Chauvin Trial Comes to a Close

4/20/2021

In a final effort to persuade the jury, attorneys for the prosecution and defense delivered closing arguments, and the jury returned the verdict the next day.

CAFE and Vox Media are excited to announce that Joyce Vance will be joining the CAFE Insider podcast as Preet’s co-host. Joyce served as the U.S. Attorney for the Northern District of Alabama during the Obama administration, and she is now a law professor at the University of Alabama School of Law, a frequent contributor for NBC and MSNBC, and a co-host of the #SistersInLaw podcast.

In today’s episode, Preet and Joyce reminisce about their time serving as U.S. Attorneys. Meanwhile, the jury returned a verdict in the Derek Chauvin trial — finding the former police officer guilty on all three counts. Preet and Joyce break down the strength of the closing arguments. 

Preet Bharara:

Hey, folks. Preet here. It’s about 5:40 p.m. on Tuesday, April 20th. And earlier today, this morning, my new co-host on the Insider Podcast, Joyce Vance, and I recorded our first episode together. And we spent a lot of time talking about the summations in the Derek Chauvin case, and when we thought about the relative strengths of the case brought by the prosecution. But as the whole world knows by now, about 30 minutes ago, there was a verdict in the Chauvin case. Unanimous jury found beyond a reasonable doubt that former police officer, Derek Chauvin, was guilty on each of the three counts with which he was charged. Murder in the second degree, murder in the third degree, and manslaughter in the second degree. And I thought I would just react quickly to the verdict. And obviously, I will have more to say about it, and Joyce will have more to say about it, and we’ll have more to say about it together.

Preet Bharara:

First reacting not as a lawyer or a prosecutor, but as an American and as a human being, I feel enormous relief and gratitude that the verdict was reached, and he was guilty on all counts. I think we’ve been in something of a state of suspended animation in this country about what would happen in this case, given the videotape evidence, given the common sense arguments that would be made in favor of conviction. That if this man couldn’t be convicted, then what kind of justice could there be for anyone in this country, black, white or otherwise, but especially if you’re brown or black? There’s no joy in this moment. I know there’s some people who are celebrating, but it’s very hard to be joyful when we had to go through this process to get this result at the hands of the law.

Preet Bharara:

Speaking as a lawyer and a prosecutor, you never know what’s going to happen in the trial. But I’m not overly surprised. As I’ve been saying for the past couple of weeks, the case went in very strong. The evidence was strong. The performances by the prosecutors were strong. And as you’ll hear me say with Joyce, I think the defense lawyer made some missteps, some things that backfired. But at the end of the day, no amount of lawyering necessarily can do the trick. The facts are the facts. And Derek Chauvin shoved his knee into the back of the neck of George Floyd for nine and a half minutes until he was dead. When the news broke a little while ago that there was a verdict, some people were speculating, well, what does that mean? How quick is it?

Preet Bharara:

In my experience, it’s pretty fast verdicts, sometimes they come in more quickly. But this is a big case. The jurors knew that it was a big case that the whole not just nation, but world was watching. And there are three counts, and you had deliberate on each count that took about 10 or 11 hours. There was expert testimony, there was medical testimony. And in my experience, jurors who talk about what they do, they’re pretty methodical. They go through each count, each element of each count, and they deliberate over it and have a discussion about it. That takes time. And here, they did it in about 10 or 11 hours. It’s about three hours and change per count. And they have no questions. As you may know, jurors are allowed to ask questions if there’s some confusion about the legal instructions, or about how they’re supposed to apply the law to the facts, and they had none of those.

Preet Bharara:

So the signal was good, from my perspective, that there would be a guilty verdict. The proceeding where the guilty verdict was rendered was short, somber, most dramatically, and maybe not everyone appreciated that this would happen. At the conclusion of the rendering of the verdict, the judge asked, like judges ask in other cases all around the country, does the state have a motion? And here the state did, and it was to be expected. Having been convicted, Derek Chauvin no longer had the presumption of innocence. He now became a greater risk of flight, because he’s a convicted person. And he was immediately remanded to custody. And depending on what sentence he gets, and depending on what happens with any appeals, which will certainly be filed, he will not be a free man for many years.

Preet Bharara:

He faces respectively on the three counts 40 years, 25 years and 10 years. We’ll see what he gets. I don’t know the reputation of this particular judge on sentencing. There’ll be a lot of discussion and motion practice and briefs. With respect to sentencing, it won’t happen right away. The judge said in court, it’ll take about eight weeks. And there’ll be some arguments back and forth about whether or not there are aggravating factors that should affect the sentence. And then, by the way, the saga is not over for other reasons, either. There were three other officers who were involved in the incident where George Floyd died. They were severed from the trial of Derek Chauvin, but they will be going to trial later in the summer, in August.

Preet Bharara:

Most importantly, separate apart from this case, is the question of what police departments around the country will do. What message will they get? What lessons will they have learned? Lots of people are responsible for the result here. The prosecutors in the case, the judge in the case, who I think presided in a fair and neutral manner, but also the other witnesses. And particular the bystanders, who to a person felt emotional and traumatized by having witnessed the murder of George Floyd. And now we can say, murder of George Floyd. That’s not alleged anymore. I’ve been seeing a lot of people use the phrase that’s commonly used in these circumstances. Finally, there’s been justice for George Floyd. And I’m not sure that’s the right phrase to use, as a member of his family has said.

