Derek Chauvin: Charged. Vilified. Innocent?

  • Second-Degree Murder
  • Third-Degree Murder
  • Second-Degree Manslaughter

These are the charges that former Minneapolis Police Officer Derek Chauvin faces. I’d like to explore some of the facts surrounding the case. I will also look at what these charges mean for both Chauvin and the prosecutorial team. Finally, I will discuss the possibility that Derek Chauvin will be found “Not Guilty” under the evidence that will likely be presented during his trial.

The Known Facts of The Case

Then Minneapolis Police Officers Lane and Kueng responded to a call for service at approximately 2000 hours on May 25, 2020. The call was for a counterfeit $20 bill. The store clerk who called 9-1-1 stated that Floyd seemed “awfully drunk” and “not in control of himself.”

Upon arrival, Officers Lane and Kueng made contact with George Floyd, the subject of the call for service. Officer Lane and Floyd briefly struggled as Lane attempted to remove Floyd from the driver’s side of his vehicle and handcuff him. After the brief struggle, the officers escorted Floyd to a nearby patrol car.

On the way to the patrol car, the officers observed that Floyd was in some type of physical distress. Thus, they called for an ambulance to come to the scene. As the officers stood near him, Floyd stated multiple times, “Stay with me, man” and the officer agreed. I think his spontaneous utterance could relate to what he may have done before the officers took him from his car.  

Officers then attempted to place Floyd in the rear seat of a patrol vehicle. At that point, Floyd became increasingly aggressive and uncooperative. While resisting being placed in the patrol vehicle and still in a semi-upright position, Floyd immediately began yelling “I can’t breathe.”

The officers then took him to the ground. He immediately began kicking at the officers nearest his legs. Floyd then repeated, “I can’t breathe” multiple times once he was prone on the ground. It was in this position that both Chauvin and Floyd would remain during the entire encounter.

The Examination of the Squad Car

After Floyd’s death, the Minneapolis Police Department squad car that Floyd was placed in was put in storage as evidence. When defense attorneys examined the car in preparing their defense, two chewed-up pills and one complete pill were found in the back seat area.

The state tested these pills and found Floyd’s DNA on them, most probably from his saliva. The analysis found that the pills contained methamphetamine and fentanyl. The implication is that Floyd had these pills in his mouth trying to conceal them from a search. But he probably spit them knowing the amount of meth and fentanyl they contained could be fatal for him.

Floyd’s request that the police stay with him was likely a reflection of that fear. In the moments before he was removed from his own car, it appears Floyd put these pills in his mouth. In the screencap of police bodycam footage shown below, the pills Floyd had in his mouth appear to be visible.

The First Stages of Derek Chauvin’s Trial

Speaking in his opening argument at Derek Chauvin’s trial, Special Prosecutor Jerry Blackwell stated that Floyd verbalized “I can’t breathe” on 27 occasions during his and Chauvin’s interaction. Blackwell said Floyd also stated, “They’re gonna kill me, man… Please, I can’t breathe, your knee [sic] on my neck.”

Prosecutor Blackwell continued by saying that before he died Floyd’s words were further apart. His voice was also heavier and his respirations became “shallower and shallower.” Blackwell said that even following Floyd’s final words of “I can’t breathe,” Derek Chauvin’s knee remained on his neck for an additional 53 seconds. During that time, Floyd was silent with what Blackwell described as “involuntary sporadic movements.”

After that, Floyd remained on the ground silent and unresponsive for an additional three minutes and 51 seconds with Chauvin’s knee on his neck.

Speaking is a function of exhaling the air in the lungs over the vocal cords, which then vibrate creating sounds from the larynx. It might be possible for someone to say they “can’t breath” once or twice with air they already have in their lungs. Yet, not 27 times as is being reported. That clearly requires a person to be able to breathe.

On the evidence presented so far, it’s not plausible that Mr. Floyd died of suffocation induced by Officer Chauvin. This is further evidenced by the utter lack of injury to Floyd’s neck muscles or larynx that would indicate his airway had been cut off by having a knee on the side of it.

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The Medical Examiner’s Report Does Not Give a Cause of Death

The Hennepin County Medical Examiner’s Office conducted Floyd’s autopsy and presented its findings in a full report.

The autopsy found the following blunt force injuries:

  1. Cutaneous blunt force injuries of the forehead, face, and upper lip
  2. Mucosal injuries of the lips
  3. Cutaneous blunt force injuries of the shoulders, hands, elbows, and legs 
  4. Patterned contusions (in some areas abraded) of the wrists, consistent with restraints (handcuffs)

The autopsy lists the following natural diseases for George Floyd:

  1. Arteriosclerotic heart disease, multifocal, severe 
  2. Hypertensive heart disease 
  3. Cardiomegaly (540 g) with mild biventricular dilatation
  4. Clinical history of hypertension 
  5. Left pelvic tumor

The report did not identify any life-threatening injuries.

