Welcome to our ongoing coverage of the Minnesota murder trial of Derek Chauvin, over the in-custody death of George Floyd. I am Attorney Andrew Branca for Law of Self Defense, providing guest commentary and analysis of this trial for Legal Insurrection.
Anyone interested in a free podcast version of our daily legal commentary and analysis of the Chauvin trial can access the Law of Self Defense News/Q&A Podcast, available on most every podcast platform, including Pandora, iHeart, Spotify, Apple Podcast, Google Podcast, simple RSS feed, and more.
Today marks a week and a half since the state has begun presenting their case in chief, and they have yet to nail down a key issue in this case—what, exactly, caused Floyd’s death?
We know they don’t believe that Chauvin intentionally killed Floyd, because Chauvin is not charged with an intentional killing—all the various charges against him, including the odd use of the term “murder” preferred by Minnesota, are unintentional killing crimes, at worst (e.g., felony murder, reckless homicide).
They sometimes suggest in passing Floyd was killed asphyxia, lack of oxygen to his tissues, perhaps induced by Chauvin’s knee on Floyd’s neck, or pressure placed on Floyd’s body, or by positional asphyxia or purported failure to place Floyd in the so-called “recovery position.”
The problem with this approach is two-fold. First, it’s impossible to determine with any degree of certainty, much less beyond a reasonable doubt, that any of the physical actions of the officers, including Chauvin’s knee in the absence of any sign of leg trauma, actually caused any degree of asphyxia. One can speculate that cause and effect, but speculation does not get one to proof beyond a reasonable doubt—at least not in the context of an evidence-based alternative explanation for asphyxia.
And that’s the second problem with this approach. That alternative explanation is, of course, Floyd’s three-fold fatal levels of fentanyl. Fentanyl overdose kills by inducing asphyxia, because of the drug’s effect on suppressing respiratory function, as well as inducing foaming in the lungs. And the only person responsible for Floyd’s ingestion of overdose levels of fentanyl is Floyd.
To say, then, that Floyd died of asphyxia—as the state did yesterday through the testimony of emergency room physician Langenfeld—does nothing at all to direct fault to Chauvin or the other officers involved, and away from Floyd, because it is at least as likely—arguably far more likely—that this asphyxiation was the result of Floyd’s own conduct, not the conduct of the officers involved. That doesn’t get us to proof of guilt beyond a reasonable doubt, or anything close to it.
Indeed, unlike Floyd, the officers could have no clear idea of exactly what Floyd had shoved into his mouth an ingested, what drugs he might have taken and still have in his system shortly before contact by police, how frequently and recently Floyd had been using or been “clean,” what Floyd’s tolerance to any given dose of drug might be, what co-morbidities—such as severe hypertension, cardiac disease, and cardiac artery occlusion—Floyd might be suffering from, and other factors that played as decisive a role, or a greater role, in Floyd’s demise than anything any of the officers did in the course of making Floyd’s lawful arrest.
At some point the prosecution is going to have to present evidence of the precise mechanism by which they believe Chauvin killed Floyd, that this purported mechanism of death was not otherwise lawful conduct by Chauvin, and that this purported mechanism of death is proven beyond a reasonable doubt despite the presence of perfectly obvious and evidence-supported alternative explanations for Floyd’s death that place no fault on the officers.
Will that day be today? Will that day ever come? Join us and find out!
As always, we’re live blogging today’s court proceedings over at Legal Insurrection, here:
Attorney Andrew F. Branca
Law of Self Defense LLC
Attorney Andrew F. Branca’s legal practice has specialized exclusively in use-of-force law for thirty years. Andrew provides use-of-force legal consultancy services to attorneys across the country, as well as near-daily use-of-force law insight, expertise, and education to lawyers and non-lawyers alike in the form of blog posts, video, and podcasts, through the Law of Self Defense Membership service. If this kind of content is of interest to you, try out our two-week Membership trial for a mere 99 cents, with a 200% no-question- asked money-back guarantee, here: Law of Self Defense Membership Trial.
[Featured image is a screen capture from video of today’s court proceedings in MN v. Chauvin.]