Preet Bharara:

George Floyd will never come back. George Floyd’s daughter will never have her father to hug and to be around her. So justice for George Floyd kind of misses the mark. Justice for George Floyd would have been a system and instead of police officers, treating him fairly and honorably, and lawfully, and that didn’t happen. And that’s why he’s gone. We do have today is a form of justice, perhaps not for George Floyd. But within our system, justice in the form of accountability, which we don’t see very frequently in circumstances like this. And for what happens next, what comes next for policing and for the country, as I heard Van Jones say a few minutes ago, this is the beginning of something. It’s not the end of something. And that’s important. Now, stay tuned for the show that Joyce Vance and I recorded before the verdict this morning. From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara. And here with me is my very new co-host, Joyce Vance. Joyce, welcome.

Joyce Vance:

Thanks.

Preet Bharara:

That’s all you got to say?

Joyce Vance:

That’s it.

Preet Bharara:

Thanks?

Joyce Vance:

I mean, I’m ready to get down to business-

Preet Bharara:

I though you have to have a speech. Don’t you have a speech?

Joyce Vance:

No. I don’t have a speech. I’m here to talk some serious stuff with you. Well, I thought we were going to discuss penguins, but apparently you’re deciding to thwart my best efforts here. I mean, that seems to be the burning issue here, right? If I’m going to fill Anne’s very large shoes, which seems a little bit daunting, we’re going to have to confront this issue of penguins at some point or another, aren’t we?

Preet Bharara:

Yeah. A lot of people have been asking what your position on penguins is. I don’t know what that means. Is it a binary thing? Pro-penguin, anti-penguin? No one’s anti-penguin, right?

Joyce Vance:

It seems to me that in some of our most important life decisions, we have opinions and views that evolve over time. So I think I’m going to have to undertake some fact finding on the topic of penguins.

Preet Bharara:

Well, there are other animals we can talk about. But first before we do that-

Joyce Vance:

There always are in my house.

Preet Bharara:

In your case, they’re not hypothetical animals, you have your real animals. But before we get to that, I feel like should I do an intro of you? Everyone knows who you are, right? Why don’t we start with this, why don’t we start with your full name, which I think is Joyce Alene Griffith Joyner Kersee Herbert Walker Vance.

Joyce Vance:

Yeah. Thank you.

Preet Bharara:

You got a lot of names, Joyce?

Joyce Vance:

Well, I do because my name is Joyce Alene. And then my maiden name is White. And I actually took my husband’s name when we got married. I’m not really sure what mood I was in that I did that. But now I’m a Vance.

Preet Bharara:

Now you’re a Vance. Can I just call you Joyce?

Joyce Vance:

You can. I think you always have.

Preet Bharara:

There was a lot of speculation in the last week about who would be the new co-host. A number of very smart, insightful people predicted it would be you. One person wrote, well, if someone was the first name that begins with a J, you can call the show PB&J. So should we do that? I don’t think so.

Joyce Vance:

I sort of like it.

Preet Bharara:

Yeah. My favorite guests who was going to be the co-host, other than Sidney Powell, Frank Stallone.

Joyce Vance:

Nicely done.

Preet Bharara:

Would you have been hurt if we went with Frank Stallone?

Joyce Vance:

I think it would have been an impressive podcast and I would have continued to listen.

Preet Bharara:

That is so diplomatic. We don’t have to do diplomacy here.

Joyce Vance:

I wasn’t being diplomatic. I was just being truthful.

Preet Bharara:

I see. So we mentioned how we know each other. So we were both US attorneys. I was in the Southern District of New York. You were in the Northern District of Alabama. I don’t know if you remember this, I presume you do. The President of United States the back then, Barack Obama, announced the intent to nominate both of us on the same day. We were in the first batch of five nominees. Do you remember the date?

Joyce Vance:

I don’t remember the date.

Preet Bharara:

You don’t remember the date?

Joyce Vance:

No. Should I remember the date?

Preet Bharara:

I do because it was kind of a big deal for me. Maybe it was run-of-the-mill-

Joyce Vance:

What was the day?

Preet Bharara:

May 15, 2009.

Joyce Vance:

So I was already in places, the acting. I became the acting-

Preet Bharara:

Because you were from within the office.

Joyce Vance:

April. I was inside of the office. But it was a really big deal. It was a surprisingly big deal.

Preet Bharara:

So do you remember how we met, which might sound odd to people?

Joyce Vance:

I do. I mean, do we have the same memory here? We have a friend in common.

Preet Bharara:

This is embarrassing. We didn’t really prepare this or rehearse this at all. But there is a thing called US Attorney Orientation. Isn’t that how we met?

Joyce Vance:

That’s the first time that we met. But we actually were in touch before then. We have a mutual friend, Leslie Proll, who’s a civil rights lawyer, and she had put us in contact. So I knew who you were before we met.

Preet Bharara:

But then we actually met in DC for US Attorney orient, which I guess people may not realize that even senate confirmed folks, we had an orientation with lots of boring slides and meetings. Did you learn anything from the orientation? No offense to the people who ran it, but I don’t remember learning much.

Joyce Vance:

I’m going to take the Fifth Amendment on that one.

Preet Bharara:

It’s probably wise. All right.

Joyce Vance:

I do you have a great picture, though, I have to say. It’s a picture of the five of us with Eric Holder. And I’m standing, I think two or three steps up on a staircase just so that my head’s not a foot below the rest of you all. People are always surprised that I’m so short, because on TV, TV is the great equalizer where I look just as tall as the rest of you.

