Ignoring race at its peril in the Derek Chauvin trial

Derek Chauvin’s defense has been dealing the race card all throughout the trial, but prosecutors should not let them get away with it. Chauvin, a former Minneapolis police officer who pressed his knee into George Floyd’s neck for 9 minutes and 29 seconds on May 25, 2020, is on trial for murder in the second degree, murder in the third degree and second degree manslaughter in the death of Floyd. Chauvin is white. Floyd was Black.

On Tuesday, Chauvin’s attorney, Eric Nelson, began the defense’s case by focusing on Floyd’s drug use and criminal history. He showed jurors police body camera footage from a May 2019 traffic stop involving Floyd. In the video, one can see Floyd in the front passenger seat being told several times by Officer Scott Creighton to put his hands on the dashboard. Floyd does not put his hands on the dashboard and Creighton pulls his gun on Floyd. Called as a defense witness, Creighton testified that Floyd was incoherent. Nelson also presented then-paramedic Michelle Moseng, who administered aid to Floyd that day. Moseng testified that Floyd told her that he had been taking multiple opioids about every 20 minutes prior to being arrested because he was addicted. Nelson also recalled Nicole Mackenzie, a Minneapolis police training officer, to speak about “excited delirium,” a condition that Mackenzie testified can be found in one who engages in illicit drug use. Mackenzie testified that someone suffering from excited delirium might be incoherent, exhibit extraordinary strength, or suddenly snap.

Attempting to depict Floyd as a drugged-out criminal who exhibited superhuman strength taps into deeply rooted stereotypes about Black men as dangerous, violent criminals. Professor Paul Butler notes that this strategy is not new and was used in 1992 by four white Los Angeles police officers charged in state court with assaulting Rodney King, a Black man. At that trial, retired Los Angeles police instructor Edgar Oglesby testified that the four officers justifiably thought King was high on PCP when King did not respond to their orders, looked at the officers with a blank stare and was speaking unintelligibly. The officers claimed that when they tried to take King into custody, King threw one officer off his back and did not seem phased by baton blows or a shot from an officer’s stun gun. Oglesby testified that this behavior reflected the “superhuman strength” often shown by PCP users. Even though no PCP was found in King’s system, the officers were acquitted.

While relying on the Black-as-criminal stereotype may have worked in the past, it is not clear whether it will work this time. Floyd’s death led thousands of people to demonstrate, demanding police accountability and racial justice. Individuals from all walks of life saw Floyd’s death as an example of systemic racism in policing gone amok.

The prosecution in Chauvin’s case, however, cannot simply hope that in light of the racial reckoning following Floyd’s death, things will be different this time. It also should not ignore the racial implications of this case. We need only look to the murder trial of George Zimmerman to see how the prosecution in that case ignored race to its peril.

The shooting of Trayvon Martin, an unarmed Black teenager, by George Zimmerman led to widespread protests at the failure of the police to arrest Zimmerman immediately after the shooting in 2012. Thousands of people held candlelight vigils to demand Zimmerman’s arrest. The belief that Zimmerman had racially profiled Martin and that racial bias influenced the initial decision not to arrest Zimmerman animated the protests. Following the public demands for justice, Zimmerman was arrested and charged with second-degree murder.

Even though the initial failure to arrest Zimmerman focused the nation’s attention on race and the criminal justice system, there was little talk of race at Zimmerman’s murder trial in 2013. The judge ruled that the prosecution could say Zimmerman profiled Martin but could not use the term “racial profiling” to describe Zimmerman’s act of following Martin and calling 911 to report his suspicion that Martin looked suspicious and was probably on drugs. The prosecution argued its case without any explicit mention of race. During the rebuttal closing argument, a member of the prosecution team told the jury, “this case is not about race. It’s about right and wrong.” Zimmerman’s defense team too maintained that the case had nothing to do with race. Yet, at the same time the defense was claiming race was irrelevant, they called a white woman who lived in the neighborhood to testify about hiding in fear with her children in an upstairs closet while her home was being burglarized by two Black male youths. Even though Martin had nothing to do with the burglary of this woman’s home, the defense used this witness to signal to the jurors that reasonable people fear young Black males and that Zimmerman’s fear of Martin was reasonable. In the end, Zimmerman was acquitted.

The prosecution in the Chauvin case cannot afford to ignore race. Research on implicit racial bias suggests that making race salient — making jurors aware of race— encourages jurors to treat Black and white individuals more fairly. The defense has tried to paint Floyd as a threat by appealing to racial stereotypes about Black men as violent, drugged out criminals. During closing arguments next week, the prosecution should remind jurors that they should decide the case on its facts and not on racial stereotypes. If the prosecution chooses to ignore race, it will do so at its peril.

Cynthia Lee is the Edward F. Howrey professor of law at the George Washington University Law School and the author of “Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom.”