I’ve been meaning to write about this issue for a while, as I covered the beginning of it (see all posts here). And the longer I delayed, the more complicated the issue became, until I became unable to remember everything, much less synthesize it.
The story in short: two people made a documentary movie, “The Fall of Minneapolis” (watch it here) maintaining that George Floyd was not murdered by Minneapolis police officer Derek Chauvin, but died of his many ailments (including a big titer of fentanyl in his blood), not from having his neck compressed so that he was asphyxiated. (Nor, the movie maintained, was his neck really compressed: Chauvin was supposedly using procedures taught him by his department). The movie convinced both John McWhorter and Glenn Loury, as well as me, that Chauvin was not guilty of murder—at least if you use the “reasonable doubt” standards mandated in such a case.
Then a former Washington Post reporter, Radley Balko, wrote a multipart attack on the movie on his webpage arguing that the thesis of “The Fall of Minneapolis” was wrong on several counts, including its claim that Floyd was not asphyxiated. Balko’s analysis was enough to convince Loury (and, to some extent, McWhorter) that they were wrong—that perhaps Chauvin really did murder Floyd. Having read all this stuff, and intending to post on it, the sheer magnitude of the task defeated me. But I felt remiss in not calling attention to Balko’s attack. And I couldn’t come to my own conclusions, for essential material, like the training procedure for Minneapolis police, was missing.
In January, Coleman Hughes, now an essayist for The Free Press, wrote a piece arguing that Chauvin was not a murderer but a scapegoat for all those who wanted him convicted for supposedly killing a black man. Hughes and Balko went back and forth about having a debate, and eventually had one, but one that, says Coleman, was stacked because the moderators were on Balko’s side.
Now we have the longest article yet published in the Free Press, a second piece by Coleman Hughes reiterating his claim that Chauvin should not have been found guilty of the murder of Floyd. His claim, as you’ll see below (click on the headline to read) is not that Chauvin was clearly innocent, but that the standards of evidence supposed to be applied by the jury, involving “reasonable doubt,” would have found such doubt in the prosecution’s evidence against Chauvin. Ergo, Chauvin should have been found not guilty.
The article is informative and, to me, convincing—Chauvin seems to have gotten a bad trial, including jurors biased against the prosecution, a prosecution that didn’t properly give the evidence, a defense that didn’t do its job, a judge who didn’t seem to know what was going on, and the venue (and the judge’s instructions) terrifying the jurors that if they didn’t find Chauvin guilty, there would be riots.
Read it; it has all the links that you need, including to Balko’s work and the debate.
Here’s Coleman’s main points in the essay:
The purpose of this essay is to set the record straight on Balko’s claims, which range from useful counterarguments to misleading assertions and outright errors. Our disagreements fall into two basic categories: the first is the question of how exactly Floyd died. And the second pertains to whether or not Chauvin was following his training.
One final, important note before I dive in: Balko’s series generally mischaracterizes my essay as arguing for the definite truth of various propositions—or doing a “just asking questions” routine—when in fact I was arguing for the existence of reasonable doubt.
In a typical debate, each side is trying to prove a claim by summoning more evidence than the other side—“guns are helpful” vs. “guns are harmful,” for instance. The burden assigned to each side is symmetric. If either side summons more evidence than the other, then that side wins.
Criminal trials are deliberately not like this. They are highly asymmetric—and that’s intentional.
It’s not enough for a majority of the evidence to indicate guilt. And it’s not enough if the defendant’s guilt is “highly and substantially more likely to be true than untrue.” That is the “clear and convincing evidence” standard.
Rather, “beyond a reasonable doubt” means that “there is no other reasonable explanation that can come from the evidence presented at trial” other than the defendant having committed the crime in question. Keep that phrase—no other reasonable explanation—at the top of your mind. My Free Press piecewas written from the perspective of reasonable doubt. In the essay, I summed up my thesis like this: “In short, there are two major justifications to reasonably doubt Chauvin’s felony murder charge: whether he caused Floyd’s death and whether he committed a felony.”
There remains significant uncertainty about the death of George Floyd—uncertainty that was not settled at trial. My purpose in this essay, as in my original column, is not to settle that uncertainty for good by putting forward a definitive version of events—that is not the defense’s burden anyway. My purpose is to convey the existence of other reasonable explanations.
