George Floyd Derek Chauvin’s defense failed to “emotionally distance” George Floyd from the jury. And I believe that failure was a significant contributor to Chauvin being found verdict. The defense could not emotionally distance George Floyd from the jury for three fundamental reasons. First, the bystanders who saw Chauvin’s knee on Floyd’s neck and heard him cry out for help recognized his humanity. The bystanders on the gruesome scene did not know George Floyd, but his humanity impacted them. And because the defense could not distance the bystanders from Floyd, their testimony, along with the videotape, prevented the defense from emotionally distancing the jurors. Second, George Floyd’s girlfriend gave powerful testimony about their struggle with opioid addiction. Even though opioid addiction has affected a more diverse group of people than was once true, some people still see addiction as an individual’s moral failing. Floyd’s girlfriend humanized their addiction and prevented it from being used to distance the jury from Floyd. Third, there were four blacks and two mixed-race members on the twelve-person jury. Jury experts have found that the presence of non-white jurors minimizes unfair racial distinctions. Also, three white jurors in their twenties might have had moderate racial views.
Travon Martin How juries respond to these fundamental reasons is also seen in the deadly excessive force trials such as George Zimmerman’s trial for killing sixteen-year-old Trayvon Martin. Although Zimmerman was a member of a neighborhood watch program and not a policeman, he stalked and killed Trayvon under the color of law. Because several houses in Zimmerman’s complex had been burglarized, possibly by blacks, Zimmerman became suspicious when he saw Trayvon walking back from the store to his father’s home. While Zimmerman followed Trayvon, he called the police to report a suspicious person. The police dispatcher advised Zimmerman that the police were on the way and warned Zimmerman to stop following Trayvon. Zimmerman, however, continued to follow Trayvon. Zimmerman claimed that Trayvon had jumped him from bushes and knocked him to the ground. As the two fought on the ground, Zimmerman claimed Trayvon, who weighed sixty pounds less than Zimmerman, began pounding his head on a concrete walkway and reached for Zimmerman’s holstered gun. Zimmerman alleged that Trayvon shouted that he was going to kill Zimmerman and engaged in a struggle for the pistol. Zimmerman claimed that he had shot Trayvon in self-defense.
Initially, the police and the prosecutors accepted Zimmerman’s account of what happened and failed to either thoroughly interrogate or arrest him. As the shooting gained notoriety, community demonstrations and pressure compelled the prosecutors to arrest and indict Zimmerman. Although the prosecutors were considered highly competent and experienced, their presentation of the case raised serious questions about their inclination to prosecute.
The Zimmerman prosecutors mishandled the same three issues the Chauvin prosecutors employed to secure a conviction. First, the Zimmerman prosecutors did not negate the emotional distancing tactics used by the defense. Throughout the trial, the defense attorneys painted a narrative in which Zimmerman acted to protect his residential community from burglars, at least one of whom was black. Because the prosecutors did not strongly argue against this narrative, it allowed the defense to taint Trayvon as a criminal and thug. Second, the prosecutors failed to address critical elements of the case: why would Trayvon attack Zimmerman, and how did Trayvon know Zimmerman carried a gun on his back. Trayvon talked on his cell phone to a girl who testified that he feared Zimmerman when he first started following Trayvon. It did not make sense for Trayvon to attack someone from whom he was trying to hide. The prosecutor’s presentation obscured the testimony that Trayvon feared Zimmerman. More importantly, Zimmerman wore his gun on his back. If, as he testified, Trayvon was on top of him, Trayvon would have been unable to see or grab Zimmerman’s gun. The prosecutors failed to highlight this inconsistency in Zimmerman’s story. Third, the prosecutors did not push for a U.S. African-American jury member on the six-person jury. The only African American was a Puerto Rican who deferred to two white women jurors. These women had family members who were lawyers and advised them about the evidence presented. They used their greater fluency of the evidence to overcome the African American’s predisposition to convict Zimmerman.
