Does the Floyd Videotape Prove Derek Chauvin's Guilt? | Opinion

In his opening argument for the state in the trial of former Minneapolis police officer Derek Chauvin, prosecutor Jerry Blackwell featured the entire nine-minute cell phone video of Chauvin keeping George Floyd subdued even after he was unconscious and probably dead. It was the most damning piece of evidence since the video in the Rodney King case back in 1991. No reasonable person watching that video could justify what Chauvin did—certainly not during the final several minutes when Floyd, incapable of offering resistance, cried for his mother and said he couldn't breathe. No one watching that hellish video will ever forget it. Based on the video alone, Chauvin deserved to be fired, as did the police officers who stood by and did nothing to prevent Floyd's unnecessary death.

But the trial being conducted in the Minneapolis courtroom is not about morality, politics or even ultimate justice. It is only about whether the state can prove beyond a reasonable doubt all the elements of second-degree murder, third-degree murder and second-degree manslaughter—the charges presented to the jury. The videotape will be the most important piece of evidence, as the prosecutor reminded jurors when he asked them to judge what they saw with their own eyes. But the defense will ask the jury to consider facts beyond the videotape: what happened before the video began, what happened during the video but outside of its view and what happened after the video ended. They will also offer a somewhat different interpretation of what is on the video itself.

The defense will try to show that when first arrested, Floyd tried to resist, swallowed an illegal drug to prevent the police from seizing it and refused to follow the orders of police officers. They will also prove that Floyd shouted that he could not breathe well before Chauvin pinned him to the ground. The defense will claim that because of acts not caught on the video, the officers were justified in handcuffing Floyd and placing him face down on the ground.

The defense will also claim that before and during the period shown on the video, an angry crowd was beginning to gather to protest what the police were doing to Floyd. They will argue that the protests generated fear in the minds of the police officers, including Chauvin, and distracted them from the impact of Chauvin's knee on Floyd's neck. They also dispute the prosecution's claim that the video conclusively demonstrates that Chauvin had his knee on Floyd's neck, thus obstructing his breathing. They will argue that a closer look at the video suggests that Chauvin's knees were on Floyd's shoulders and that there was no obstruction of his breathing.

George Floyd
A picture of George Floyd hangs on a fence barrier that surrounds the Hennepin County Government Center as the trial of former Minneapolis police officer Derek Chauvin continues on March 30, 2021 in Minneapolis, Minnesota. Chauvin is accused of murder in the death of George Floyd. Security is heightened in the city in an effort to prevent a repeat of violence that occurred in Minneapolis and major cities around the world following Floyd's death on May 25, 2020. Scott Olson/Getty Images

The defense will focus on the presence of large quantities of life-threatening drugs in Floyd's body, coupled with preexisting medical conditions that may have contributed to his demise.

For the prosecution, this case is all about the video—as well it should be, because of the power of putting the jurors at the scene and encouraging them to judge for themselves. For the defense, this case will largely be about what is not on the video: what the jurors cannot see for themselves and must instead hear from experts, eyewitnesses and others, including possibly the defendant himself. As the defense attorney told the jurors, and as the judge will remind them in his instructions, the burden of proof is on the prosecution, and its burden of proving every element beyond a reasonable doubt necessarily requires them to go beyond the video and consider the totality of the evidence presented by both sides.

We live in an age of pervasive cell phone cameras, which have changed the nature of evidence in many criminal cases. It is shocking that Chauvin and the other officers at the scene did not seem to be deterred or even influenced by the presence of protestors videoing the entire encounter from different perspectives and angles. That they could believe that videotapes of their actions and inactions would not damn them tells us something about the attitudes of some police officers who consider themselves above the law.

It remains to be seen whether jurors will begin and end their inquiry with the videotape. Recall that a state jury in the first Rodney King case failed to convict in the face of comparably damning video. (A federal jury later did convict.) This jury is more diverse and the times have changed dramatically since 1991.

The lawyer for the Floyd family has called this trial a "referendum" on racial justice in America. He is wrong. That referendum has already occurred, not only in America but around the world. The video tape has proved, in the minds of most reasonable people, that racial justice is far from being achieved. What remains to be determined is whether the video, considered in the full context of all the evidence, will prove beyond a reasonable doubt that Derek Chauvin is guilty of second-degree murder, third-degree murder, second-degree manslaughter or no crime at all. The answer to these narrow and somewhat technical legal questions is far less clear than the answer to the broad moral and political questions of racial justice in America.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.