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Litman: The prosecutors are scoring at the Derek Chauvin trial. Here’s why

The general consensus that the prosecution in the Derek Chauvin trial has had a very successful first week and a half is being countered by cautionary reminders of how difficult it is to convict a police officer of excessive force.It is in fact notoriously difficult to win such cases, but the prosecutors in the Chauvin…

The general consensus that the prosecution at the Derek Chauvin trial has had a very successful first week and a half is being countered by cautionary reminders of how difficult it’s to convict a police officer of excessive force.

It is in fact notoriously difficult to win these instances, however, the prosecutors from the Chauvin trial have broken out of the paradigm which often leads to not-guilty verdicts or hung juries where authorities are involved. They stand a good prospect of winning a certainty.

For the record:

5: 43 PM, Apr. 07, 2021An earlier version of the article said George Floyd was murdered on May 26, 2020. It was May 25.

Washington Post criminal justice reporter Mark Berman laid the challenge on Sunday, explaining that”when police kill people, they are rarely prosecuted and hard to convict.” He cites data collected between 2005 and 2015 showing that defendants apart from police were convicted of murder about 70% of cases that went to trial; for police, the speed is around 50 percent.

Officers, Berman writes, often successfully argue that they”have to make split-second decisions in tense, potentially dangerous moments.” If juries understand the problem as a white-hot few seconds in a face-off having an erratic, menacing defendant, they tend to conclude the officers deserve leeway.

That was largely what happened at the initial state trial in the Rodney King case, regardless of the savage videotaped thrashing King endured at the hands of the Los Angeles Police Department. (Full disclosure: I worked on the national retrial of those four officers, that resulted in convictions.)

Chauvin likely won’t gain from these built-in advantages for authorities, in part due to the skill and informed of their prosecutors and in part because of the unusual nature of this evidence.

First, the prosecution has effectively painted May 25, 2020, as a nondescript, comparatively peaceful afternoon in south Minneapolis before Chauvin and his fellow officers burst on the scene as an invading force. The jury watched video of George Floyd entering Cup Foods, intoxicated but not a savage. A dozen or so neighborhood witnesses and convenience-store employees testified for their helplessness as he died. They formed a type of Team George; a lot known to Floyd by his first title on the witness stand.

All of this turns the tables on the standard excessive-force case. The jury’s attention has been concentrated on regular-people witnesses at a comfortable street-corner scene, maybe not an isolated experience between cop and guess full of potential danger. The prosecutors’ presentation has the benefit of driving home the excruciating quality of the most damning evidence in the case, the video — played and replayed — of Chauvin kneeling on Floyd for 9 minutes and 29 seconds.

As prosecutor Jerry Blackwell told the jury in his opening statement,”You can believe your eyes that it’s homicide.”

Again compare this with the very first King trial and what its famous videotape shows. The Simi Valley jury watched only the truncated action of officers encountering King alone — apparently feral and inconsistent — in a dark, urban sort of DMZ.

The facts in the Floyd instance have dealt the Chauvin prosecutors a simpler hand than in many excessive-force prosecutions. Chauvin’s conduct is not possible to spell out as a adrenaline-charged split-second reaction to personal danger. Yes, Floyd acted erratically as he was taken into custody, needing to go into the squad car. The officers were warranted in certain usage of force, but at the time Chauvin applied his knee to Floyd, as the prosecution and the entire world have observed that the officer was in no immediate danger.

In fact, the most distinguishing evidentiary component in the case might be Chauvin’s lackadaisical, nearly vacant air as he retains his knee onto a handcuffed, prone and non-responsive Floyd.

The video proof has paved the way for another exceptionally unusual advantage for the prosecution, one that I’ve never noticed in a different excessive-force case. No less than the leader of the Minneapolis Police Department, along with its longest-serving manhood, reluctantly testified that Chauvin went rogue, that the force he used was excessive. In place of a familiar blue wall of silence, the jurors have witnessed a grim wall of censure.

All these departures from the paradigm create the prosecution’s job less of an uphill battle than usual, but another identifying feature in the Chauvin trial interrupts their task.

Chauvin is confronting three different fees: second-degree murder, third-degree murder and second-degree manslaughter. His guilt or innocence could turn on arcane if not gossamer-thin distinctions one of the fees, chiefly about motive. (In the federal system, by comparison, excessive-force instances normally turn on a straightforward standard: whether the officer applied constitutionally excessive force.)

The hodgepodge of charges increases the potential for a compromise verdict. The jury might well opt to convict Chauvin of murder rather than manslaughter but pick the third-degree charge and acquit (or hang) on the more serious flat-rate fee. Specifically, conflicting medical testimony which begins Thursday could create enough uncertainty to maneuver them in that way.

So the prosecution may be on a glide path to victory, but of what kind? Will any murder conviction seem great enough given the inherent difficulties of prosecuting excessive-force cases, or will something less than second-degree murder be understood as a loss that can re-inflame the neighborhood and the country? That question could ascertain whether the Chauvin prosecution, even with a guilty verdict, goes down in history as a triumph or a failure of justice.

@HarryLitman

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