Preet Bharara:

In the CAFE Insider picture we put together, obviously, I haven’t seen you in a long time. It’s photoshopped. We’re about the same height.

Joyce Vance:

We are. And I appreciate that.

Preet Bharara:

There’s also a photo that you posted not too long ago of you and me on the White House lawn after having met President Obama when we were both still in office. We said then, do you think like five and a half years from now we’re going to be doing a podcast together? I think I would have said, I don’t know what a podcast is.

Joyce Vance:

It seems like we lived on a whole different universe then. I look at those pictures and we look so young and so happy. It’s sort of pre-Trump era when everything was still a little bit gilded and pretty and we were so naive.

Preet Bharara:

don’t know, Joyce, if it was that day, when we took the picture on the White House lawn, or if it was a different day when we were at the White House, when we were both in office. But I was just reminded last night when I realized we’d be doing our first show together today about something you posted, and it’s your pinned tweet. And I remember this just as clear as if it was yesterday, myself. And you posted this just after Christmas in 2017. You wrote, “The first time President Obama met with his US attorneys. He told us, ‘I appointed you, but you don’t serve me. You serve the American people. And I expect you to act with independence and integrity.'” None of us ever forgot that. At least I didn’t. And what a quaint thought.

Joyce Vance:

It seemed so important at the time, it was for me why I wanted to serve as a US Attorney. And thinking about it down the road, I checked with some of our colleagues. I wanted to make sure that my memory was clear.

Preet Bharara:

You didn’t check with me.

Joyce Vance:

I didn’t check with you, Preet. But apparently I should have. Peter Neronha, who’s now the Attorney General in Rhode Island, told me that he had been so moved that he actually wrote it down on a napkin, which was the only thing he had with him. We were all standing up at the White House. He wanted to make sure he never lost the words. And I felt the same way. I mean, it’s still so trite and sappy to say it, right?

Preet Bharara:

Not to me.

Joyce Vance:

It was such an honor to get to serve. A real big deal.

Preet Bharara:

No. And to be told that you don’t serve him. Which in some ways, I appreciate it at the time, obviously, but not as much as I should have, given how the following president treated the Justice Department, the Attorney General and US attorneys. The idea that the last guy would have said, you don’t serve me, you serve the public, it’s almost unthinkable to hear those words coming out of his mouth. It seems like we are once again back to that principle that US attorneys and the Justice Department and the Attorney General don’t serve the individual president or people in elective office but serve the public. So, hurrah.

Joyce Vance:

It seems like a lot of folks at DOJ, people even who were there during the Trump administration went out of their way to underscore that point, even during tough times. So I think you’re right, we are back.

Preet Bharara:

So we have a lot to talk about with the Derek Chauvin trial. I know you’ve been talking about it a lot on television. You were on a different network from the network I’m on. Am I allowed to say the initials? I guess I can. I miss NBC. So thanks for your commentary. So I know some of what you think about it. But we haven’t really talked in detail. We’re recording this on Tuesday morning. There could be a verdict at any moment. The jury is in deliberations behind closed doors. But yesterday, Monday, saw the prosecution summation, the defense summation and the prosecution rebuttal. And I guess we can talk about the last week of evidence coming in through the lens of the summation. I have a lot of questions for you and wonder what you think.

Preet Bharara:

But I’ll tell you that the thing that got me and made me feel like I got punched in the stomach was in the opening summation of the prosecution, the jury was reminded and all of us watching were reminded of the words that George Floyd used as he was on his way to dying, and the respect with which he interacted with the guy who was going to kill him, Derek Chauvin. And he called him Mr. Officer. And we got pulled out of that car, he thanked Mr. Officer. He pleaded with Mr. Officer. He said, “Mr. Officer, please, I can’t breathe.” And something about that really stung, and I’d forgotten that he had used that phrase. Did you find the summation to be more emotional or clinical or what?

Joyce Vance:

I have found it incredibly hard to not react to this case on a personal level and on an emotional level. Which is really surprising, because I don’t know about you, Preet, but I think something that I do, having been a prosecutor for so long, is that these really difficult and painful situations, I’m sometimes better able to process because I do just have that professional lens, that almost clinical view of the cases. I had that same reaction when he emphasized the Mr. Officer approach. And one of the most effective parts of this first closing argument was making the point that George Floyd was not resisting the officers.

Joyce Vance:

And so [Slasher] went through all of the different things that he had done where he was compliant. They asked him to get out, they put the handcuffs on, they told him to sit down, they told him to walk. And throughout this, George Floyd looked at the badge, respected the badge, and referred to the officer as Mr. Officer. It was, I think, a moment that humanized George Floyd. Humanized is a word that’s been overused this last week. But it is incredibly important for the jury to have the understanding and the belief that George Floyd is a human being who deserves their honest consideration and who deserves justice. And that’s what that part of the opening argument did very effectively.

Preet Bharara:

Yeah. And there were other things like that, that I didn’t fully focus on during the course of the trial, that when woven together in the summation, just really stung. The other example that I’m thinking of is, I can’t remember if this was in the main summation or the rebuttal. I think it was the main summation about the prosecution. And the prosecutor is talking about indifference and this idea of depraved indifference, which is one of the elements of one of the counts. And it talks about the way Derek Chauvin is sitting with his knee pressed on George Floyd’s neck, and you know what he does? He’s kneeling next to the car, and he starts picking rocks out of the tires. I mean, he’s killing a man who has stopped resisting and what is he doing? He’s picking little pebbles and rocks out of the tire.