With that throat-clearing out of the way, let’s move on to Balko’s substantive arguments.
The arguments turn on what really killed George Floyd (he had several medical conditions and was full of drugs), whether the restraint technique used by Floyd really involved asphyxiation, whether that technique was part of the regular training, verbal or written, by the Minneapolis police, what “homicide” means to a coroner versus a jury, whether the jury was tainted by people who were pro-Floyd to begin with, and what are the criteria for conviction. And more.
Read it for yourself; I’ll simply give Hughes’s conclusions in brief:
I think there was clearly reasonable doubt on whether Chauvin caused Floyd’s death. There were two rival theories of his death: the positional asphyxia theory (put forth by Dr. Tobin and endorsed by the prosecution), and the adrenaline surge theory (put forth by Dr. Baker and rejected by the prosecution). Both were reasonable theories, but only the former implicated Chauvin. That alone should have introduced reasonable doubt on all three charges.
As for whether Chauvin assaulted Floyd—that is, whether he used unlawful force outside the scope of MPD training—reasonable people can disagree on whether there was reasonable doubt. Balko would emphasize that MPD [Minneapolis Police Department] officers were trained to worry about positional asphyxia, move people to the side-recovery position as soon as possible, and use the hobble.
. . . .What are the odds that Chauvin received a trial in accordance with these instructions? Given the jurors who spoke about their fears for their physical safety, given the juror who was found wearing a “GET YOUR KNEE OFF OUR NECKS” t-shirt before the trial, given that everyone knew the city would burn if he was acquitted yet the trial location wasn’t changed, and given that the jury wasn’t sequestered in one of the most talked-about trials in modern American history—I would submit that the odds are close to zero.
Ultimately, we’ll never know how a jury might have weighed the evidence under even halfway normal conditions. And it is probably too late for any of this to matter for Chauvin himself. What is clear, however, is that there were many reasons to doubt that Chauvin was guilty of the crimes he was charged with, and the American public should not be afraid to say so.
Once again, this is a complicated issue that you should judge for yourself, ideally after having watched the movie, read Balko’s ripostes, and having read at least Hughes’s second essay: the one quoted here. Chauvin’s conviction for murdering Floyd spawned the “racial reckoning” that has persisted until today, and regardless of whether we need a reckoning or not, the conviction that started it all needs to be carefully examined. More important, the conviction of a man for a “crime” that carries reasonable doubt is a miscarriage of justice that needs to be rectified (Chauvin is serving 22 years in prison, and will be 60 when he’s released). In my view, they need to try Chauvin again, but bringing in all the evidence and with a jury that is not intimidated.
I read all of Hughes’ essay. I agree with him.
Glenn Loury and John McWhorter have looked into this repeatedly. They had Keith Ellison on their podcast to discuss it.
The prosecutor in the case (Ellison) successfully suppressed some critical evidence that would have (likely) induced reasonable doubt in some jurors.
E.g.:
– The bodycam footage that shows Floyd saying he can’t breathe long before he’s on the ground, requesting to be put on the ground, resisting being put into the squad car, etc.
– The training slide which shows the MRT and looks *very* similar to what Chauvin did with Floyd. (The training person during the trial stated that what Chauvin did was not trained. This was a lie, in my opinion.)
– The full video sequence (rather than just a snapshot that showed a particular posture by Chauvin).
Chauvin was culpable for not paying close enough attention to Floyd and not placing him on his side. But not M2. Maybe M3; but that was dropped.
I read Liz Collin’s book They’re Lying and I find it pretty weak and mostly an anti-“libtard” polemic. I have not watched the entire movie, The Fall of Minneapolis.
I haven’t read any of the books and articles referenced, or watched the movie. Living in the UK, I watched a good many hours of the trial televised on whatever cable channel (maybe CNN, I can’t recall). It was gripping TV.
I do not remember any of the details, but I do remember that I was convinced by the case against Derek Chauvin. I would have voted guilty.
I’d be interested if you would read the new Coleman Hughes piece and report whether you still think you would vote guilty.
