We have now heard opening statements and a week’s worth of testimony from witnesses in the Derek Chauvin case. I knew the first witnesses were going to be emotionally powerful for the state and that the defense’s goal would be to weather the storm without any self-inflicted damage. I was not prepared to hear how much trauma and guilt has enveloped everyone who was prevented by the police from helping George Floyd.
The other thing for which I was not prepared, is how deeply troubled I am at the defense’s approach to this trial. I have been a public defender for over 31 years, and, to my core, I believe that everyone accused of a criminal offense deserves a rigorous defense by a public defender or private counsel.
But what the world has seen, in the very first televised trial in Minnesota, does not represent how I would defend this case. And I want our community to understand that what we are seeing is not representative of the fine work of many public defenders and defense lawyers.
Related Story: Witness lists, cross-examinations, and ‘The Wire’
Before any trial begins, the defense must choose a theory of the case, which will guide every decision in the trial. A theory is not throwing spaghetti against the wall to see what sticks, or simply poking holes in the state’s case to argue reasonable doubt. A theory is the defense narrative of why the accused is not guilty. The defense consistently tells that narrative in opening statement, through cross-examination of the state’s witnesses, possibly by calling defense witnesses, and during closing argument.
Defense lawyers also prepare the theory of each witness by thinking about what we can achieve through the questions we ask and how we ask them. Finally, we think about how we want the jury to perceive us because we represent our clients.
What is the Chauvin defense theory? From the motions they filed, we knew they were going to argue that George Floyd died of an accidental drug overdose. During the opening, however, they introduced this “unruly mob” idea, that the officers felt so threatened that they were prevented from providing “care” for Floyd. When this “angry mob” theory suddenly appeared in the defense opening, I hoped that I wasn’t hearing dog whistles. Turns out I was.
One by one the people who were forced to watch Floyd be killed by the police took the witness stand to tell their stories. Four young women under the age of 18, a Black man, an off-duty firefighter, and an older Black man all described, often through tears, their feelings of powerless, as well as the anguish and guilt with which they continue to live. Each witness courageously testified, and all deserve respect and empathy.
Yet, most were questioned by the defense in an oddly hostile way.
First, there was Donald Williams, whose voice we hear in the videos calling Chauvin a “bum,” while pleading with him to get off Floyd’s neck. At one point during his testimony, Williams dabbed at the tears in his eyes with a tissue when he recounted how completely powerless he felt watching Floyd being murdered before his eyes.
The defense cross-examination strategy seemed designed to goad Williams into admitting he was angry. After listing the many names Williams called Chauvin and Thao, the defense repeatedly challenged Williams to acknowledge his anger.
“Angry?” I thought. “Who wouldn’t be angry watching the police kill a man before his or her eyes?” But then I heard the whistle and I realized Williams, a Black man, was going to be Exhibit 1 for the defense, an angry Black man threatening the police and preventing them from providing the medical care we have been told they so desperately wanted to provide to Floyd.
The last questions asked by the defense of young Darnella Frazier during her cross-examination were about her posting the video on Facebook and having it go “viral.” “It changed your life?” said the defense lawyer. “Yes,” she answered. The defense asked no more questions. What were we, and the jury, to make of this? Did it bring this young woman, who talked about her social anxiety, the fame, and attention she was seeking?
One of the cardinal rules of cross-examination is never to ask a question to which you do not know the answer. When the state had the opportunity to question her again, the prosecutor asked, “How did it change your life?” And this is when we heard, for the first time, that when this young Black woman saw George Floyd, she saw her father, her brother and her uncles. Through her tears, she told us that she often stays up at night praying to George Floyd and apologizing that she didn’t do more to help him.
Why did the defense lawyer assume that this young Black woman benefitted from filming and posting the murder of a Black man? It was creepily reminiscent of the postcards of lynchings that White people used to send to each other. At minimum, this question, and the assumption behind it, reflect a devaluation of Black life–of a man who was murdered, and a young woman traumatized by being witness to what happened to him.
But this case is not about race. That is what the defense lawyer said twice to one of the prospective jurors. I wondered why he thought he could say such a thing because, in my mind, this case is all about race.
Why not acknowledge the racial dynamics present but focus the jurors on the specific role they are asked to fill in the courtroom – to decide whether the state has proven beyond a reasonable doubt the elements of each of the three charges? Instead we heard the “colorblind” argument of which some White people are so fond.
You know, the argument where we pretend race doesn’t matter, while simultaneously arguing about the “unruly mob” threatening the officers who were restraining a big, scary Black man, who happened to be handcuffed behind his back.
And let’s not forget juror #76, a Black man whom the defense described as being “biased” against the Minneapolis Police Department because of his lived experienced as a Black man in Minneapolis. The defense lawyer, when articulating the reasons for excusing #76 with a peremptory challenge, said that #76 told about a Black man being murdered in the area of 38th and Chicago and having an MPD squad drive through the neighborhood playing, “Another One Bites the Dust.” Being a witness to that spectacle got him removed as a juror, despite saying that he, like many other potential jurors, could be fair.
I was initially hesitant about the trial being live-streamed because I worried about the impact on the jurors and witnesses. I now realize how important it has been for the public to be able to witness what happens during the process of a trial–the good, the bad, and the really ugly.
The really ugly is the systemic racism that permeates our court system, just as it plagues every other institution in Minnesota. The good is that there are well-trained public defenders and defense lawyers representing clients during trials with respect and empathy for the humanity of everyone involved.
Mary Moriarty was a public defender for 30 years, most recently for Hennepin County. She welcomes readers’ responses to email@example.com.