Joyce Vance:

This was something that the prosecution did really well. Derek Chauvin obviously didn’t testify. So the jury never heard his version of what happened. And the prosecution painted a very effective picture of who he was. That detail I thought was heart stopping.

Preet Bharara:

The other thing they did, I don’t know if they overdid this. Because they must have a better sense of the jury than we do. We don’t even know the identity of the jurors, just for the general makeup of the jury, is the prosecutors said, and they did this in the opening statement as well. That policing is a noble profession. Policing is good. Policing is important. This case is not about Minnesota versus the police. It’s about Minnesota versus Derek Chauvin. And there are lots of good police officers. Do you think that was overdone?

Joyce Vance:

I think it was a strategic choice. There’s a larger conversation that will happen in this country. And it’s this older notion. In some corners, people are suggesting that it’s wrong to say that this police officer, this particular cop was a bad apple. And folks want to make the argument that the entire orchard is bad. So let’s just set aside that larger societal argument and talk about trial strategy, because this is about the prosecution building a case against Derek Chauvin. Something that I know from trying police cases is that you will have some jurors on your jury who are pro-police, and you’ve got to give them some ground that they can stand on.

Joyce Vance:

And so if you’re asking them to convict because all police are bad, and this is just one of many bad cops, you’re going to have some jurors who I think are going to have a hard time going along with you. If however, you paint the case, and the prosecution did this effectively here, they had an amazing number of police witnesses. And so the argument is, this is a guy that even his fellow officers don’t like. That gives your juror who thinks of themselves as being pro-police, that gives them an area where they can stand in agreement with you and hopefully get to conviction.

Preet Bharara:

Yeah. And they kind of had to separate Derek Chauvin from the other class of officers in various ways, by means of his conduct, and by emphasizing that he didn’t follow his training, and all sorts of other things. And this raises an issue the prosecutors will talk about. There’s a difference between intent and motive. In almost all cases, you have to prove some level of mental state, some level of intent. And that’s true here. Did he intend to do cause bodily harm? Did he intend to kill? Or did he intend to do something that was reasonably foreseeable that it would cause death or bodily harm? But the question still remains, motive. Not necessarily to prove, not any part of the legal elements.

Preet Bharara:

And it was kind of interesting to see how they talked about it. Not at length. But at a few junctures, the prosecutor in summation said he had pride, which I thought was an interesting way to describe Derek Chauvin and his motive, that he chose pride over policing. And in arguing about the dynamic between the bystanders who were telling Chauvin to stop, and calling him a bum, and saying what are you doing. Even as you’re calling 911, the prosecutor’s description of that, characterization of that was that he had a lot of pride, and he wasn’t going to let anyone else tell him what to do. And so he remained me in the back of the neck, hands in his pockets, pulling pebbles out of the tire. What do you make of the pride characterization?

Joyce Vance:

So this was something that was nowhere in the trial testimony that you heard.

Preet Bharara:

Yes, exactly.

Joyce Vance:

But that’s why I think it worked and perhaps why they got away with it. In closing argument for the first time, the lawyers have the chance to argue to the jury about what the evidence means. And so this was certainly a legitimate interpretation. And the prosecution is suggesting to the jury, this is the interpretation you can draw. As you point out, motive is not an element of this crime. It’s in most crimes, not an element. But juries are always very curious about the motive. And the prosecution knew what the defense would do when it close. They knew that they would make an argument about why would he have done this in full view of cameras, that doesn’t make any sense. And they made that argument. I think that this suggestion that’s made sort of in passing, they don’t really dwell on it, that he couldn’t back down in the eyes of the crowd, that he had to win. I think that gave the jury just enough to get past concerns in that area, and that it was well done.

Preet Bharara:

I used to give from time to time, the lecture to rookie prosecutors on opening statements and on closing arguments. Then we would talk about motive. You don’t need to prove any motive in a robbery case, or in a drug case, just that they had the intent to do it. And whether it was because it made them feel like a big shot, or made the money, or they felt some compulsion, it didn’t really matter. And yet jurors are human beings. And they will be asking the question, well, why? Why did he do it? Which is why, in my experience, prosecutors will sometimes begin summations, literally with a statement about the motive. This is a case about greed. This is a case about pride. This is a case about someone wanting to be above the law, and some such thing. I think you’re right, they did it a little bit. Not too much.

Joyce Vance:

But you’re dead on the money there. That’s exactly what went on. It was a deliberate choice. Sometimes you listen to closing arguments and you’re not sure about the choices that were being made. This one was clearly an effort to give the jury a comfort level and a little bit of an answer to a question that didn’t have to be answered but that was important, nonetheless.

Preet Bharara:

I want to turn to the defense summation for a moment, which I thought overall was not particularly focused, was a little bit rambling. But then there was a moment, and you and I have mentioned this, and we were texting before we started recording the show. I want to spend little bit of time on this because, at least, to my old prosecutorial ears, it kind of really, really stood out to me. So to my mind, the nub of the case for the defense is causation. Because the intent of Derek Chauvin seems clear, the law is not good for them. But if they can somehow convince jurors that George Floyd died because of a drug overdose, or a cardiac event, or something other than the knee and the back of the neck, other than asphyxiation, maybe they can convince one or more jurors not to convict. To me, that’s the whole ball of wax.

