Why this trial feels different from other police trials.
The first week of the murder trial of Derek Chauvin, the former Minneapolis police officer charged with killing George Floyd, has been an emotional one. Witnesses who watched Chauvin pin the 46-year-old Black man by the neck with his knee described the trauma they had to live with afterward. They said they were upset and desperate to save Floyd’s life; several testified to calling the police on the police. Four of the witnesses on Tuesday were under 18 at the time of Floyd’s death — the youngest is now 9 — and testified with the cameras off, their voices wavering and sobbing as they narrated the nine minutes and 29 seconds they saw Floyd “fighting to breathe.”
Some of the most affecting testimonies came from 61-year-old bystander Charles McMillian, who broke down in tears after watching a replay of the body camera video of Floyd calling for his mom during the arrest, and Darnella Frazier, who recorded Floyd’s fatal arrest in a video that sparked a rallying cry on the streets.
“When I look at George Floyd, I look at my dad. I look at my brother. I look at my cousins, my uncles, because they are all Black,” Frazier said. “It’s been nights I stayed up apologizing and apologizing to George Floyd for not doing more and not physically interacting and not saving his life.”
“I don’t have a mama either,” said McMillian.
As prosecutors walked the witnesses through a minute-by-minute snapshot of the arrest, the witnesses’ accounts remained consistent: They were distressed that they could not intervene, and they’re still upset about it today. They also seemed ready to push back against racist caricatures when the defense’s cross-examination portrayed the witnesses as an “angry” crowd, yelling and endangering the police officers who were arresting Floyd. When Chauvin’s attorney Eric Nelson asked Donald Williams II, a mixed martial arts fighter who was at the scene of the arrest, “Is it fair to say you grew angrier and angrier?” Williams replied, “You can’t paint me out to be angry.”
The prosecution’s witness testimony so far has been evocative, sympathetic, and demonstrative of the powerlessness Black Americans have faced at the hands of the police and the criminal justice system.
john powell, a law professor at the University of California Berkeley and a civil rights scholar, told Vox that Chauvin’s trial feels different from others in which white men — police, vigilantes — were charged with killing Black Americans like Trayvon Martin and Michael Brown. The worldwide protests that took place after Floyd’s death changed the public perspective on policing and racism like never before. And the prosecution is leaning into that shift.
“If I was the defense attorney, I would tread lightly with these witnesses,” powell told Vox. “Even if these bystanders were shocked and rowdy and loud, how does that justify nine minutes and 29 seconds? How does it justify staying on the guy’s neck even when it’s apparent he doesn’t have a pulse? I think at this point the defense is in trouble.”
I spoke with powell about what to make of the witness testimony, how it may play to jurors, and if our justice system has changed at all in the past decade. Our conversation has been lightly edited for length and clarity.
What do you think of the prosecution’s case so far, and their choice of witnesses called to testify?
From what I can tell, they’re presenting a very strong case. Their witnesses are extremely sympathetic, and they will continue to be both sympathetic and authoritative. In many ways, it’s very smart. Secondly, it’s an array of witnesses. Prosecutors putting up not just authoritative people like experts and police dispatchers, but everyday citizens, young people, old people.
We don’t know the defense’s case entirely, but they have to do three things: don’t believe your eyes, my experts are better than their experts, and the witnesses are not credible or biased. The first is hard — nine minutes and 29 seconds? That’s a lot of disbelieving. For the witnesses, the defense will have a hard time, too. The defense will have to turn on the experts, but the overall presentation so far puts the prosecution in a very strong position.
Four of the witnesses who testified on Tuesday to witnessing Floyd’s death were so young that they weren’t shown on camera. What do you think of that decision to invite young people to testify and to also not show them on camera?
Not showing on camera makes sense. The trial is taking place in the courtroom, but it’s also taking place in the world — and you don’t want these young people’s lives to be overtaken. It’s traumatic enough for them to have experienced this event, and then to be called to recount it, they need to be protected. Some people might even question, why’d you call them? They’re so young. There’s always a rationale for that, and it also serves no purpose inside the courtroom to then have them be put on camera in front of the world, so I think it’s the right decision.
Witnesses also repeatedly said that they called the police on the police, which is also very striking. What are your thoughts there?
Again, it’s very smart. It speaks to the lawlessness of what Chauvin was doing. It speaks to the point of when it’s the police committing the crime, what do you do? If someone’s breaking into your house, you call the police. What if it’s the police that’s breaking into your house? What do you do then?
One example I asked my students: Suppose you’re walking down the street at night, and it’s starting to get dark. The streets are kind of isolated and someone is following you suspiciously in a car. Pretty soon, you get nervous and worried. Who do you call? Not one of my African American students said they would call the police. It’s like Trayvon Martin [the unarmed 17-year-old Black teenager who was fatally shot in Florida in 2012]. Many people don’t have that experience, especially white people, who ask why did he call his girlfriend? What can your girlfriend do? Meanwhile, George Zimmerman did call the police.
The prosecution is playing with that conundrum of who do you call when the people you normally call are just watching this happen. When you dwell on that a little bit, it shows a sense of helplessness, a sense of a system that’s broken. It’s implicating that something larger is broken right here and needs to be addressed. It’s also interesting that we have a number of people filming, watching, yelling at the policeman, yet he doesn’t feel compelled to react. Subconsciously, when eyes are watching us, we’re more likely to follow the rules, follow the law, and behave. In this case, he has complete impunity and no concern, which to me is one of the most disturbing things about this.
Relatedly, one of the witnesses, Charles McMillian, was a bystander who had a conversation with George Floyd, in which he essentially told him to get in the car because he “can’t win” against the police. While watching a replay of the body cam video, McMillian broke down in tears and the court had to take a break. Why was that such a powerful moment that even the defense chose not to cross-examine the witness?