Have not yet read Hughes latest, but Balko’s thorough analysis was also pretty convincing and critical of Hughes.
There are 3 parts
https://radleybalko.substack.com/p/the-retconning-of-george-floyd
https://radleybalko.substack.com/p/the-retconning-of-george-floyd-part
https://radleybalko.substack.com/p/the-retconning-of-george-floyd-part-382
He misrepresented what Hughes said and Hughes addresses that.
I read the same things and found it unconvincing overall.
We are talking reasonable doubt and fair trial parameters.
I read the three articles and found that his zeal in criticizing Coleman resulted in misrepresentation of what Hughes said and meant. Coleman has addressed that.
I did not find the articles convincing enough for me to change my view that this was not a fair trial.
Reasonable doubt. Fair jury. Evidence manipulation. Unreasonable location. And more.
I see that comments have been turned off for the Free Press article, but before they were closed, I posted:
And I see no reason to change my mind.
If there were people on the jury who had already decided he was guilty before the trail started, if evidence was withheld, if the judge “warned” the jury there would be riots if they found not guilty, then he didn’t get a fair trial.
I looked at videos taken by bystanders at the scene. Chauvin’s knee was on his neck, clearly, for an extended period of time. It was difficult to watch. I looked at the training slide showing the officer’s knee on the person’s shoulder. What Chavin did was not like the training slide. I have trouble believing anything else a person says if they take that position.
If an officer puts his knee on the throat of a healthy person not on drugs, that person may not be asphyxiated by that restraint. A person in ill health on illicit drugs may be asphyxiated by the same restraint. Is the officer still not responsible?
I am convinced the people arguing Chauvin was innocent are entirely motivated by politics. Sadly, so were the people convinced he was guilty prior to the trail. Again, the videos taken at the scene were very prejudicial. After seeing those, I could not have been an impartial juror.
It wasn’t the throat, it was the side of the neck (which is a big difference); according to the autopsy, the cause of death was not asphyxiation (it was a heart attack); and I think you’re being harsh on Coleman Hughes to suggest that he is “entirely motivated by politics”.
You are correct that the proper word is “neck” not “throat.” The coroner’s report found that “it was a homicide due to “cardiopulmonary arrest” from “law enforcement subdual, restraint, and neck compression.” So the coroner concluded the heart attack was caused by the knee on the neck. In other words asphyxiation, the deprivation of oxygen, caused the heart attack.
The case is so immersed in racial politics, I doubt true objectivity is possible anymore.
Well no, the autopsy did *not* say that asphyxiation caused the heart attack. Coleman Hughes analyses all this in detail and with clarity. People should read it.
Do read Coleman Hughes’ article, where this is explained. The coroner is quite explicit that the heart attack was an unforeseen consequence of the stress of the altercation enabled by Floyd’s heart issues and intoxication, not something that Chauvin should have predicted as a likely consequence of his actions.
Abstracting from the specifics of this particular case: it’s almost certain that the stress of being arrested has (somewhere, sometime) caused people to die of a heart attack. Should the police stop arresting people, then? No, they should have procedures that make arrest as safe for all involved people as possible, and follow them, and the case that Chauvin broke those procedures to a degree that makes him guilty of murder is apparently not very strong.
As you might be aware, pressure over the carotid sinus (in the side of the neck) can cause profound bradycardia or even asystole. People have died as a result of asphyxiation games long before they would have died from asphyxia, or from someone manhandling their neck even without any significant attempt to, or the intention of, strangling them. I do not write that to exculpate Chauvin, but to point out that any official restraint procedure involving a knee on the neck is inherently dangerous.
I disagree with you, Emily, that one has to be motivated by politics (which I assume is a polite way of using the “R” word) to suggest Chauvin might be innocent. I do not know whether he is or not, but given the horrible history of race relations in America I would have no confidence in the fairness of his trial. There was enormous pressure from the expectation that he must be convicted. You think the deaths and the damage caused by the subsequent riots were bad? Imagine what it would have been like if had been exonerated. The exclusion of evidence, the half-hearted defense could be seen as pointing to an intention to sacrifice Chauvin for the greater good. An amoral person might even justify that, but I don’t think any of us here would do that.