Joyce Vance:

Agreed. That’s ballgame for them.

Preet Bharara:

And the law and the instructions on the law … By the way, you wrote a great piece for MSNBC about the importance of jury instructions. They’ll get a lot of attention on TV shows and movies about criminal cases and trials. But that’s really the whole ballgame. It depends on what the law is. If the law says, for example, that to convict the entire total exclusive cause of death was Derek Chauvin and asphyxiation, well, that’s one thing. And that’s a problem for the prosecution. If on the other hand, the law says some other version of that, that it has to admit a substantial causal factor, which in fact, is the law in Minnesota, then that’s very different. And the defense then has its hands tied, because the defense then is subjected to this problem that there were multiple causes of death. And in the middle of the summation, so I’m sitting here in my basement, I’m watching, the defense lawyer misstates the law very plainly, and very blatantly.

Joyce Vance:

Yeah, there’s no doubt. It’s the moment where I sort of stopped and sat up.

Preet Bharara:

He says directly that the prosecution has to prove to you that hypertension had nothing to do with the death, did not contribute to the death. That’s 100% wrong. And by the way, the other interesting thing about this is, is unlike in trials, and I’m used to at least in federal court, much of the jury instruction was given to the jury before the summation. So the judges already said what the causal factors are, what the standard is. And then the defense lawyer gets up and he says something as the opposite of that, that helps his client, if it’s true, and helps his client if a jury believes it. And my instinct was to jump up and wonder why the hell the are prosecutors not objecting. And in I got into a debate with a couple of people via text, and I didn’t do this with you, because I want to know what you say, and I didn’t want to pre-plan. I didn’t want to rehearse this.

Preet Bharara:

There happens to be a fairly significant tradition of not objecting during other people’s jury addresses. It’s obnoxious. It’s considered impolitic. It also looks like you’re maybe afraid of what was said. It makes you look defensive. Judges don’t like it. But I got to tell you, in cases where something very dramatic is happening, and it’s a complete misstatement of the law on which the whole case hangs, I think I would have gotten up and objected. Not everybody might have. And some people will say, well, you can save it for rebuttal and you can destroy the credibility of your adversary in rebuttal. But on that point, when Nelson got up and misstated the law in a way that might help him get an acquittal or a mistrial, would you have objected or not?

Joyce Vance:

So I would have objected. Trying cases in different places, in different parts of the country, people have different sort of cultural ways of doing things. So maybe this is part of what I’ve been told is the Minnesota nice culture. I’ve asked a couple of questions about how they do things and folks I know who live up there but who aren’t from there said, well, that makes sense because of Minnesota nice. But look, Nelson says that you have to be convinced that drugs or disease played no role in order to convict. And that’s just not the law. The jury has just heard the judge read the law. And what it permits, Blackwell, the prosecutor to do in the final closing argument, in the rebuttal, he gets up and he just says, “Read the instructions for yourself.” And then he proceeds in essence to, he says, “The defense has told you stories.” And the implication is you can’t trust the defense. So ultimately, this plays pretty well for the prosecution.

Preet Bharara:

Something about what the defense lawyer did there, and it really, really bothered me. And I know some judges, including, for example, Judge Michael Mukasey later became the Attorney General, who was one point, the chief judge in the Southern District. He sometimes did not wait for an objection. And he would just announce a sustained. If one of the parties did something that he thought was blatantly wrong or inappropriate, and sometimes I’d be thinking, did I miss the objection?

Joyce Vance:

We had a judge like that, too. And it was as a young lawyer, it was sort of unsettling, you’re in the middle of something that you-

Preet Bharara:

You ask a question and you hear sustained. What the hell did you sustain? Nobody said anything? I don’t know. I worry that you have a juror who is listening to the defense lawyer and hears that statement of the law. And it’s like, that’s sort of interesting. That’s a problem for the defense. Maybe there’s reasonable doubt there. And then later, when it’s not objected to, and later when the prosecutor corrects it, maybe that juror wasn’t paying attention or is confused. You just don’t know. I think it’s fine, because the instructions are pretty clear, and not particularly long. And we should recite them for a moment so people know what the law is. And later a juror can ask a question about it. And obviously, you have other jurors who can remind the juror who may have been misled by the defense lawyer what the law is. But I don’t know. I think it’s a tough call between not trying to look defensive and correcting something that’s really egregious.

Joyce Vance:

I would have made the objection. But one advantage to having not made it is it’s just one less problem that the prosecution has on appeal if there is a conviction. So I’m a former appellate lawyer. I was the chief of the Appellate Division in my US Attorney’s office before I became the US Attorney. And I became the appellate chief after having spent a decade as a line prosecutor. So I had enormous sympathy for decisions that folks make in the moment, in the heat of battle and trial because I screwed stuff up about every way that you could. But as an appellate lawyer, you really worried about the implications of stuff that happens in trial a year or two down the road when three folks in black robes are scrutinizing the record. So from an appeal point of view, this is okay. Assuming that they get there.