Section IV states Floyd was positive for COVID-19 and Section V notes “Hemoglobin S quantitation: 38 percent.” It did not appear that Floyd had an active case of COVID. Rather, the test detected debris of a previous infection.

His toxicology report found:

  1. Fentanyl 11ng/mL
  2. Norfentanyl 5.6 ng/mL
  3. 4-ANPP 0.65 ng/mL
  4. Methamphetamine 19 ng/mL
  5. 11-Hydroxy Delta-9 THC 1.2 ng/mL
  6. Delta-9 Carboxy THC 42 ng/mL
  7. Delta-9 THC 2.9 ng/mL
  8. Cotinine positive
  9. Caffeine positive
  10. Blood volatiles: Negative for ethanol, methanol, isopropanol or acetone
  11. Urine drug screen: presumptive positive for cannabinoids, amphetamines, and fentanyl/metabolite
  12. Urine drug screen confirmation: morphine (free) 86 ng/mL

Did George Floyd Die From an Overdose of Fentanyl?

The Center for Disease Control’s website posted a study titled Morbidity and Mortality Weekly Report. The study details multiple fentanyl overdose in New Haven, Connecticut in June 2016. Serum samples were taken from drug-related hospital patients [and later] analyzed at [University of California, San Francisco] demonstrated fentanyl levels of “0.5-9.5 ng/mL.”

The report adds that the therapeutic range for pain relief from fentanyl is between “0.6-3.0 ng/mL.” Furthermore, during the study, the “postmortem levels in the first two patients who died were 11 ng/mL and 13 ng/mL. Nonetheless, that was not specifically stated as the certain cause of death in those patients.

The report also states that “all hospitalized patients had detectable serum levels of cocaine, cocaine metabolites, cocaethylene or levamisole; all which suggest recent cocaine use.”

I will point out here that the 11 ng/mL of fentanyl found in the bloodstream of Mr. Floyd is almost four times the stated therapeutic analgesic dosage to control pain. As the report points out, drug overdose deaths in hospitals involving fentanyl are often in this range as well, along with the presence of other drugs like cocaine which was also found in Mr. Floyd’s post mortem blood tests.

Mr. Floyd was not in good health, generally. He suffered from acute heart disease and sickle cell anemia. His drug use would significantly impact his pre-existing conditions. In any arrest made by law enforcement officers, there is a risk of death to the suspect from excited delirium.

First described in the 1800s, excited delirium follows a consistent sequence of events. The person expresses delirium with fear, panic, shouting, violent struggle and hyperactivity, sudden cessation of struggle, respiratory arrest, and then death.

The coroner’s report fails to make any statement about the exact mechanism of Mr. Floyd’s death. Thus, it is left open to interpretation by the jury. This may be intentional.

Can the State Prove Guilt Beyond a Reasonable Doubt?

We go back now to the three charges brought against Derek Chauvin.

According to Minnesota statutes, for the jury to find Chauvin guilty of Second-Degree Murder the state will have to show that Chauvin, “caused the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting” with proof beyond a reasonable doubt. 

For the jury to find Chauvin guilty of Third-Degree Murder, the state will have to show that Chauvin, “without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life” with proof beyond a reasonable doubt. 

Continuing, for the jury to find Chauvin guilty of Second-Degree Manslaughter, the state will have to show that by Chauvin’s “culpable negligence whereby the person creates an unreasonable risk and consciously takes chances of causing death or great bodily harm to another with proof beyond a reasonable doubt.

What Does Proof Beyond a Reasonable Doubt Mean?

Note the final phrase: “proof beyond a reasonable doubt.” With an actual cause of death missing from the coroner’s report it will be extremely difficult for the state to remove that reasonable doubt from the jurors’ minds. One can say that Derek Chauvin kneeling on Floyd’s neck caused his death. But the prosecution has to make a positive showing to the jury as to how it physically caused that death to remove reasonable doubt in obtaining a conviction. And again, the coroner’s report does not find any injuries to Mr. Floyd’s neck or airway that could have contributed to his death.

In fact, the coroner’s report doesn’t come to any finding of the mechanical process that resulted in Floyd’s death. This would make a Third-Degree Murder charge very hard to press. This is because it requires that the accused directly “caused” the death of another by actions “eminently dangerous” and “evincing a depraved mind without regard for human life.”

If no cause of death is given, how can one be convicted of “causing” it?