We’ve had a number of high profile criminal justice cases recently that suggest to me that our justice system is terribly unfair to defendents. Overcharging, jurisdiction shopping, biased judging, political prosecutions, weak and biased jurors, evidence withholding, and official thumbs on the scale for the system: it all stinks of corruption. This case may be rife with many of these perversions. My faith in the system has been seriously damaged and I now understand why groups of Americans who have been subjected to the system find it to be incredibly unfair. It is.
It is worth reading the comments to the FP article even though they have been turned off. I do think Mr. Balko makes good points.
As to whether the jury felt intimidated (or terrified as Jerry suggests) into convicting, I cited a video of an interview some of the jurors gave with Don Lemon (then of CNN) that gave me the impression that they were. A commenter named Ann P posted a link to a video of the interview and accused me of dishonesty in interpreting it that way. The video I saw — I can’t remember where now and can’t find it — was longer than what Ann P posted. I stand on my honest view that the jurors knew they had to convict going in and were fearful of what would happen to Minneapolis if they acquitted. I agreed that the “lightbulb moment” was decisive in the verdict. The jurors were not unanimous up to that moment in the arrest that Officer Chauvin had applied illegal force to Mr. Floyd. (I should point out that in Canada, what is said in the jury room must by law stay in the jury room and never be divulged. It’s a bit of a culture shock to hear jurors giving interviews. In Canada we have no idea how any jury comes to a verdict and can never second-guess them. Appeal courts can disallow acquittals though and order a new trial. If we think a jury was biased in either direction, it’s unfair to say so because the jurors can’t respond in their defence.)
Emily asks at #5 a good question about responsibility. What had to be determined here was not responsibility but culpability. The medical evidence is that Mr. Floyd died at Mr. Chauvin’s hands and not of a spontaneous heart attack or other natural event that would, at that moment, have felled him no matter what the police did. The (ex-)officer was therefore causally responsible, just as if he had shot him. But culpable as in guilty of a crime?
There are two principles at cross-purposes here that I think I can speak to from a medical perspective:
One is the “thin-skull” rule, aka, “The assailant [here we are referring to a person applying unlawful force, as in an assault] takes his victim as he finds him.” If the victim dies, surprisingly in the view of the assailant, from unlawful force that ought not in his opinion to have killed a healthy person, the assailant will be surprised to be convicted of manslaughter* but that’s what the thin-skull rule means.
The other principle is to be the architect of your own misfortune. If, because of drug intoxication, a suspect requires escalating lawful force before he can be subdued and, because of heart disease, he suffers unexpected cardiac arrest during the lawful force, that doesn’t in itself make the force unlawful. Police who apply lawful force have to be sensitive to the likely effects of lawful force and determine if the force remains necessary and appropriate, i.e., still legal. Some lawful force can of course be predicted to be lethal, such as gunshot. The officer would not be culpable if the shooting was justified. (For the police, this is a terrible conundrum. A burly meth-intoxicated suspect may require enormous force to subdue. If he dies in the process, the cops will get pilloried. It’s really easy to empathize with Mr. Chauvin in this light, at least while Mr. Floyd was still breathing.)
Finally, there are two kinds of asphyxia relevant here. (There are others but let’s confine it to the case.) One is the kind where, “If you can talk you can breathe” really is true. In complete upper airway obstruction you can neither talk nor breathe, hence the prompt, “Can you talk?” before you do a Heimlich manoeuvre for a person in sudden distress. People who die of upper airway obstruction leave behind signatures that the pathologist can find, and there is often evidence of the cause of the obstruction itself, such as a fractured larynx or hyoid bone in strangulation. Mr. Floyd didn’t have that.
The other type of asphyxia is what Dr. Tobin, the pulmonary expert, said he did have: restriction (in this case by the position and force of subdual) of the excursion of the ribs and diaphragm that allow the lungs to be ventilated adequately to support life. (It is easy for laypeople to underestimate how important the expansion of the rib cage is to maintaining air flow.) In this type of asphyxia, (inadequate) air movement is happening right to the last breath and the person may be able to talk or make sounds until he loses consciousness. Cardiac arrest might occur at any time in the process. Neck compression isn’t necessary for this type of asphyxia to kill.