Preet Bharara:

It reminds me of a story, because you can’t research everything beforehand. And depending on how much trial experience, you might not realize what is fully appropriate, not appropriate. There’s a famous case where the Southern District was prosecuting somebody in some white collar case, I believe. And the defense lawyer was Bob Morvillo. The late Bob Morvillo was a really great, famous trial lawyer, defense lawyer in New York. Had been the chief of the Criminal Division in SDNY some years earlier. He gets up and he gives a real stem-winder of a summation. I mean, it’s really terrific. It changes the mood in the courtroom, he’s landed a whole bunch of points. Maybe he’s convinced some jurors that there’s reasonable doubt.

Preet Bharara:

The AUSA, the prosecutor on the case, who was going to do the rebuttal, the same thing that Blackwell did yesterday, is trying to figure out a way to sort of change the mood in the courtroom. He turns to his trial partner, and he says, “When I stand up, and it’s my turn to go,” and I wonder what you think about this, “when it’s my turn to go, I’m going to applaud. I’m going to give him a round of applause.” I don’t think I should name the prosecutors in the case, one of whom is now on the Second Circuit, by the way. And the person who is now in the Second Circuit says, I don’t think you should do that. And the AUSA, I’ll just say the first name, his name is Pat says, “Yep, that’s what I’m going to do.” And he gets up there and literally the first thing he does, my recollection is … And he says something like that was some closing argument. That was really terrific.

Preet Bharara:

And he basically tries to shift the mood in the courtroom by acknowledging that it was a tour de force, but it doesn’t change the facts. And the facts are these. They get back to the office. And I think they got to talk to someone in appeals. And the person in appeals, I think, thought that he was being pranked. Said, “You didn’t actually applaud, did you?” Pat says, “Yes, I did. Yes, I did.” And the appellate lawyer in the office is like, you’re not supposed to do that. And the theory is, and by the way, this happened in the Chauvin trial, if you belittle or cast aspersions on the nature of the defense, and if people don’t like that, the second trick is not going to like that. And in fact, it went up to the Second Circuit. The AUSA in the opinion by the Second Circuit was admonished-

Joyce Vance:

By name or not by name?

Preet Bharara:

Not by name. And the funny thing is that the AUSA who had clapped wasn’t the one who argued the case. So his name is not in the appeal because they decided he has kind of a conflict and he shouldn’t be the one. And the other person, Rich, who argued the appeal, he’s always been annoyed because it’s not clear. Because it seems like he was the guy who clapped. And he wasn’t. In one part of the opinion, it says something like, well, we do not literally, these are what Second Circuit judges do, while we do not applaud the conduct of the prosecutor in the case, we find no reversible error. There was a long-winded way of saying, you got to be careful about how you deal with the defense, and how you talk about the defense. And here, whether it’s Minnesota nice or not, the defense lawyer wasn’t following that. Because even though he did not get objected to when he misstated completely the law, he objected when Mr. Blackwell a few times referred to the defense arguments as stories. Do you think that was a well-placed objection?

Joyce Vance:

It was sustained. It seemed to me that it was more of an objection that you make not because you’re going to really do something with it, but because you want the jury to understand that you don’t like what’s happening. It’s not an objection that I would have made. But from a defense perspective, maybe there was a reason to do it.

Preet Bharara:

Well, he was more lengthy about it afterwards. By the way, there’s a difference between the two parties, because the defense lawyer obviously was not going to get another chance to speak. And in the main summation of the defense lawyer, the prosecutors could decide we’re not going to object because we can actually address it in our rebuttal summation. So I don’t know. But look, to be clear, people should understand, as the judge said to the jury, the law is as follows, “To cause death, causing the death or caused the death means that the defendants act or acts were a substantial causal factor in causing the death of George Floyd.” Not the exclusive factor, this is me now, not the exclusive factor but just a substantial causal factor.

Preet Bharara:

And then the instruction goes on to say very explicitly, “The fact that other causes contribute to the death does not relieve the defendant of criminal liability.” So it takes account of the idea that there could have been drugs in the system. It takes account of the idea that maybe he had an enlarged heart. But that’s not a problem, so long as the acts of Derek Chauvin substantially caused the death. And they this great chart that did in the rebuttal but the dot representing each day of George Floyd’s life. And he didn’t die in any of those days. He happened to die of these other causes, the defense claims, only when a knee was put in the back of his neck for 9 minutes and 29 seconds. I thought that was pretty powerful.

Joyce Vance:

That chart was really effective. And it goes to this notion of proof beyond a reasonable doubt. What that chart really said was, you have to be willing to believe in this incredible universe of coincidence, where suddenly George Floyd’s underlying medical condition catches up with him in the same moment that Derek Chauvin’s knee is on his neck for 9 minutes and 29 seconds. I thought the chart was really well done.

Preet Bharara:

On summations, we just maybe take a moment to address what the point of the summation is from the prosecution and the defense perspective. From the defense perspective, what do you think is the goal of defense? And depending on that, how do you think Nelson did with respect to that goal?

Joyce Vance:

So I’ve never been a defense lawyer, nor do I play one on television. But it seems to me that this, too, is all about reasonable doubt, right? The defense has to make the jury feel confused, uncertain, unwilling to rely on the prosecution’s theory of the case. I don’t think that this is what happened in this trial, to be honest, but let’s say that there had been a defense witness who had taken the stand and said fentanyl is a dangerous drug. And even with George Floyd’s tolerance, as a bit of a user, this dose could have killed him. And in fact, there was white foam around his mouth, and he passed out and blah, blah, blah, and had fleshed out that theory.

