The question that will decide the Chauvin case

The defense rests.

The trial of former Minneapolis police officer Derek Chauvin for his role in the death of George Floyd last summer has nearly reached its end. The prosecution is over; the defense is complete. Early next week, each side will present its closing arguments, and the jurors will be left to their task.

What will determine their verdict? We may never know the course of discussion in the privacy of the jury room — though jurors in high-profile cases sometimes do talk — but my guess is the decision will turn on the definition of appropriate police use of force.

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Much of this trial has centered on testimony of medical experts exploring whether Chauvin directly caused Floyd's death. The autopsy revealed Floyd was living with heart disease and had illicit drugs in his system when he was killed. That allowed the defense team to argue he "died of a cardiac arrhythmia that occurred as a result of hypertension, his coronary disease, the ingestion of methamphetamine and fentanyl, and the adrenaline flowing through his body, all of which acted to further compromise an already compromised heart." One defense expert who testified Wednesday, a former chief medical examiner, told jurors the "amount of force that was applied to Mr. Floyd was less than enough to bruise him," declaring — contrary to the "homicide" label from the county medical examiner's office — Floyd's cause of death is "undetermined."

That's a contention, I suspect, the prosecution has successfully dismantled. The hurdle was quite low: Prosecutors didn't need to claim Floyd's medical conditions and drug use were irrelevant. They had only to argue Floyd wouldn't be dead without Chauvin's knee on his neck and back for the better part of 10 minutes. "Because of the position that he was subjected to," testified cardiologist Jonathan Rich, Floyd's heart "did not have enough oxygen," and this — not "a primary cardiac event [or] a drug overdose" — is what killed him. Perhaps even more compelling was the testimony of pulmonologist Martin Tobin, who identified for the jury "the moment the life goes out of [Floyd's] body." The "most damaging part of Dr. Tobin's account," wrote attorney Andrew McCarthy at National Review, "may be his conclusion that even a perfectly healthy person would have had pulmonary failure under the physical restraint Floyd endured."

So let's say the jurors are convinced about the cause of death, as I anticipate they will be: Absent Chauvin's knee, Floyd would be alive today. With that conclusion drawn, the crucial question becomes whether Chauvin was justified in using the restraint he chose. That is: Was his use of force appropriate or excessive for the circumstance?

It was always going to come to this. Our society "consider[s] it justified for police officers, unlike ordinary citizens, to inflict violence on individuals — with fists, batons, pepper spray, tasers, guns — up to the point of death, so long as the officer embodies valid legal authority and the amount of force is proportionate to what is needed to get the individual to submit to that authority," Harvard law professor Jeannie Suk Gersen explained at The New Yorker last week. "So, when police actions result in a person's death, it is not necessarily a criminal homicide; that depends on whether the police are found to have used an excess of force."

Here again each team of lawyers relied on expert witnesses. A former police trainer testified for the defense that Chauvin was justified because Floyd resisted arrest, and another defense witness, the former chief medical examiner, said Chauvin's move isn't properly labeled "deadly force." Moreover, Chauvin's lawyer said, he acted in line with departmental policies, doing "exactly what he had been trained to do over his 19-year career." How could his use of force be excessive or deadly if it was precisely what the Minneapolis Police Department prescribed as a "[n]on-deadly force option"?

Against this the prosecution marshalled Minneapolis Police Chief Medaria Arradondo, who said Chauvin's restraint "is not part of our training" and "in no way, shape, or form is anything that is by policy." A Minneapolis police lieutenant called it "totally unnecessary." A use-of-force expert from the Los Angeles Police Department deemed the hold excessive and a violation of Chauvin's responsibility as an officer. No "reasonable officer," said another expert, Seth Stoughton, "would have believed [what Chauvin did] was an appropriate, acceptable, or reasonable use of force."

I think Stoughton is absolutely right and the defense, by and large, is wrong. But there's one point on which the defense is on solid ground and the prosecution's case is shaky: Arradondo's claim that what Chauvin did isn't MPD policy. The department has since changed its rules, so it's not part of their training now, but last summer the MPD specifically permitted neck restraints applied via the officer's "leg."

This is what makes the jury's task legitimately difficult, despite how straightforward the video seemed. What Chauvin did was indefensible; in moral terms, I think "murder" is the right word. But that doesn't necessarily mean it's the right legal term given that departmental policy and the details of Minnesota law.

That policy means the use-of-force question is legitimately open in this legal sense, and the legal sense is where the jury's decision must be confined. Moral excess may not be legal excess, not because the moral excess isn't real and serious but because the legal reform we need is far bigger than any one man or death. Chauvin may be acquitted, but if he is, that acquittal is a guilty verdict for the police department policy that made it possible.