By JIM TANIZAKI, Former Chief Assistant District Attorney of Orange County
George Floyd died on May 25, 2020 during an officer-involved incident in Minneapolis. The process of his death was captured on cell phones by nearby civilians. On June 3, Minnesota Attorney General (AG) Keith Ellison, announced the filing of criminal charges against the officers.
In this press conference, AG Ellison expressed a strong belief in the charges and his commitment to seek justice. Yet, he also stated that “winning a conviction will be hard” and that “history has shown there are clear challenges here.”
He may have been trying to manage expectations, given the acknowledged challenges in securing a conviction, especially on the most serious charges as discussed below. The “history” that AG Ellison spoke about has some parallels to a 2011 case in Orange County that I helped prosecute.
Back on July 5, 2011, another civilian death received many headlines when several police officers were involved in the killing of a mentally ill, homeless man named Kelly Thomas. There are some eerie similarities to each incident.
As I will explain, and based on my experience as the prosecutor involved in the charging and eventual trial of some of the police officers in the Thomas case, I wanted to offer some perspectives and insights into the major issues and events that we are likely to see as the Floyd case unfolds.
So, what happened in the Thomas case?
Thomas was living in the streets of downtown Fullerton and was a familiar fixture there. Fullerton police received a call from a restaurant reporting that a person was possibly trying to break into cars in the parking lot. The description matched Thomas.
Upon contact with the police, Thomas was told to sit down and he cooperated as officers tried to verify any car break-ins. There were none. One thing led to another, and the officers decided to arrest Thomas for possession of stolen property (the officers found some unopened mail addressed to a local business in Thomas’ backpack – further investigation after the incident revealed that the mail had been thrown away by the local business as junk mail).
After several minutes of a back-and-forth verbal exchange and an ominous threat made by one of the officers to Thomas, an attempt was made to physically arrest Thomas. This resulted in a scuffle and struggle with several officers. The incident was captured by a nearby camera.
The video and the audio transmissions caught in the officers’ recordings preserved the entirety of this incident. The struggle would last for several minutes and more officers would arrive. Thomas was punched, kicked, tasered, struck in the face with the taser, and smothered by several officers.
Thomas did not fight back but definitely struggled and resisted the physical onslaught. During this time, Thomas repeatedly stated that he could not breathe as officers lay on top of him and as he was being restrained.
Towards the end, Thomas calls out “Dad” (Floyd called out for his Mama) and then goes silent. He is handcuffed and motionless. After a couple minutes, paramedics arrived and first attended to an officer who had a minor cut and then the paramedic noticed Thomas. The officers did not direct the paramedic to Thomas.
The paramedic found Thomas unconscious and not breathing. Emergency measures were undertaken but Thomas never recovered and died several days later. The video of the incident is quite disturbing.
The Orange County District Attorney at the time, Tony Rackauckas, personally reviewed the case and decided to file murder and involuntary manslaughter charges against one officer and involuntary manslaughter and excessive force charges on two others.
The Thomas incident attracted a fair amount of media attention and there were small protests about police brutality. The community seemed appalled at the actions of the officers that led to Thomas’ death. DA Rackauckas decided to handle the prosecution himself and asked me to co-prosecute.
At that time, I was overseeing the violent crimes division of the DA’s office and I knew the DA would not have time to prepare this case for trial. For the next couple years, I handled the day-to-day preparation of the prosecution. So, DA Rackauckas and I would eventually take the case to trial from Dec. 2, 2013 to Jan. 13, 2014.
Despite the video of the incident, the jury acquitted the officers of all charges. Why? I will explain some of the reasons below.
It is within this context and borne from the hard lessons of the Thomas case that I write about the Floyd case prosecution. There is a lot of common ground between the two cases. And, let me preface my comments with the fact that I am not privy to the investigation and police reports and information possessed by the AG prosecution team and the defense attorneys for the four ex-officers charged with Floyd’s death.
