The murder conviction of former Minneapolis police officer Derek Chauvin for the recorded and widely disseminated slaying of George Floyd has removed the long and wrongly held courtroom presumption that an officer’s use of deadly force was appropriate, Maryland prosecuting and defense attorneys said Wednesday.
This “paradigm shift” in society’s mindset about officers inures to the prosecution’s benefit in police brutality cases because jurors will be less inclined to give police that benefit of the doubt which the prosecutor found unreasonable in deciding to bring the case, said Montgomery County State’s Attorney John McCarthy.
“The presumption that favored the police is no longer there anymore,” McCarthy said.
“We as a nation are more open to the fair evaluation of the conduct of police,” he added. “I think it will be easier for us to hold police accountable if they violate the law.”
Chauvin’s prosecution rested largely on the damning bystander video of Floyd gasping “I can’t breathe” as the officer pressed his knee on or close to Floyd’s neck for what the prosecution said was a fatal 9 1/2 minutes on May 25.
Floyd’s death touched off nationwide protests against police brutality and the paucity of prosecutions — much less convictions — of officers, particularly in cases where the alleged victim was Black.
Criminal defense attorney Bruce L. Marcus said Floyd’s slaying, the video, the protests and Chauvin’s conviction have caused “a reevaluation of long held and traditional views” of deference toward police.
“The change in the last three to four months is palpable and visceral,” said Marcus, of MarcusBonsib LLC in Greenbelt. “There is no way that anyone can see the recording and not be shaken by it.”
Ironically, the wide dissemination of the video of Floyd’s slaying and its critical use
at trial could actually help police officers charged with using excessive force if their alleged violence was not recorded, Marcus said.
Following Chauvin’s trial, jurors in future police brutality cases might expect the prosecution to always have video evidence of the officers’ use of force and vote to acquit if none is presented, Marcus said.
He likened this need for video evidence to the so-called “CSI-effect” in which jurors expect and often require prosecutors to present DNA and other forensic evidence to prove guilt beyond a reasonable doubt. The effect derives from jurors’ exposure to television crime dramas that center on forensic evidence, such as “CSI: Crime Scene Investigation.”
In that vein, the absence of video evidence — so crucial to Chauvin’s prosecution – enables defense counsel to ask at trial, “Where is it?” Marcus said.
He added that the increasing use of body cameras by Maryland police will reduce the instances in which police actions are not caught on video.
In such cases, the prosecution will urge jurors to believe their eyes while defense attorneys counter that the video only tells part of the story, Marcus said.
That defense did not work for Chauvin, whom the Minneapolis jury Tuesday found guilty of second-degree unintentional murder, third-degree murder and second-degree manslaughter.
But former defense attorney Jose F. Anderson, a University of Baltimore School of Law professor, cautioned against viewing Chauvin’s case as marking a sea change in the prosecution, defense or conviction of police officers accused of excessive force.
“You have to be careful about measuring all cases against one case in Minnesota,” said Anderson, who teaches criminal procedure, “Symbolically, it’s very important, but ease case must rise or fall on its own merits.”
Howard County State’s Attorney Rich H. Gibson Jr. said the goal of jury selection in a criminal proceeding remains, as it always has been, to impanel 12 fair-minded jurors who do not bring their biases into the courtroom. However, the task has been complicated by Floyd’s death and the rightful protests and conviction that followed, Gibson added.
“It is undoubtedly today, in this moment in time, more difficult to find 12 people who have no opinion about police, for or against,” Gibson said. “All you want is a fair process.”
McCarthy, the Montgomery County prosecutor, said Floyd’s death and the national attention it brought to Chauvin’s prosecution and conviction should send a warning to abusive police officers and caution to prosecutors amid public protests when police use deadly force.
“The collective experience of our country is going to change the way we assess the use of force going forward,” McCarthy said.
“You (police) are not going to get a free pass and there is not going to be the presumption that the force you used was appropriate,” he added. “At the end of the day, the jury speaks. The community that is Maryland, the community that is Montgomery County is changed.”
Meanwhile, prosecutors must continue to be “driven by the facts and the evidence” in bringing these emotionally charged police brutality cases, McCarthy said.
“There is still due process,” he added. “There is still the law.”