There were other problems with how the prosecutors presented their case. Experienced trial lawyers, such as Lisa Bloom, Suspicion Nation, and Honey Howard Rothschild’s A Million Prosecutor Mistakes, have written books on how the prosecutors mishandled the case. They point out that the initial investigation of the shooting was too limited and may have missed essential facts such as whether the photos purporting to show wounds to Zimmerman’s head were valid. Also, the prosecution may have undercut their case by agreeing with the defense to exclude reference to Florida’s “stand your ground” law. That law may have allowed the prosecutors to argue that Trayvon had every right to defend himself from Zimmerman. Finally, the prosecutors did not fully explain the elements that were needed to convict Zimmerman of manslaughter. If they had, the jury might have convicted Zimmerman of manslaughter even if they could not agree on the second-degree murder charge.
Because prosecutors work closely with the police, many have been reluctant to bring charges against police officers. Activists have therefore focused on having police officers charged. But just as prosecutors may not want to charge officers, they may also do less than a stellar job in prosecuting them. The prosecutors in the Chauvin case have provided a partial template of how convict officers charged using excessive force. Although most observers celebrated the conviction of Chauvin, they recognized that convicting one or four officers did not address the systemic failures evident in policing.
Nonetheless, some prosecutors may use the methods used in the Chauvin trial to convict other police officers of unwarranted violence. Of course, the motives and abilities of prosecutors will always affect the outcome. Now, at least, activists will have a standard by which to measure prosecutors. And when they find prosecutors are lacking, activists will have a transparent basis for complaint.
The Zimmerman prosecutors mishandled the same three issues the Chauvin prosecutors employed to secure a conviction. First, the Zimmerman prosecutors did not negate the emotional distancing tactics used by the defense. Throughout the trial, the defense attorneys painted a narrative in which Zimmerman acted to protect his residential community from burglars, at least one of whom was black. Because the prosecutors did not strongly argue against this narrative, it allowed the defense to taint Trayvon as a criminal and thug. Second, the prosecutors failed to address critical elements of the case: why would Trayvon attack Zimmerman, and how did Trayvon know Zimmerman carried a gun on his back. Trayvon talked on his cell phone to a girl who testified that he feared Zimmerman when he first started following Trayvon. It did not make sense for Trayvon to attack someone from whom he was trying to hide. The prosecutor’s presentation obscured the testimony that Trayvon feared Zimmerman. More importantly, Zimmerman wore his gun on his back. If, as he testified, Trayvon was on top of him, Trayvon would have been unable to see or grab Zimmerman’s gun. The prosecutors failed to highlight this inconsistency in Zimmerman’s story. Third, the prosecutors did not push for a U.S. African-American jury member on the six-person jury. The only African American was a Puerto Rican who deferred to two white women jurors. These women had family members who were lawyers and advised them about the evidence presented. They used their greater fluency of the evidence to overcome the African American’s predisposition to convict Zimmerman.
There were other problems with how the prosecutors presented their case. Experienced trial lawyers, such as Lisa Bloom, Suspicion Nation, and Honey Howard Rothschild’s A Million Prosecutor Mistakes, have written books on how the prosecutors mishandled the case. They point out that the initial investigation of the shooting was too limited and may have missed essential facts such as whether the photos purporting to show wounds to Zimmerman’s head were valid. Also, the prosecution may have undercut their case by agreeing with the defense to exclude reference to Florida’s “stand your ground” law. That law may have allowed the prosecutors to argue that Trayvon had every right to defend himself from Zimmerman. Finally, the prosecutors did not fully explain the elements that were needed to convict Zimmerman of manslaughter. If they had, the jury might have convicted Zimmerman of manslaughter even if they could not agree on the second-degree murder charge.
Because prosecutors work closely with the police, many have been reluctant to bring charges against police officers. Activists have therefore focused on having police officers charged. But just as prosecutors may not want to charge officers, they may also do less than a stellar job in prosecuting them. The prosecutors in the Chauvin case have provided a partial template of how convict officers charged using excessive force. Although most observers celebrated the conviction of Chauvin, they recognized that convicting one or four officers did not address the systemic failures evident in policing.
Nonetheless, some prosecutors may use the methods used in the Chauvin trial to convict other police officers of unwarranted violence. Of course, the motives and abilities of prosecutors will always affect the outcome. Now, at least, activists will have a standard by which to measure prosecutors. And when they find prosecutors are lacking, activists will have a transparent basis for complaint.