In any high-profile criminal case, there will be plenty of drama and twists and turns throughout. I will break down my analysis along several areas:
The Criminal Charges: Derek Chauvin is charged with Count 1 — second-degree murder (causing Floyd’s death without intent to kill while committing a felony assault). Count 2 — third-degree murder (causing Floyd’s death by committing an act that is eminently dangerous showing a depraved mind and without regard for human life). Count 3 — second-degree manslaughter (causing Floyd’s death by culpable negligence and creating an unreasonable risk and consciously taking a chance of causing death).
All the counts deal with the same conduct against Floyd. Count 1 is the most serious and Count 3 the least. Without diving into the details of each count, the listing of three different charges for the same conduct may reveal the AG’s lack of confidence in sustaining a conviction for the most serious charge.
Having prosecuted about 30 homicide trials myself, I understand why the AG is filing multiple charges for the same act. The AG may not be confident they can get a conviction on Count 1, so they are filing the additional charges to make sure there is a conviction on something.
Nevertheless, if these three charges against Chauvin stand until the trial commencement, this does open the door for the defense. The defense will likely argue that the AG has no clue what Chauvin is guilty of given the menu list of charges.
The other three officers (Tou Thao, Thomas Lane and J. Alexander Kueng) face these charges: Count 1 — aiding and abetting second-degree murder (which carries the same potential maximum punishment as committing second-degree murder) and Count 2 — aiding and abetting second-degree manslaughter.
What I said above regarding Chauvin and his multiple-option charges applies here too. Under the aiding and abetting theory, the three intentionally performed acts that aided Chauvin’s acts that led to Floyd’s death.
Each of the four defendants’ conduct will be broken down so that individual culpability can be assessed. While Chauvin held his knee around Floyd’s head and neck, Keung held Floyd’s back and Lane held his legs. This lasted approximately 8 minutes.
During this time, Lane asked if they should roll Floyd to his side and later said he wanted to roll him on his side. Are these verbal statements a defense to his charge that he was aiding Chauvin’s acts leading to Floyd’s death?
Along with the criminal complaint listing the charges, the AG filed a Statement of Probable Cause (Statement), which outlined the facts of the incident. According to the Statement, Thao watched the actions of the three officers and kept himself between the crowd of growing onlookers and handled traffic concerns. Unless mentioned by name, these ex-officers will be referred to as defendants since a formal criminal complaint has been issued.
The Prosecution and Defense Team: I am expecting that the AG will put together an elite team of their best trial lawyers and investigative personnel for the prosecution. They will spare no effort or resources.
There are attorneys representing each of the four defendants. I do not know their background or capabilities. What is key here is whether the defendants have adequate resources individually or collectively to mount their defense. It will take a lot.
Sometimes, police unions may decide to fund the defense. These unions have significant financial resources. I do not know what their posture is in this case. The resource capability of the defense team is vital on many levels and will be discussed as we go along.
In the Thomas case, we believe the officers received financial support and it made a big difference on the case. The ability to hire experts in various fields for a criminal trial is immensely helpful. Resources to permit investigating and searching out leads is critical. Both sides are likely to hire jury consultants to help pinpoint effective strategies and the type of juror more favorably inclined to their position.
Change of Venue and the Jury Pool: I would expect the defense team to make a change-of-venue motion. That is, to move the case out of Hennepin County (where Minneapolis is located) and into some other Minnesota county.
Given the huge pretrial publicity, the defense will argue the challenge of finding a fair and unbiased jury in Hennepin or its surrounding counties. The AG will fight hard to keep the case in Minneapolis. I think the case will stay in Minneapolis.
The defense team in the Thomas case did not request a change of venue because Orange County has been traditionally viewed as supportive of law enforcement.
The Custodial Status of the Defendants: Right now, the bail for Chauvin is set at $1.25 million and the other defendants at $750,000 to $1 million depending on meeting certain release terms. Lane posted bail and is out.
Getting the defendants out of custody is an urgent necessity for the defense team. Having the defendants out of jail is not only good for their health and well-being, but it allows for easier access to meet and discuss strategy. Defense attorneys who have clients in jail are at a distinct disadvantage in preparing a case for trial.