The Second-Degree charge would require Derek Chauvin to take the life of another person while committing a felony offense against that person. Officer Chauvin’s conduct in restraining Floyd was not charged as an additional felony in this case. Thus, this charge cannot, by definition, stand.

The Best Chance at a Conviction

I believe the prosecution has the best chance of getting a conviction on Derek Chauvin under the Second-Degree Manslaughter statute. If the prosecution can prove that Chauvin was culpably negligent and created an unreasonable risk and consciously took chances of causing death or great bodily harm then he could very well be convicted under this statute.

The linkage of culpable negligence to creating an unreasonable risk and consciously risking the death of another is a three-legged stool. It requires that all three conditions be proven and present beyond a reasonable doubt. If any of the three are not proven, the jury cannot find him guilty.

Derek Chauvin was acting under the proper scope of his authority to assist in an arrest. Further, he acted consistently with his department’s policy regarding restraining a suspect under arrest. Therefore, he cannot be found culpably negligent in the death of Mr. Floyd.

The Defense’s Strategy

The defense will likely argue that Mr. Floyd had enough intoxicants in his system that, when combined with his heart condition and his struggle in resisting arrest, caused him to enter into a state of excited delirium and died.

It can point to an absence of any injuries to Mr. Floyd’s neck where Derek Chauvin’s knee was. The defense can use that as proof that Chauvin did not use excessive force in restraining Mr. Floys. Additionally, it can argue that this was not the primary contributor to his death.

Furthermore, one may claim that Officer Chauvin had a duty to render aid to an unconscious Mr. Floyd. Nevertheless, with the other officers present, he was not alone in having that responsibility. He was assisting in the arrest. He was not the arresting officer. Nor was he the supervising officer.

Officer Chauvin was not aware of Mr. Floyd’s medical condition or the drugs he had been taking. It would be very hard to say what he might have done to render aid in such a case other than wait for the ambulance, which is what they were doing.

Special Prosecutor Blackwell (Yahoo News)

The Prosecution May Know It Has a Weak Case

During the trial, Special Prosecutor Blackwell has stated that Floyd complained of chest pain and stomach pain.

Chest pain could have been caused by meth-induced cardiac ischemia. And meth use can cause “severe abdominal pain” as the National Library of Medicine states.

Blackwell also stated that Floyd’s respiration rate became shallower and his voice heavier. This is common in people in the throes of an opioid overdose. Fentanyl, as a synthetic opioid, is the most likely cause of this given the levels in his system. 

The charges leveled at Derek Chauvin are essentially three different variations of “killing” someone. This may be a reflection of just how weak the prosecution views its own evidence. It seems to be hoping the jury can fit the evidence into one of the charges. Essentially, it is saying to the jury: “Which of these murder charges goes best with the evidence.”

This assumes that Mr. Floyd’s death could only be murder. It excludes the possibility that it was accidental or unintentional. 

What Does Justice Look Like In This Case?

Mr. Floyd’s death during his arrest was certainly unfortunate. His arrest was over a relatively minor offense. Any arrest affected by law enforcement entails substantial risk to not just a suspect but also to the officer making that arrest. While it is fairly rare, circumstances can combine in tragic ways and suspects die from the physiological and mental stresses that can result in the process of resisting an arrest. And the video evidence shows Mr. Floyd resisting arrest.

Mr. Floyd’s death in custody in and of itself does not prove that Derek Chauvin or the police force are racists. Nor does the mere fact of his death prove he was murdered intentionally or accidentally.

Overall, I think there is reason to doubt a jury will convict Officer Chauvin of the charges the state has brought against him. The evidence is insubstantial and Mr. Floyd’s putting those pills in his mouth may have been the greatest contributing factor in his demise a few minutes later.

Also, I hope that the jury is not intimidated by the demonstrations going on outside the courthouse during the trial. Those demonstrations do not seem to carry any message to the jury other than “You Better Convict Him!”

If jurors are intimidated and do convict Derek Chauvin, in spite of a lack of evidence, it will be mob justice.

Mob justice breaks the very social compact under which our system of laws is founded. It would also lead most likely to a successful appeal of a conviction by a higher court later on.

Should the jury fail to convict Derek Chauvin and Minneapolis explodes again into riots, arson, and killings that could hardly be called just either.

What is the old saying? “If you would demand Justice, then first do Justice yourself”

Do you think “Proof Beyond a Reasonable Doubt” exists to convict Derek Chauvin on one of the above crimes?

Please share your thoughts below. I am interested in what you think.

 

Editor’s Note: This article was written by a federal law enforcement officer who wishes to remain anonymous.

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