Joyce Vance:

That would create enough of a level of doubt that the jury would have something maybe to acquit on, or a couple of jurors might have hung on. That’s what the defense has to do. Literally, their only job is to do something that’s punchy and that gets your attention as a juror and makes you doubt the prosecution. And there were some strategic choices here that didn’t add up to doing that, particularly how long disclosing argument by the defense went on.

Preet Bharara:

There’s other weird stuff he did that I thought backfired. For example, at some point, the defense lawyer starts talking about how the medics came and took George Floyd. And there’s a question of whether or not they should have given him Narcan to counteract the fentanyl that was in his system. And he says a couple of times, I’m not blaming the paramedics, but of course, he sounds like he was. But it’s a bit rich to sort of assert as some of your defense or a partial defense, that other people when they arrived on the scene should have rendered medical care when his own client didn’t. After George Floyd stopped talking, after George Floyd stopped resisting, after apparently he stopped breathing or having a pulse. I wonder if some of these things were just stupid? Or is there some clever tactic that I’m not getting? I didn’t follow that.

Joyce Vance:

So I had that same reaction when I was listening to it. And then I went back through my notes this morning. And here’s the conclusion that I reached, and I wonder if you agree with me. I felt like by the end of this trial, the defense was in a really bad place. I’m not talking now about whether the jury will convict or not. But just looking at the evidence and the proof, the defense really had tried a couple of gambits and they just didn’t work. They didn’t have a lot to do. And so I think Nelson resorted to some, I’ll just say cheap shots. I mean, I don’t mean that, in that sense, necessarily, but he was throwing some spaghetti on the wall and hoping something would stick in the mind of one juror.

Preet Bharara:

By the way, I keep hearing that phrase used, a characterization made. And I guess it’s meant partially as a criticism. But it’s not really because the goal is-

Joyce Vance:

No, not at all.

Preet Bharara:

You throw five strands of spaghetti at the wall, maybe one juror likes one strand, another juror likes another strand, it gives them reasonable doubt. It would be a terrible strategy for a prosecutor to be scattershot. The prosecutor has to make a substantial evidence-based case, thorough, tight, with evidence for each and every element beyond a reasonable doubt. You can’t just be a hodgepodge of this and that and the other. But defense lawyer can. And he also did a couple of things. Maybe they’re aimed at self-deprecation. But he said at one point, “I know I’m long-winded.” I think self-deprecation is always a good thing. But maybe you don’t crystallize something like that for folks. I noted that the judge seemed to see that jurors were getting impatient and restless and he took a break in the middle of … I mean, it’s kind of odd when the summation is not that long. It’s fairly long, but it’s not an eight-hour summation that you take a break for a meal in the middle.

Preet Bharara:

And then there are other things that he said that ultimately, and maybe you’re right, that his back was up against a wall and he didn’t really know how to argue. He kept saying this point, that if you can speak you can breathe. If you can speak you can breathe. I think You made this point on Twitter, which is exactly correct. Yeah. Even if that’s true, which there was dispute about, at some point, George Floyd stopped speaking. So it doesn’t get you very far. I mean, it seems like he wanted to argue about the 16 minutes before the 9 minutes and 29 seconds, where the initial confrontation with the initial taking down of George Floyd and putting him in cuffs.

Preet Bharara:

Even if all of that was fine, again, there’s a dispute about that, but even if all of that was fine, that doesn’t save you when you get to minutes six and minutes seven. I mean, he says at one point, the defense lawyer, the prone position, he defends the prone position. I think I wrote in my notes, at one point he said, “People get massages in the prone position.” I thought, what the hell are you talking about?

Joyce Vance:

And this doesn’t help, this hurts. The jury has the same reaction that you had. It was a surprising choice he made.

Preet Bharara:

People get massages in the prone position. I mean, it’s kind of like almost … That’s kind of crazy. So maybe it wasn’t strategic or tactical. It was just an error. Because the facts are really not on their side. There are very schools of thought about rhetorical flourishes at trial. And you got to be a little bit careful about them. If you’re going to use them, I always advise on the prosecution side, use them in rebuttal because it can’t be stuffed in your face by turning it against you by the defense in a subsequent argument, because you get the last word. And prosecutor Blackwell finished his summation, I don’t have the exact words in front of me, but it was quite the turn of phrase, and I found it to be effective.

Mr. Blackwell:

You were told that Mr. Floyd died because his heart was too big. You heard that testimony. And now having seen all the evidence, haven’t heard all the evidence, you know the truth. And the truth of the matter is that the reason George Lloyd is dead is because Mr. Chauvin’s heart was too small.

Preet Bharara:

Good close or not?

Joyce Vance:

Blackwell did this so well. A lot of people would have overplayed this, would have given the jury the impression that they were being too cute by halves. But that wasn’t black. Well, it was understated. His voice sort of dropped a little bit as he did this. I wish we could have seen the jury’s faces. That’s something that’s bothered me throughout this trial, not knowing how the jury is reacting.

Preet Bharara:

But that’s been done for their safety, obviously.

Joyce Vance:

It is. And it’s important that they have that anonymity. I thought that he landed this. And the reason it landed is because it was true. I think a lot of people may have thought that when they heard the testimony about George Floyd’s heart being too big from the defense’s medical expert. The entire dynamic for this trial, just a little bit of mercy, a little bit of human kindness from Derek Chauvin would have changed the situation. There wouldn’t be a trial because George Floyd would have been put into the recovery position. Derek Chauvin would have led up a little bit. This really gets to the core of what’s going on here. And if the jury believes that Derek Chauvin was wantonly, indifferent and reckless about human life, then they should convict him on that murder, third degree charge. That’s what this statement was all about. The prosecution wants that murder three conviction.