It also helps when the trial commences to see the defendants out of custody and walking in and out of court with their families and friends. The defense will want jurors to see the defendants, charged with murder, interacting in a way that would portray them as normal, friendly, human, and supported by many in the community. In other words, they don’t look like killers. All the defendants in the Thomas case were out-of-custody and during the trial filled the courtroom gallery with their supporters.
When Does the Trial Begin? Emotions are running high right now. But, as we all know, in the months and potentially years to come, there will be many other newsworthy events happening in our world. As various issues and events unfold, there is just a natural evolution where the Floyd case may not stir the raw emotions that it does now.
We can expect that as the trial gets closer, there will once again be marches and protests all over the country, especially in Minneapolis or wherever the case is being heard. Clearly, the defense strategy is to elongate the time to trial.
In the Thomas case, there were many hundreds who protested after his death, but by the time the trial started almost two-and-a-half years later, there were only a dozen or so protestors who made their presence known. Public interest does wane as time wears on. Tactically, the prosecution will seek an early trial, while the defense will request the judge for as much time as possible to ready their case.
The Backgrounds of Floyd and the Defendants: Both sides are diligently digging up as much information about Floyd and the defendants and other potential witnesses. It appears Floyd has a criminal history.
Two defendants, Chauvin and Thao, reportedly have several complaints filed against them. Every element and fact about these incidents and more will be microscopically analyzed to see if any of the prior conduct of Floyd or the defendants could be used in the trial.
Obviously, dirtying up any party or witness could reap a windfall with the jury. In the Thomas case, the trial judge permitted a couple incidents where Thomas acted out violently (though did not hurt anyone) towards a couple people. I don’t think the jury was affected by that information given the video of the incident laid out how each party acted. I think that will be the case here too.
In terms of prior history, there could be some relevance to any past relationship between Chauvin and Floyd. There is some information that they worked as bouncers at the same club and any problems or friction between the two will certainly be investigated. If Chauvin testifies (which I am guessing he won’t), he could testify about knowing something about Floyd which elevated his concerns when dealing with him.
The Video and Other Recordings: When the Thomas video became public, there was significant outrage. We thought the video was strong evidence in our arsenal. A video such as the Thomas and Floyd incidents will evoke strong emotions. When the Thomas video was played for the first time to the jury, the juror’s reactions seemed to suggest great sympathy for Thomas. There were gasps and emotional reactions from the courtroom gallery.
One thing to keep in mind for the trial is that the video will be played over and over and broken down in seconds and precise detail. What can happen is that repeated viewing of the video may dull the viewer from its emotional impact. The defense may want the video played a lot. Aside from the incident video, there exists a large trove of other material that may find some relevance.
The Minneapolis Police Department (MPD) has been using officer body cams since 2016. These body cams videotape the various contacts and activities of the officer throughout their shift. Usually, the practice is to keep these recordings and store them electronically.
For someone like Chauvin, who has been an officer for many years, there could be thousands of recordings involving him. Each officer will have recordings related to their work. Both sides will have to review these recordings to locate conduct that may have some relevance to the issues in the case. This is a lot work and it has likely begun.
Use-of-Force Experts: This case will involve dueling experts called by each side. There are hundreds, if not thousands, of use-of-force experts within the police community. The prosecution will find no shortage of experts who will speak to the fact that Chauvin’s force used on Floyd was excessive and criminal. Putting a knee forcibly down on the neck of a handcuffed individual while he is lying face down on the ground will be condemned in the strongest of terms.
From my own experience in the Thomas case, use-of-force experts universally held to the belief that the neck and head areas are to be avoided unless the suspect is not being controlled or when the officer’s life is at risk. Neither seems to apply in the Floyd case.
In Thomas, our attempt to find a use-of-force expert to testify against the charged officers was met with a cold shoulder by people in law enforcement. Back then, and perhaps in some cases now, testifying against a fellow officer for on-duty conduct was problematic. While the AG will find many willing and qualified experts to choose from, the defense team may encounter some difficulty finding a credible expert willing to testify that the force was reasonable under the circumstances.
