• Tigger Lunney

"George Floyd is Dead Because Mr. Chauvin's Heart is Too Small": Closing Arguments Conclude

For the past five weeks, Move For Justice News has provided coverage of the trial of Derek Chauvin for the murder of George Floyd that has sought to understand the dense, sometimes arcane processes, procedures, and legal strategies of the most watched and scrutinized trial of our century.

Over that time, some unexpected things, ranging from tragic to mundane, have happened outside the courtroom that have seeped into the halls of Hennepin County’s Government Center. The horrifying shooting of Daunte Wright by Brooklyn Center police officer Kim Potter. The $27 million civil settlement between Minneapolis and George Floyd’s family. The heavy-handed and profoundly reactionary tactics of Operation Safety Net, that leaves many people around the Twin Cities feeling significantly less safe, although certainly caught in a net.

Inside the courtroom, Eric Nelson’s limp demands for mistrial because of Maxine Waters and Saturday Night Live aside, the trial proceeded over these past five weeks mostly in the vacuum that the American criminal justice system insists upon, for better or for worse. As we’ve written here before, and as we’ve seen play out throughout the trial, the disconnect between the law and social justice is an inevitability. I don’t say “dense and arcane” as a judgement of the criminal justice system, but to illustrate how, down to its very foundations and origins, it’s a system that exists to reenforce and protect itself, lest it collapse. As absurd as it would seem from the outside looking in, there was no way that the prosecution of Derek Chauvin was also going to be an examination on the systemic racism built into policing, because doing so would make Chauvin look LESS GUILTY.

And let’s not fuck around here: he’s guilty. But whether the jury finds him guilty of all three charges, zero charges, or somewhere in between, this trial ain’t gonna fix a thing.

Throughout the trial, it’s been pretty clear that the prosecution was going to depict Chauvin in the classic “bad apple” sense. It’s also been pretty clear that defense attorney Eric Nelson chose a two-pronged strategy, pouncing on the occasionally weaknesses of the prosecution’s case while also bombarding the jury with enough alternate theories and tangential information to create the illusion of “reasonable doubt.” It comes as no surprise, then, that closing arguments Monday were more of the same.

In many ways, what we saw was actually fairly textbook. The State, who has the burden of proof, generally uses the closing argument in a summative way: tie everything together and lay out a coherent narrative that makes sense, connecting it back to the charges and the instructions presented to the jury. This is precisely what Steve Schleicher did, interspersing the facts of the case with moments to humanize George Floyd or communicate a certain degree of moral outrage at Chauvin’s behavior. “Common sense, not nonsense,” was Schleicher’s theme, and if we all collectively winced when he said in no uncertain terms that prosecuting Chauvin was “pro-police” because Chauvin was a single bad actor, let’s at least remind ourselves again that plenty of people want, despite all evidence, to like a trust cops. The state even pointed this out—the bystanders filming Chauvin murdering George Floyd, seeing a wrong, called the cops.

After Schleicher concluded his summation, defense attorney Eric Nelson began what may have been the most wildly what-the-fuck moment of the entire trial, giving a closing argument that seemed to go everywhere and nowhere at once, for almost three hours. This runs against most conventional wisdom for a closing argument, with more than one experienced criminal trial lawyer observing on social media that an attorney talking for that long has nothing to say. But Nelson, whose only goal is to make a single juror unsure that the prosecution made its case, is exceptionally skilled and saying nothing until it starts to seem like something. This is absolutely what he did here. Although loosely dedicated to arguing that Chauvin didn’t go outside acceptable force and that Floyd didn’t die because of Chauvin’s actions, Nelson talked about everything from space aliens to chocolate cookie recipes to lights reflecting off plexiglass, while subtly planting the idea in the jury that the state’s burden of proof was much harder than what was actually laid out in the jury instructions. Members of the jury, who were all attentive through Schleicher’s closing, started to fade, until Judge Peter Cahill had to make the unprecedented decision to interrupt Nelson’s arguments for lunch.

After lunch, Nelson continued as if he’d never left off, until his closing came within sight of the three hour mark, leaving several members of the jury fairly exhausted. Although this writer tends to give credit where credit isn’t always due, it’s undeniable that Nelson’s argument was constructed to give an out to anyone on the jury struggling with the idea of convicting a cop. It’ also undeniable that the sheer length of Nelson’s closing worked against attorney for the prosecution Jerry Blackwell’s strengths for his rebuttal.

The rebuttal, which the prosecution gets to do as a sort of “final word” after closing arguments since the burden of proof is on the State, requires an attorney to be extremely nimble and respond with very little preparation to what the defense said, and Jerry Blackwell proved he was more than capable of working on the fly throughout the trial, especially his cross examination of Fowler last week. Nelson’s closing undercut Blackwell’s effectiveness by giving him simply too much to cover to convince an already exhausted jury. Despite this, Blackwell did successfully refute the key premises of Nelson’s closing, boiling things down to a few simple quotes: “believe your eyes,” “In your custody, in your care, not in your custody, I don’t care,” finishing with “George Floyd is dead because Mr. Chauvin’s heart is too small.”

After Cahill delivered final instructions to the jury, he sent the first twelve chosen during jury selection to deliberate and dismissed the last two. This is standard and came as no surprise, although earlier in this trial, Hennepin County Court officials had misled both members of the press pool and the media as a whole that the alternates were not known or determined prior to the trial.

After the jury was dismissed, Nelson attempted two final motions that Cahill declare a mistrial. Nelson claimed prosecutorial misconduct because Blackwell repeatedly referred to Nelson’s case as false “stories” during his rebuttal. He also requested a mistrial because of the potential jury exposure to comments made by US Representative Maxine Waters at the Daunte Wright protest in Brooklyn Center and “plotlines in television shows,” an apparent reference to a Saturday Night Live sketch. Cahill dismissed both of those motions, while once again complaining about elected officials speaking about the case in the media, asserting that Nelson might have grounds for appeal.

Much has been made of this statement, but as we learned during pre-trial motions when the MN Court of Appeals ordered Cahill to reconsider including the 3rd Degree Murder charge, Cahill has no domain over or judicial influence on the Court of Appeals, and then, just as now, showed no hesitation in displaying his personal irritation on the record.

The jury deliberated until shortly after 8 PM last night and began deliberations approximately 8 AM today. It's impossible to predict when they'll return to the courtroom to deliver a verdict. In the meantime, Operation Safety Net hangs over the Twin Cities. The National Guard occupies street corners in Minneapolis. Supplemental police are on their way from Ohio and Nebraska, not bound by the Federal Court order to allow journalists to cover any protests or actions without police interference. There's still no transparency about who and what agencies are in leadership roles. This is what America looks like right now.

Yeah, this trial isn't gonna fix a damn thing.

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