Published April 19, 2021

Elie Honig:

Hey everybody. As many of you know, each Friday on the Third Degree Podcast, I speak with a rotating cast of some of the nation’s top law students about breaking legal news, compelling cases and what it means to lead a life in the law. These episodes are part of the Cafe Insider Membership. Insiders get exclusive content, including a weekly podcast, hosted by Preet Bharara and Anne Milgram, audio notes from contributors, including me and bonus content from Stay Tuned and Doing Justice. You can now become a member for half the annual membership price, just head to cafe.com/insider and enter the special code degree. That’s cafe.com/insider and the discount code is degree. And now, onto the show. From Cafe, this is Third Degree, I’m Elie Honig.

Defense lawyers sometimes complain that the prosecution in a trial has all the advantages. And I have to say, there’s some truth to that. Prosecutors do have some important structural advantages at any trial. For example, prosecutors usually sit closer to the jury itself, physically. In many courtrooms, the prosecution and the defense tables are next to each other, but the prosecution’s table is always the one closer to the jury box. In the SDNY, the prosecution actually sat in front, closer to the judge and the defense sat in back. The prosecution gets to open first. The prosecution gets to close last. So anyone who’s ever taken elementary level psychology classes, like I have remembers the importance of primacy and recency. The first thing in the last thing that people here tend to resonate the most. The prosecutors get to stand up and say, “For the United States,” or, “For the people.”

And let’s be honest, most people, jurors go into trial thinking even maybe subconsciously the prosecutors are more or less the good guys, the defendant and his attorney are more or less the bad guys. Of course, anytime a defense lawyer would complain about these advantages. We witty prosecutors always had a retort ready. We would say, “You know what else we have? The burden of proof. Want to trade?” I know. We were so, so witty. Indeed, no defendant in any criminal trial in the United States ever has to present one whit of evidence to a jury. There is a natural tendency to think of a trial as a contest, like a sporting event, a basketball game, whoever scores the most points wins. But really, that’s not how it works because the prosecution alone bears the burden of proof beyond a reasonable doubt and those are not just words. That is a heavy evidentiary burden.

I’ve born it as a prosecutor. And what it means is that a defendant can choose to just sit back, poke holes in the prosecution’s case on cross examination, or even do nothing at all. Let’s assess the defense as we’ve heard it from Eric Nelson, the lawyer for Derek Chauvin. First of all, police use of force. I got to tell you, I wondered before the defense case started, will they actually call their own witness on this? Is there a cop out there, a former cop, an expert who will testify that Derek Chauvin’s use of force was reasonable, was appropriate? I thought maybe they would just rely on their cross examination of the prosecution’s witnesses. Enter Barry Broad. This was the defense expert. And he told us essentially the exact opposite of what we heard from the prosecution experts. Barry Broad opined that in his expert view, Derek Chauvin’s use of force was reasonable and appropriate and justified.

As you can tell from my tone, I find that really hard to believe the question I wanted them to ask Berry Broad is would you show a video of what Derek Chauvin did to George Floyd to the classes that you trained at the academy? I mean, he can’t answer that. If he says, “Yes,” he looks utterly ridiculous. If he says, “No,” he totally undermines Derek Chauvin’s case. Now what is a jury supposed to do here? How does a jury decide when one expert says one thing and the other side’s expert says the exact opposite. The key to understand here is there’s no magic to expert witnesses. They are to be assessed the same as any other witness. How well founded is their opinion? Do I believe this person? Point two in the defense, medical causation. Now the defense was up against an imposing prosecution case where the prosecution had called a pulmonologist, Dr. Tobin, the guy with the Irish accent, and they also called a cardiologist to testify specifically about the heart.

All of those witnesses agreed on the same core here that George Floyd died, his heart, his brain, his lungs shut down because of oxygen deprivation. They differed a bit on the margins. Dr. Baker, who conducted the actual autopsy did find contributing factors, George Floyd’s medical condition and drug use. But that’s not a big problem because remember, all the prosecution has to show is that Derek Chauvin’s actions were one of the substantial contributing factors here. All the experts agreed on that for the prosecution. And then the defense called their own expert, Dr. Fowler and his testimony boiled down to essentially George Floyd died because of everything but Derek Chauvin’s knee. Everything else that you can think of. And again, experts get no special treatment. The jury can decide to credit Dr. Fowler fully or in part or to utterly disregard.

