,” Moran said.
That’s not the only unusual thing about the prosecution in this case, Moran said. Former Acting Solicitor General of the U.S. Neal Katyal, who now works for a private firm, is also working with prosecution.
“That’s just a very, very unusual situation to have such a high profile and highly skilled and experienced attorney serving as a volunteer prosecutor in a state court case,” Moran said, but speaks to its significance.
Why is it so hard to convict a police officer?
Until Noor was convicted of killing Damond in 2019, no police officer in Minnesota is believed to have been convicted in an on-duty shooting case, including high-profile police killings of two Black men in recent years, Jamar Clark in Minneapolis in 2015 and Philando Castile in Falcon Heights in 2016.
Given that police are often not convicted in such cases, that Noor, who is Black and who shot and killed a white woman, was the first has led some to conclude racial prejudice was in play in the case.
What protects police officers from conviction in many cases is the police use of force statute, which allows police to use deadly force on the job in certain cases where “an objectively reasonable officer would believe, based on the totality of the circumstances known to the officer at the time and without the benefit of hindsight, that such force is necessary.”
Local defense attorneys told the Associated Press Chauvin’s attorneys are likely to lean on this statute to make their case in his defense.
Moran doesn’t think that argument is particularly strong in this case.
“Would a reasonable officer believe that he needed to use force to prevent death or harm? Moran said. “The answer here is, I don’t think any of those officers thought they were facing death or serious bodily injury. They were arresting someone who they claimed was unruly, but beyond that, he did not present a threat.”
If Chauvin is acquitted, are there other potential ramifications for him?
Sampsell-Jones said he doesn’t believe Chauvin is likely to get an outright acquittal. “Much more likely is a hung jury — where the jurors are unable to reach a unanimous verdict. If that happens, the state could try him again,” he said.
Another possibility, Moran says, is for the federal justice system to bring a civil rights charge against Chauvin. This happened in the police killing of Walter Scott, who was shot from behind and killed in 2015 by a South Carolina police officer Michael Slager.
Floyd’s family has also filed a civil lawsuit against Chauvin, the other three involved officers and the city of Minneapolis arguing Floyd’s constitutional rights were violated with an “excessive use of unjustified, excessive, illegal and deadly force.” According to NPR, the specific damages weren’t specified, but attorney Ben Crump said the idea was to make it “financially prohibitive” in the future to “wrongfully kill marginalized people, especially Black people.”
What about the other three officers? When do they go on trial?
Originally, the judge had planned to jointly try all four former officers, but in January, Cahill decided to try Chauvin individually and J. Alexander Kueng, Thomas Lane and Tou Thao together, separately.
In cases like these, it’s up to the judge to decide whether to try defendants jointly or together, Moran said. The judge is supposed to consider things like inconvenience to the witnesses or victims, budgetary constraints for the state that could make it more practical to keep defendants together in the trial. But they’re also supposed to consider whether the defendants have opposing defenses — a scenario that’s likely for the officers involved in this case, since Chauvin is being tried for killing Floyd while the others are being charged with aiding and abetting him and their defense is likely to place the blame for Floyd’s death on Chauvin.
But Cahill didn’t give a legal reason for splitting up the trial; instead, he cited public health.
“The judge said for purely public health reasons, he was severing the trial because it was not feasible to do a trial with four defendants and so much publicity during COVID with health protocols in place,” Moran said.
Still, Moran said it’s likely to be a significant advantage to both Chauvin and the other three officers to have two separate trials so they won’t be blaming one another as they’re on trial together. The trial of the other officers is expected to happen in August.