Commentary: Two Key Moments in the Prosecution’s Case Show the Inhumanity of Chauvin’s Actions

By David M. Greenwald

This isn’t your TV courtroom drama where you see a coherent narrative put on by the prosecution and defense throughout the proceedings.  When I train the interns to watch trials, a key thing I remind them—keep an open mind, wait until the summations before you decide your opinion of guilt or innocence.

Why?  Because until you see the whole picture there are too many disparate pieces of information.

Having watching the closing arguments, I have come to the conclusion that Derek Chauvin committed some form of murder and should be found guilty.  Will he?  I have seen far too many police cases starting in 1992’s Rodney King beating to offer much of an opinion.  Though I think this is a different time and a different jury.

I think the defense offered a twofold defense here—one that any force was reasonable and necessary, and second that if George Floyd died it was from something other than the 9:29 seconds he was held on the ground with a knee on his neck.

To counter that defense the prosecution offered four medical experts who testified it was not a sudden cardiac arrhythmia, and one offered that it was not a heart attack.

To counter the idea that this was reasonable force, seven experts testified.  That included Sgt. David Ploeger who testified that force should have ended right after Floyd was taken to the ground.  And others who argued that it was “unnecessary,” “unreasonable” use of force.

But, for the sake of argument, let us say we were sympathetic to the idea that Floyd was resisting and that the initial use of force was justified.  And let’s say we buy into the doubt created by the defense case that drug use or some underlying condition could have contributed to the death.

There are two key moments which the prosecution highlighted that I think undercut that defense definitively.

Prosecutor Schleicher said: “George Floyd’s final words on May 25, 2020 were, ‘Please, I can’t breathe.’ And he said those words to Mr. Officer. He said those words to the defendant. He asked for help with his very last breath. But Mr. Officer did not help. The defendant did not help, he stayed on top of him, and continued to push him down, to grind his knee, to twist his hand, to twist his fingers into the handcuffs that bound him, looking at him, staring down at times though horrified bystanders who had gathered and watch this unfold.”

He later pointed out: “Somebody’s telling you they can’t breathe and you keep doing it, you’re doing it on purpose. What else is going to happen when you push somebody down on the pavement? Everybody knows this. Everybody knows what happens when you push somebody against the pavement.”

Later, he pointed out, the response from the police was: “That takes a lot of oxygen to complain about it.”

Schleicher points out this is “indifference.”  He argued, “Did the defendant ever listen? Ever consider medical attention? No one defended that decision, the failure to give CPR, not even Dr. Fowler.”

That’s a big problem for the defense.  But it’s not the only point that really resonated.

The officer continued “beyond the point that he had a pulse.”

”I think he’s paying, passing out,” Officer Lane says.

Schleicher points out that “Officer Kueng can’t find a pulse.”

He argues: “Now, the greatest skeptic of this case among you, how can you justify the continued force on this man when he has no pulse? No pulse, continued the restraint, continued grinding and twisting and pushing him down and crushing the very life out of him. It wasn’t too late. He could have rolled him over, performed CPR. No. He continued. Past the point of finding a pulse, past the point where the ambulance arrives, past the point where the EMTs get out of the ambulance.”

As Schleicher points out, “Force must be reasonable. It must be reasonable at the point it starts, at the point it ends, and at all points in between officers are required to reassess the situation, to reevaluate the situation. To take in the information and react to it. The Defendant didn’t do it.”

Given those two actions, I think, even if you buy the defense case—and I tend to not buy it—it’s impossible to defend the indifference to human life.

That, at the very least, fits the definition of third degree murder: “Whoever, 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, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.”

Those two acts alone clearly and unmistakably show depraved indifference to human life.  I don’t see how a reasonable jury finds otherwise.

—David M. Greenwald reporting

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