And I got to tell you, when I watched Dr. Fowler, when he was testifying on direct, my gut reaction was okay, lightly skeptical, but let’s see how this plays out. He says he has these conclusions, let’s see what the prosecution does on cross and on cross that prosecutor dismantled Dr. Fowler, and he didn’t do it in a Hollywood way, he didn’t yell and scream and demand, “I want the truth,” and pound the podium. He did it very understated. He did it in a very systematic, really effective manner, which brings us to our third point, the jury. Now the jury will get the case this week. They will get it later today. A few important things to know, first of all, the jury will consider each count separately. People sometimes wonder, is this a menu? Do they have to just pick one of the three charges? Can they choose them all?

The jury will consider each count separately and independently. Each count has its own elements, its own intent. Now you may be wondering, how can Derek Chauvin have more than one intent? Can’t a person only have one intent? Well, there’s this notion of what we sometimes call a lesser included charge. It’s not exactly correct here because they’re not necessarily included in one another, but I’ll boil it down to this. The jury can find that Derek Chauvin’s intent was broad enough and bad enough to cover more than one of the charged crimes. For example, the jury could find that Derek Chauvin both intentionally assaulted George Floyd causing his death. That’s the top charge, murder in the second degree. And that in the same process, Derek Chauvin negligently created an unacceptable risk, that’s manslaughter.

In fact, you would think that if a person, intentionally assaults someone, that in itself could negligently create an unacceptable risk. So the jury can choose to convict or acquit on all three, on two of the three, on one of the three or none of the three. Also, of course, the jury must be unanimous in order to find Chauvin guilty or not guilty. You might wonder, I think naturally, how does any jury ever get to unanimity? I mean, what in the world can 12 strangers ever agree on? But the thing is juries almost always do reach unanimity, not always, but almost always. And I think there’s a couple interesting things at play here. There’s a group dynamic. There’s 12 people sitting together in a room. They are instructed, you must deliberate. You must exchange views. They are specifically instructed, your goal here is to reach a unanimous verdict.

The judge will tell the jury, “That’s what we, the court system wants and expects you to do.” And there’s even additional pressure. If it ever gets to a point where a jury sends out a note, and I’ve had this happen saying, “Judge we’re hopelessly deadlocked. There’s some number of us who just won’t agree with the other number.” Then the law actually says the judge can and almost always does give them another instruction. The technical term for it is an allen charge, but essentially, the jury comes out and the judge brow beats them. The judge says, “I don’t want any of you to give up your own personal beliefs. However, you need to do everything you possibly can to become unanimous.” And that has the effect sometimes of breaking a stalemate. This jury, one other interesting point, they are sequestered.

Meaning, when they’re done deliberating for the day, they won’t go home to their families. They will be held together in some secure facility, I imagine a hotel. What impact will that have? I think one thing it will do is it will incentivize them to come back with a verdict more quickly. I mean, living in sequestration as part of a jury has got to be a difficult experience. I think they will have every self interest in getting themselves together and getting a verdict in if humanly possible. Ultimately, the jury will send out a note saying, “We have a verdict.” And at that point it’s just like you’ve seen on TV. The jury will come out. The judge will say, “How do you find?” And they will say guilty or not guilty. I’ve been there. Take my word for it. My heart will be pounding when this happens, your heart will be pounding when this happens. It is a remarkable, dramatic moment.

In fact, the first time I ever got a jury verdict, as the jury was coming in, my supervisor who was much more experienced than me, I think could tell that I was really nervous and he leaned over and whispered in my ear, “Can you believe they really do it this way?” And I didn’t laugh at the time, but it’s true. There’s so many less dramatic ways we do it, but we do insist on doing it in this theatrical way. So get ready for that moment this week. Thanks again for listening in throughout this trial, it’s really been a privilege to help break it down for you.

We’ll break it down again at the end after we get a verdict, talk about what it all means. So stay with us here on Third Degree, I’m Elie Honig. And as always, send us your thoughts, questions and comments to letters@cafe.com.