It is ironic and unfortunate for Mr. Floyd (and the police) that he spent so much time protesting that he couldn’t breathe early in the arrest only to actually stop breathing later. This is why it is important not to let his conduct early on colour the judgement about the legality of the terminal force (which was for the jury to decide, not me.)
——————-
* I’m using manslaughter as we define it in Canada. It seems the state of Minnesota uses different degrees of murder which I don’t want to make mistakes about.
I’m only now (6/24) getting to this, but your comments, Leslie, are the least dispassionate I’ve read on this feed. I appreciate that you’ve left politics and emotion aside. I read Coleman Hughes’ and Balko’s articles. Whoopty doo. Are either of those authors coming at this without an agenda? I’ve no way of knowing. I’ve seen what I believe to be ALL of the videos. Ultimately, for me, it all boils down to those last several minutes which I am sickened by. To call the bystanders on the sidewalk “threatening” is laughable. The cold indifference that chauvin displayed with the unresponsive body laying prone on the street is despicable. Yes, Floyd was big and loud and “higher than a kite” but, threatening? I don’t see it. I can’t speak to the law… The crimes that may or may not have been committed… I don’t condone the criminal behavior that followed George Floyd’s death, but I’m not surprised by the response that erupted. My own apartment building was smashed and graffitied during those riots, by the way. What I can’t get over is the amount of time and energy Chauvin spent focusing on the bystanders when the man in his charge was dying. Call it manslaughter. Call it whatever you want. That cop needed to be pulled off the force (in my opinion).
Most of this was known and reported at the time in conservative outlets. To discuss it, however, made you a MAGA racist. Even now, only black people are allowed to question whether Chauvin was guilty and whether Chauvin had a fair trial (which are, of course, separate questions).
Off topic but, everyone’s favourite pop-skeptic has finally done a video on the Cass report:
https://www.youtube.com/watch?v=zI57lFn_vWk
Whats her take? “I haven’t read it, it’s too long. But here’s some people who claim they did and they are telling me what to think so now I can tell you what to think”.
I can assure you I am not motivated by politics in this instance. As for arguing for his innocence, the point is that the argument is that his guilt was not proved, in a fair trial, ‘beyond reasonable doubt’, hence he remains innocent. That is not the same as arguing Chauvin was innocent.
Please be aware of the limitation on comments per site: it should be in the Roolz. You’ve just made three comments on a 14-comment thread, most of which say the same thing. I’ve approved them all, but didn’t get to them while I was sleeping. Thanks!
Sorry about the similarity between two of them, I had a glitch in the first one and it didn’t show up, so I rewrote it a little and posted again.
Also, I will reread the Roolz, I hadn’t realized that responding to different people in a comment thread could be problematic.
Also sorry about the delay in responding here, I still don’t seem to get email notifications of replies even though I have ticked the box.
All of the arguments valid or not still do not alter the fact that Mr. G. Floyd was the master of his own destiny. If he had obeyed the arresting police officers instructions right from the first approach and “quietly “ entered the police car there is a chance that he could have still been alive today.
Resisting arrest is stupid especially resisting police officers armed with deadly weapons. Resist or question the arrest when at the Police Station accompanied by your legal representative.
“If he had obeyed the arresting police officers instructions”… that’s still at least Step 3 in Mr. Floyd’s chain of bad decisions, which includes taking drugs and trying to pay with counterfeit bills. Just don’t do that shit, it’s not that hard.
That said, yes, if anyone were really interested in saving black lives from police violence, they should be screaming from the rooftops, “Don’t resist when the police try to arrest you! Stay civil, and if they mistreat you, let your lawyer handle it afterward!”