Medical Experts: According to published reports, the Minneapolis Medical Examiner has ruled Floyd’s death a homicide, caused by asphyxiation due to compression of his neck.
There was a preliminary report suggesting that Floyd’s death was caused by his underlying health conditions and drugs in his system. The prosecution must prove that the actions of the defendants caused Floyd’s death. There may be other factors involved in his death, but their actions must be a substantial factor.
One might think that the key to the prosecution case is the notion that the defendants knew Mr. Floyd’s death was inevitable from his repeated cries, “I can’t breathe.” This is heard several times. Those words should have put the defendants on notice that Floyd could die, right? Well, sort of.
In our case, Thomas repeatedly stated he could not breathe. A medical expert called by the defense in our case testified that if a person can say he can’t breathe, then he is actually breathing. This principle may be part of police officer training.
I would expect the defense team in the Floyd case will also call medical experts to challenge the official finding of the Medical Examiner and conclude there were many factors to Floyd’s death, including drugs, heart disease, etc.
In the Statement filed with the criminal complaint against the officers, the AG stated that, while Floyd was being arrested for allegedly passing a counterfeit $20 bill, Officer Lane observed “foam” at the edges of Floyd’s mouth.
This is before Floyd was placed on the ground. Further, the Statement reveals that when he was being forcefully placed into the back seat of the police car (before being placed on the ground), Floyd repeatedly said he could not breathe. Again, this was before he was placed on the ground and Chauvin’s knee was on his neck.
So, using the Statement written by the AG, the defense team can advance the theory that Floyd was not killed by the defendants, but that his death was attributable to drugs and his underlying health conditions while resisting arrest. Defense medical experts can explain how Floyd was already showing signs of significant health distress and issues before the knee to the neck was engaged.
Police Officer Training and Policies: Every officer before he or she joins the police force will undergo several months of training at an academy. This is where they learn the basics of being a police officer. Among a vast array of topics, the officers will learn the proper use of force in various circumstances. They are both taught in a classroom setting and in hands-on demonstrations.
The MPD has a written manual and requires all sworn officers to know its contents. In this manual, there will be a section on the use of force. The key point is – what were these defendants taught and trained with respect to the use of force in these circumstances?
Specifically, in effectuating an arrest and possibly facing some resistance, what level of force is taught? Did they receive instruction on force as applied to the neck area? Both sides will do a critical analysis of the lectures and written policies to find out what the defendants were taught.
Significantly, the MPD has a policy enacted in 2016 stating that their police officers have a duty to intervene and either stop or attempt to stop the inappropriate use of force by another police officer. This is a critical point and will be used by the AG against the three defendants who did not intervene with Chauvin.
In the Thomas case, the training issue was raised by the defense and a senior training officer within the Fullerton Police Department testified that the force depicted in the video was reasonable and the conduct of the officers were consistent with their training. I don’t expect that type of testimony in the Floyd case, but the training issue looms large in this case.
Conclusion: A lot has changed in our society on the issue of police officer’s use of force since the Thomas case. Historically, police officers were given more latitude when it comes to their use of force. Over the years, and especially with the recent Floyd death and other officer-involved civilian deaths, societal attitudes are shifting. This shift may affect how jurors view the police actions in the Floyd case.
Regardless, I expect the AG to face some significant hurdles in their efforts to secure a guilty verdict, especially with respect to the most serious charge of murder in the second degree for the defendants. There are many facts and circumstances beyond the videotape that will go a long way towards impacting the eventual outcome. Also, I would not be surprised if the defense seeks a plea deal.
As I mentioned early in this article, my objective was to analyze the Floyd case and offer insights from my personal experience. Nothing I write is meant to disparage any party or either side of the case.
(Postscript on the Kelly Thomas trial – Though the officers were acquitted, many police departments now have incorporated specific training in dealing with the mentally ill and homeless due to the case).
Jim Tanizaki is the former chief assistant district attorney in the Orange County District Attorney’s Office, where he served for over 33 years. He was also an adjunct professor of law at Whittier Law School from 1999 to 2019. He is currently practicing law in Santa Ana and can be reached at [email protected] or (714) 655-7633.