Preet Bharara:

One more issue came up after the trial. And that is, that the defense pointed to statements by a particular member of the House, Maxine Waters, who has made public statements about how the public shouldn’t accept an acquittal and some statements about protests. And the judge kind of excoriated her from the bench about those statements, and said openly in court maybe that’s an issue you have on appeal. As the expert appellate lawyer in this dual, there’s no basis for an appeal on that ground, is there?

Joyce Vance:

No, I don’t think so. It would have to be something really theoretical, like one of the jurors walked into deliberations and said, listen, we have to return a guilty verdict. Because if we don’t, Maxine Waters is going to hate us. It would have to be something like that. This is not a-

Preet Bharara:

Because you presume that the jurors are not following the news of the case as they’ve been advised to do.

Joyce Vance:

Well, in cases, convictions would always get reversed on appeal if this was objectionable. So I think one way the kindest way of reading the judge’s comments is that he’s very concerned about protecting his record on appeal. Unfortunately, this had a different impact. And I think in much of the community, there is a concern now that the judge is not an objective actor. Whether that’s fair or not.

Preet Bharara:

Right. So what’s going to happen, Joyce?

Joyce Vance:

I have such a bad crystal ball for trials. The evidence in this case was very good. I don’t think anyone could have expected evidence to go in as well as it did. I’ve tried a number of these cases, you just don’t have this evidence. You don’t have the bystanders. You don’t have the video from multiple points of view. You don’t have five police officers who take the stand and say, this was excessive force. So it was a unique case. But I have also had juries hang on these cases, police cases are very difficult to convict in. Even a verdict for manslaughter would be significant here. Any guilty verdict would be an enormous piece of accountability, and it would send a deterrence message to other police officers. So I hope that there will be a conviction. But I’ll just say, I’ve had my heart broken by juries before.

Preet Bharara:

Yeah. I mean, for me, I agree that the evidence was very strong, came in well, the prosecutors did a great job. The defense was not so effective, because I don’t think they had a lot to work with, common sense. Blackwell said at the beginning of his rebuttal there’s a 46th witness, which I thought was a little bit of a weird metaphor.

Joyce Vance:

Yeah, it was a little corny.

Preet Bharara:

Corny is fine. But it was a little odd, because people are like what, who’s the 46th witness? And he said, the 46th witness is the only one is going to be talking to you when you go back and deliberate, and that’s common sense. The common sense is 46th witness. So I think the likelihood of a straight up acquittal on three counts, given the devastating evidence and the good presentation I think is very low. But you never know what one, two, three or four jurors might think. How they could be confused, how they might find reasonable doubt, how they might have some bias that was undisclosed. And so it could certainly hang. It could certainly hang.

Joyce Vance:

And it’s interesting here, because since there are three different charges, the jury can hang on one count, they could even hang on to as long as they convict on one of the charges, that’s enough. The problem will be if they hang on all three of those charges.

Preet Bharara:

Joyce, before we go, I heard something from the writer, historian, Eddie Glaude, on television yesterday, and it really has struck me and I keep thinking about it. What he said when he talked about this case, and people will ask the question, I’m sure you’ll be asked the question, what does it mean? If there’s a conviction, not a conviction? It doesn’t solve our problems. And there’s a lot riding on the case maybe too much. And he said, speaking of the chevron case, “This case bears the burden of our national sins.” Which I think is a very profound thing and something we’re going to have to think about. It’s not going to be good enough, no matter what happens, for people to think we’ve turned some corner just because there are convictions in this case, if there are.

Joyce Vance:

I love Eddie Glaude. He has a way of capturing things in a way that really makes sense. And I do have a little bit of a concern here. This jury is deciding the specific case of the innocence or guilt of Derek Chauvin, and they need to decide that based just under evidence of the law in this case. But Eddie is right, this problem of policing is not a problem that will go away. It shouldn’t go away. It is an issue that we have to take on. That’s a moral imperative if we’re going to continue to be a country that delivers fairness and justice for all of its people.

Preet Bharara:

Yes, you’re absolutely correct. I think we should end there. Joyce, did you have a good enough time? Will you come back next week, and then the week after, and then the week after that?

Joyce Vance:

I don’t know, Preet. Let me think about it for a minute.

Preet Bharara:

You signed a contract.

Joyce Vance:

This is great. I did. I don’t have a choice. So it’s a good thing that I knew you before I walked into this and knew what I was getting into. This is wonderful. I am so excited to get to be here with you. I’m really looking forward-

Preet Bharara:

You don’t have to be in a room with me because we’re in pandemic and you can be in the Ham.

Joyce Vance:

Sitting in my basement in Birmingham, looking out at a gorgeous, gorgeous day.

Preet Bharara:

It’s pretty gorgeous here too, actually. Anyway, welcome Joyce. It’s been great. We will talk next week. So we will be back next Tuesday. Send us your questions to letters@cafe.com.

Joyce Vance:

Please do. We look forward to answering all of your questions.

Preet Bharara:

That’s it for this week’s CAFE Insider podcast. The executive producer is Tamara Sepper, the senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Korn, Geoff Isenman, Chris Boylan, Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.