— Aaron Rupar (@atrupar) March 31, 2021
Again, the defense is in a pickle. What are you going to say? How do you address such a witness? And I’m not just talking about witnesses who are there, but the witnesses in the courtroom who are jurors. When the jurors watched that nine minute and 29 second tape, they were disturbed. You could tell they were just upset. In contrast to Chauvin, he was not upset. There was no sense that he was fearful for his life.
If you think of Ferguson, almost immediately afterward, it’s no longer the police on trial; it’s the person who had been killed who is on trial. It’s Michael Brown. He has a criminal record, he was this and that, he was big. You think of Rodney King, Eric Garner — in every case, they try to put the person that’s been killed on trial. Part of this strategy is to lean into the American ethos, where Black people are barely given the recognition of humanity. It’s like Black people are always on probation.
Similarly, the defense is going to make the case to say that George Floyd had drugs in him, and he doesn’t deserve respect. The witnesses today — they’re connecting with the jury. It’s an emotional trial. The prosecutors are connecting the jurors with George Floyd and, by extension, connecting him with the witnesses. In that case, it’s smart on the defense part not to get into a thing with the witness, because if you have a sympathetic witness who’s beyond reproach, then what are you going to do? If you antagonize him, you antagonize the jury.
These witnesses also seemed ready to push back on being painted as racist caricatures. Donald Williams II, a mixed martial arts fighter who was on the scene, testified that the placement of Chauvin’s knee caused Floyd to suffocate. And when the defense emphasized how loud the crowd was, yelling at Chauvin and other officers, he said, “You can’t paint me out to be angry.” These witnesses seem prepared to fight back against narratives used to discredit witnesses in the killings of Black Americans before them. What do you make of that?
This case is actually quite interesting, because not only did we have large demonstrations after the video went viral, but I believe the data showed the majority of people who participated in the protests here in the United States were white. So this was unusual. If you look at [the protests after the killing of] Mike Brown in Ferguson, which went on a long time, the majority of participants were Black — but we didn’t have a camera, and the assumption was that Black people were out of control and tearing up stuff in Ferguson. We don’t have that in this situation. We have a very clear depiction of what happened.
The only thing I think the defense has is the experts. If I was the defense attorney, I would tread lightly with the witnesses. I wouldn’t spend a lot of time cross-examining. What can I get from that? Not only do I have to discredit a mixed martial artist, I have to discredit the young kid. I have to discredit the dispatcher. I have to discredit everything. Everybody essentially tells the same story. They were shocked. They were amazed. They were disturbed. Then the jurors themselves, especially those who saw the video for the first time, were shocked. Even if the bystanders were shocked and rowdy and loud, how does that justify nine minutes and 29 seconds? How does it justify staying on the guy’s neck even when it’s apparent he doesn’t have a pulse? I think at this point, the defense is in trouble.
Relatedly, during the George Zimmerman trial eight years ago, the teen friend of Trayvon Martin who testified was painted as having “baggage.” Many saw her as having an attitude instead of understanding why, as a Black girl, she would be hesitant to call the police. Are prosecutors more savvy to anticipate these narratives now? Are jurors and the American public more understanding of how Black Americans view the police?
This is a watershed moment. Keith Ellison, who’s the state attorney general, put together a really good prosecutorial team. But I don’t think it’s across the board. I think it’s mixed with what we see in the country. We see a country almost evenly divided. When former President Trump was saying, “if they don’t behave and they start looting, we’re gonna start shooting,” he didn’t lose any support for that. His effort to sort of paint the room around Black Lives Matter as a terrorist group has some success with his camp, which represents a substantial part of the country.
On the other hand, after George Floyd, compared to data from Ferguson, there was an uptick in the number of Americans who thought race was a serious problem. This is in part probably related to Covid, but they were seeing that event, and being exposed in a different way. I don’t think there’s been a gradual understanding and awakening to policing in America. This is really a breaking point.
Convictions are rare, and so to even get a prosecutor to charge is exceptional. Usually, what we get is something like, ”We don’t know all the facts so we’re going to do a study.” In this case, not only did we get a charge, but we got it almost immediately. There was no long study. It was within days. Not just from the prosecutor, but the former mayor, and from all across the country. We just don’t have many examples of this. I can’t think of another one where it’s been so fast and so clear. Will this set a new pattern? I think it’s too soon to say, but I think it does suggest a new paradigm.
When prosecuting police officers, are there things prosecutors seemed to have learned over the past five, 10 years?
They have learned when we think of the concept of the “thin blue line,” which is a blue shield where police are protected, it’s not just the police, it’s prosecutors, it’s judges, it’s legislators, it’s laws, it’s a large community, where they create this law to protect the police. Sometimes, they try to break that law in communities that are on the wrong end of bad policing, but they don’t get through because they can’t do it by themselves. The Black community can’t really effect change unless it breaks that wall. In this case, the wall was broken. We don’t have all of those people in alignment with each other. But we can’t say across the board that prosecutors are in a different position.
One thing that we learned is that who the prosecutor is or who the state attorney general is really matters. Historically, people don’t generally think about the down-ballot voting of their elected officials in virtually every state. What happened in the last several years is that people are increasingly saying, who’s the sheriff matters, who’s the prosecutor matters, who’s the attorney general matters. Attorneys general and prosecutors have a tremendous amount of power. Some people say they have more power than judges. What we’re seeing now is that power in practice, and some of it, I would say, is now used in a way that promotes justice and not to protect the police. That’s the difference. And that’s what we’re seeing in Minnesota.