The public quickly reached his verdict: Minneapolis police killed George Floyd.
Video from around the world shows him on the sidewalk, his neck strapped under Officer Derek Chauvin’s knee, and pleading for his life – “I can not breathe” – until his body runs limp.
Two autopsies concluded that the death was a murder.
Chauvin was charged with murder and three other officers – Thomas Lane and Alexander Kueng, who both helped keep Floyd in check, and Tou Thao, who kept spectators in suspense – were charged as accomplices.
In an interview with The Times, a lawyer for Lane explained what he said would be a central argument for the defense.
“Not one of these guys – even Chauvin – actually killed him,” said attorney Earl Gray. “He killed himself.”
Free to speak publicly since a judge lifted a gag order on all parties in the case, Gray said he intends to argue that Floyd died of an overdose of the powerful opioid fentanyl and an underlying heart condition.
“We will show that my client and the other cops did their job,” he said.
The veteran of defense defense attorney said he will base his case on reports of toxicology and autopsy, as well as recently released footage of police bodies offering a more complete picture than the phone videos made by people on the street.
The video camera footage shows that well before Floyd was captured on the ground, he told officers at least six times, “I can not breathe.”
Legal experts said the defense strategy is not as far-fetched as it may seem, especially given that juries are unwilling to convict police in on-site murder.
“This is not a slam dunk for the prosecution and not an easy case, especially for higher-level prosecutors of murder,” said Philip Stinson, a forensic scientist at Bowling Green State University and former cop who investigates police abuse. “If this case goes to trial and an officer testifies on his own behalf, it is possible that there is reasonable doubt for jurors.”
No case in modern times has been reproducible by society like that of Floyd, a 46-year-old Black man whose death on May 25 confirmed for many a long-standing national pattern of police racism and abuse.
Protests spread rapidly, becoming the largest in American history and expanding to more than 60 countries in support of the Black Lives Matter movement.
All four officers were discharged and are free on bail. Lawyers for Chauvin, Kueng and Thao declined to comment, as did prosecutors in the case.
Last month, Gray filed a motion to dismiss the case against Lane. The submission included transcripts of the video from his body camera and of the one carried by Kueng, and opened the door to make the recordings public.
The footage, which was released last week and occupies 37 consecutive minutes, begins when officers arrive at a convenience store in response to a call that a customer had presented a counterfeit $ 20 bill.
Lane knocked his flashlight on the window of a Mercedes-Benz SUV park near the store.
“Show me your hands,” he said to Floyd, who was sitting in the driver’s seat.
“I’m sorry, I’m sorry,” Floyd said.
Lane demanded on his fourth day as a police officer, to see both hands. “Stand up … hands up!” he said to Floyd, who asked, “What are we doing, sir.”
When Floyd did not immediately follow instructions, Lane pointed a gun at him.
“Please do not shoot me, man,” Floyd said.
“I’t not shoot you, man,” Lane said, helping his gun as Floyd pulled his hands up.
Christine Gardiner, a criminal law professor at Cal State Fullerton, said the opposite approach, common in policing, sets the tone for escalation.
“If they had approached him respectively, I think things could have turned out very differently,” she said.
The video shows officers holding Floyd in handcuffs and walking him to the sidewalk. He stumbled, weaved and cried.
Asked if he was ‘on to something’, Floyd said he had ‘hopped’, or was taking drugs.
The officers directed him to a police car and ordered him to enter. He resisted, repeatedly saying that he was claustrophobic and could not breathe.
They tried to push him to the back seat. Lane offered to stay with him, roll down the windows and turn on the air conditioning. Eventually, the officers decided to put him on the street.
Chauvin nodded nine minutes and 30 seconds to Floyd’s neck – 44 seconds longer than prosecutors initially claimed.
In its July 7 motion, Gray included Minneapolis police training materials on how to deal with an uncooperative suspect in handcuffs. A restraining position, illustrated in a photo, is similar to the method used by the officers.
The instructional material also includes a warning: “Sudden cardiac arrest typically occurs immediately after a violent fight.”
On June 5, the Minneapolis City Council voted to ban chokeholds and neck management by police.
Stephen Houze, a Portland, Ore., Attorney who has represented officers accused of brutality, said the extent to which the suspects were following their training would be important in the trial.
However, he added: “No statement now being made to avoid criminal liability could diminish the power of the video.”
The defense does not have to prove that Chauvin Floyd was not killed. It should only create reasonable doubt by convincing jurors that there are other plausible explanations.
George Parry, a former federal and state prosecutor who was once in charge of a police brutality and ill-treatment unit of the Philadelphia attorney’s office, suggested this would not be troublesome.
Parry wrote this month in the conservative magazine The American Spectator, Parry focused on Floyd’s erratic behavior, his early complaints about breathing problems and the findings that he was suffering from coronary artery disease and a potentially fatal concentration of fentanyl in his had blood.
“So, who killed George Floyd?” Parry wrote. “That he did.”
But Carl Hart, a neuroscientist at Columbia University, said the human response to psychoactive drugs is far too complex to draw conclusions based solely on fentanyl concentrations, which fluctuate rapidly and may increase after death if the drug in it body break.
“If the officer had not laid his knee on George Floyd’s neck, he would probably be alive today,” Hart said.
That advice is consistent with the autopsy performed by the county’s medical bureau, which found the death was caused by “cardiopulmonary arrest while being restrained by lawmakers (en).”
A second postmortem examination, led by Drs. Michael Baden, an expert hired by the Floyd family, concluded that he was killed by asphyxia.
In an interview, Baden said that despite everything Floyd said about breathing problems, or drugs as underlying health problems, “he died because of the way he was restricted, period.”
Asked if he believed the officers intended to kill Floyd, Baden said: “I do not think they intended to kill him, no.”
Evidence of intent is an important part of the case that prosecutors need to make.
Chauvin was originally charged with third-degree murder and assault, requiring prosecutors to prove that a suspect did something risky and caused a death without meaning to do so.
But after public protests that Chauvin deserved greater punishment, Minnesota authorities added an indictment of second-degree murder, claiming he caused Floyd’s death while intentionally causing bodily harm.
The prosecution does not have to prove that Chauvin intended to kill Floyd, only that he committed a criminal offense and in the process caused the death.
Suzanne Luban, a Stanford Law lecturer, said the evidence suggests a minimum that Chauvin behaved carelessly. He refused repeated suggestions from Lane – who was concerned that a condition called “raised delirium” could be set – to move Floyd.
“Just get him going,” Chauvin said.
Gray notes that the officers took care of Floyd early in the meeting, and an ambulance call, because his mouth was bleeding from a scratch that was sustained when they tried to get him the squad car – and that they had the urgency of the call up.
“If these cops intended to kill this man or seriously injure him, then why are they calling the ambulance?” he asked.
A conviction on charges of aiding and abetting second-degree murder or manslaughter would require evidence that they intentionally helped commit a crime.
Convictions of police in murder on farm are rare.
Gray served on the legal team that won an exemption for the officer who murdered Philando Castile, a supervisor of Black School Cafeteria, in 2016 during the day in Minneapolis.
The girlfriend of Castile had captured the aftermath of the shooting in a video that went viral and caused national uproar.
The trial of the four officers in the Floyd case is scheduled for March, but delays are common and foster care is possible.
Tyler, a professor at Stanford Law School and director of its Criminal Defense Clinic, said the case may come down to showing the jury that two sets of facts can both be valid.
“Someone may be under the influence of a drug and may then suffer a manslaughter in the hands of the police,” he said. “That seems to be the case here.”
