Trying the George Floyd case is no simple matter

As the world follows the aftermath of George Floyd’s death in Minneapolis, questions arise about how this extremely high profile case will play out in court. Will a plea agreement keep it from even going to trial? How will a judge seat a jury of 12 fair and unbiased jurors? What tactics will the prosecutor and defense take?

Three criminal law experts agree it will be uniquely challenging to seat a jury, but they have no doubt there will be enough people who are not innately familiar with George Floyd’s death or are not biased for or against the police officers involved.

“Normally, we don’t have 10 minutes of video showing the incident that everybody has seen over and over again,” said Ron Wright, a professor at Wake Forest University School of Law in Winston-Salem, N.C., and a former trial attorney with the U.S. Department of Justice who researches prosecutors and criminal procedure. “It will be a challenge but they will be able to find a jury.”

“I cannot in modern time recall a case that has impacted everybody and that everybody would know about,” said Jay Hebert, a criminal attorney in Clearwater, Fla., who has also been a legal analyst for Court TV and other media. “It will be a very difficult task to seat a jury in this situation. But (jurors) don’t have to be unaware, they have to be unbiased.”

Even if a juror is quite familiar with the general story of Floyd’s death, they will have to convince the court they can make a decision based on the testimony and evidence presented in the trial, not the constant coverage and discussions in the news and social media.

“The judge will ask: ‘If you’ve heard of this case or even if you’ve seen the video can you instead base your opinion strictly on what you hear in the courtroom,’ ” Wright said.

“The term jury selection is really a misnomer,” said Roberta Flowers, who teaches Criminal Procedure courses and Criminal Procedure, Ethics and the Practice of Criminal Law at Stetson University College of Law in Gulfport, Fla.

“They are not selecting jurors, they are deselecting jurors. They are eliminating those jurors they believe are not going to be receptive to their perspective.”

The court will likely prescreen a jury panel, Hebert said, by sending out 200 or 300 jury questionnaires. They can funnel out potential jurors based on how they answer written questions.

As with any trial, attorneys for both sides will question potential jurors in front of the judge. The judge can excuse people if he or she believes they have a clear conflict, such as a police officer in the immediate family. Attorneys can excuse contenders as well, but they have a limited number of strikes.

“They are going to try to get a sense of how strong their (feelings) are for or against police officers. That is going to be the most important thing for both sides to uncover,” Flowers said. “What is going to be interesting from a jury selection perspective is how (attorneys) will try to uncover how the prospective jurors feel about the protests.”

As careful as attorneys will be, they cannot read minds.

“There is the risk of a rogue juror trying to manipulate themselves onto the jury,” Hebert said. “Somebody who has an agenda will do whatever it takes to get on that jury. If somebody has a very pro law-enforcement agenda and felt the actions were justified they might try to get on just to get a hung jury.”

The likelihood of a trial

“I would be astounded if this case goes to trial,” Flowers said. “I have a sense that this case will probably be pled in some way.”

Nationwide, about 95 percent of all convictions are achieved by a guilty plea rather than a conviction at trial, according to Wright.

Hebert surmised two or three of the other officers will cooperate with the government and can be of substantial help if they are given some type of reduced sentence or jail time.

Derek Chauvin, who pressed his knee into Floyd’s neck for almost nine minutes, was first charged with third-degree murder and second-degree manslaughter. He was subsequently charged with second-degree murder.

The other officers, J. Alexander Kueng, Thomas Lane and Tou Thao, have been charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter. Wright, Flowers and Hebert all said it was likely Kueng, Lane and Thao will try to plead to a lesser charge or the existing charges with the minimum prison time allowed if they help the prosecution. 

“I can guarantee the defense attorney for those three will be in touch with the prosecutor,” Flowers said.

“At least two of the police officers and maybe all three are going to negotiate with the government,” Hebert said.

The thousands of protesters who have been demonstrating around the country, as well as countless other Americans incensed by Floyd’s death, will feel a heightened sense of outrage if charges are lessened. But if Chauvin’s case goes to trial, and he is found not guilty of the charges, there will be even greater fallout.

“The prosecutor is going to have to do his own assessment and determine what are the odds he will get a conviction on a top charge in court,” Wright said. “The prosecutor might decide to avoid the risk (and resolve it before a trial.) What you really don’t want is for this to go to trial and present your evidence and the jury come back with ‘not guilty.’ “

Such an outcome could well create even more distrust in the justice and law enforcement systems. The potential for nationwide furor harkens back to 1992 when jurors acquitted three Los Angeles police officers who were seen on video brutally beating Rodney King after a high speed chase when he initially evaded arrest during a drunk driving incident. The verdicts sparked six days of rioting in Los Angeles resulting in 62 deaths and more than 2,300 injuries.

Strategies and challenges

Flowers believes the defense has an uphill battle, while Wright thinks the prosecutor’s challenge may be greater.

“What makes this (excessive use of force) case unique is there doesn’t appear to be any sort of fear for (the police officers’) lives,” Flower said. “In a lot of police shooting cases that is the issue. The defense attorney is really able to convince a jury that they can’t understand what it’s like when you are faced with possible injury or death as a police officer. That’s how you eventually find reasonable doubt and when the police officer is acquitted.”

In the case of Floyd, there was no standoff between police and an armed suspect.

“Because of that very reason the defense attorney really faces a very difficult challenge because of the fact that he is not using the fear argument,” Flowers said. Any prior conversations Chauvin had with the assisting officers about race will be key if they cooperate with the prosecution.

“That could be a gold mine for the prosecutor,” she added.

Historically cases alleging crime by police officers are very difficult to win, Wright said.

“They are more difficult for the prosecution than a typical homicide case,” he said. “Video has been present in cases in the past and that hasn’t been enough.”

Defenders of police try to convince a jury that law enforcement face difficult choices and do the very best they can in tough situations.

“This is a different case in that you don’t have split second decision making (by police),’’ Wright said. “You will have testimony, I’m sure, from the officer saying this sort of restraining is in the realm of what is allowed.”

If the case goes to trial, he expects expert testimony stating this type of restraining keeps the suspect from hurting others or himself, though it went tragically, terribly wrong this time.

“The prosecution has to convince the jury this is not a police officer making a difficult decision. This is a police officer who started way outside the boundaries of training,” Wright said.

Prosecutors and defense attorneys are switching sides, in a sense, when they try a police brutality case. 

“Prosecutors usually have police as their main source of evidence,’’ Hebert said. “They are the star witness.” “Nine-thousand-nine-hundred-and-ninety-nine times out of 10,000 will involve the prosecutor acting very pro-law enforcement.”

He believes one of the key elements of this case will be examining the exact protocol in Minneapolis for justifiable use of force during a takedown.

“If I were prosecuting,’’  he added, “I would want the jury to understand that nobody is above the law.”

Contact Katherine Snow Smith at Katherine@legalexaminer.com. Follow her on Twitter at @snowsmith.