Anyone knows how to choke someone and applying pressure on the back of the neck is not a choke hold. Quite clear it is. Pressure has to be applied to the front of the neck. Plain and simple. Alleged 90lbs applied to the back of George’s neck for 8 min 29 seconds will leave considerable bruising and there was none. Conclusion clear as day. 11ng fentanyl kills just about anything. No arguments there. Foam in George’s mouth or pulmonary edema greatly restricts oxygen levels in his brain. George would have been a candidate for triple bypass surgery with his heart arteries blocked 90%, 70%, and 70%. Enlarged heart then he gets into a wrestling match with police office thus explaining why Dr Baker said complicating law enforcement subdual. He could not breathe before he got into the police car. Keith Ellison was a community activist in his past which is code word for race baiter so you know the trial will be as fare as Nazi’s trying a Jew for a crime. A pathologist can only declare a cause of death of positional asphyxia if all other factors are excluded so a man having a drug induced stupor and 11ng fentanyl in his blood accompanied by severe heart disease in his autopsy absolutely excludes George was killed by positional asphyxia and Dr Tobin probably knew that. Dr Tobin’s video clearly shows better than the original video that George was not being choked. This was not an Eric Garner situation where the video clearly shows a choke hold and the autopsy found bruising to the front of the neck with far less pressure. This was mob justice and if the judge said there would be rioting with an innocent verdict, that alone should be a mistrial and there were quite a few things that should have declared a mistrial like the police chief lying on the witness stand, refusing to hear police manual evidence, announcing a civil judgement during trial, police barricades, pre-trial publicity the one high profile politician saying riot on the streets if there is an innocence verdict, and the list goes on and on. You hold the drug addict down past the time they are unresponsive because they can revive suddenly with explosive energy and I seen this in person with someone I called the police on because they went unresponsive, got up and ran down the street. Fortunately they got arrested 10 minutes later and went to the hospital in an ambulance. These cops were sacrificed on an altar to cop haters. I could say more but this should be enough.
One more comment. The video of George dying is highly misleading for those with a bias. The front of his neck never touched the ground so you know he was not choked. George even lifted Derek Chauvin’s knee and there were no physical findings that prove Derek Chauvin had his knee on George’s neck. There was no pressure applied to the middle of George’s torso so you know he was able to breathe. There is misleading video though. What an enormous miscarriage of justice.
I still remain in the camp of guilty of 2nd degree murder. The charge, as I understand it, does not require intent – it does require that a felony be committed during the course.
Floyd was in their charge, and Chauvin was responsible for taking care of Floyd and failed to do so once Floyd became unconscious. Dr. Tobin’s testimony was compelling and convinced me that Floyd’s respiratory rate was normal, even under the influence of fentanyl, and that based on the carbon dioxide levels found, Floyd had stopped breathing, and remained on the ground for 3-4 minutes, without those in charge of his well being changing tactics i.e. flipping him on his side.
Tobin’s testimony: 9 minutes
I’ll state again that the officers held George down because when there are opiates involved, the criminal can suddenly revive from a comatose state so the officers were protecting George from further harm and to suggest a man with foam in his mouth was going to survive if the restraint was removed is really really, giving the druggy the great benefit of the misguided doubt. It only takes twenty seconds to kill someone by asphyxia and it was something like six minutes when George went unresponsive. Due to health problems, that’s why Eric Garner died after 17 seconds on the video of his death instead of twenty seconds. The police manual said hold the victim until the ambulance arrives so Chauvin did that but the manual doesn’t say in that procedure what to do if the ambulance driver takes forever to get there. The third degree charge was not applicable since the officer could see the person he was restraining or allegedly killing, 2nd degree manslaughter was inappropriate because there was no assault occurring, and the other charge was not applicable either. Imagine if the officers tasered him or beat him and the public response that would have followed. They probably did not do that because they knew he was so high, no corrective pain would get George’s compliance. George killed himself when he took the fentanyl pill that was on video for one second when he was first arrested.
Everything that happened that day was the result of Mr. Floyd’s decisions and actions.
Obviously, he might have chosen to not try to pass counterfeit bills. Nobody forced him to take all those drugs, either.
If Mr. Floyd was aware of his own health issues, he surely knew that resisting arrest posed health risks.
The argument has been made that once the police decided to take him into custody, they became responsible for any and all health issues he had. If that is to be the case, then they probably need to give every suspect a complete physical before arresting them. It does not seem a viable option.
“I have a bad heart, so I can rob people with impunity. They dare not arrest me!”
Just the idea that the jurors felt that they and their families faced serious risk of violence should they acquit tells me the trial was tainted.