Steve Karnowski and Amy Forliti
MINNEAPOLIS — A lawyer for the former Minneapolis police officer who pressed his knee against George Floyd's neck wants to bring up Floyd's history of drug use and a previous arrest in an effort to show jurors that Floyd was partly to blame for his own death.
A prosecutor says it's irrelevant and that Derek Chauvin's lawyer is trying to smear Floyd to excuse his client's actions. Chauvin is charged with murder and manslaughter.
Now it's up to Hennepin County Judge Peter Cahill to decide the critical question of how much the high-profile trial will revolve around Floyd's own actions on May 25, when the Black man was declared dead after Chauvin, who is white, pressed his knee against his neck for about nine minutes. Floyd's death, captured on a widely seen bystander video, set off weeks of sometimes-violent protests across the country and led to a national reckoning on racial justice.
The judge previously rejected Chauvin's attempt to tell the jury about Floyd's May 2019 arrest — a year before his fatal encounter with Chauvin — but heard fresh arguments Tuesday from both sides. He said he would rule on the request Thursday.
Defense attorney Eric Nelson argued that new evidence makes the earlier arrest admissible: Drugs were found last December during a second search of the car Floyd was in, and were found in a January search of the squad car into which the four officers attempted to put Floyd.
He also argued the similarities between the encounters are relevant: Both times, as officers drew their guns and struggled to get Floyd out of the car, he called out for his mother, claimed he had been shot before and cried, and put what appeared to be pills in his mouth. Both searches turned up drugs in the cars. Officers noticed a white residue outside his mouth both times, although that has not been explained.
In the first arrest, several opioid pills and cocaine were found. An autopsy showed Floyd had fentanyl and methamphetamine in his system when he died.
"The similarities are incredible. The exact same behavior in two incidents, almost one year apart," Nelson said.
Paramedics who examined Floyd in 2019 warned him that his blood pressure was dangerously high, putting him at risk for a heart attack or stroke, and took him to a hospital for examination. Nelson argued that shows Floyd knew that swallowing drugs might result in going to the hospital rather than jail.
But prosecutor Matthew Frank argued that evidence from the 2019 arrest was prejudicial. He said the defense wants it as a backdoor way of depicting Floyd as a bad person. He called it "the desperation of the defense to smear Mr. Floyd's character, to show that what he struggled with an opiate addiction like so many Americans do, is really evidence of bad character."
And he argued that the only relevant thing in Floyd's death is how he was handled by Chauvin and the other officers.
"What these officers were dealing with is what they were responsible for," Frank said. "What is relevant to this case is what they knew at the scene at this time."
Cahill said he would stop the defense "very quickly" from suggesting at trial that Floyd didn't deserve sympathy because he used drugs.
"You don't just dirty up someone who has died in these circumstances as a defense," he said. But he said he would weigh the defense's argument that alleged drug use during the 2019 arrest that led to "a hypertensive emergency" is relevant to what may have caused Floyd's death in 2020.
"I think that's, that's the only relevance I see," Cahill said.
One legal expert said he saw legitimate grounds for Cahill to allow the 2019 arrest at trial given the evidence found in the follow-up searches of the cars. But he said it also could unfairly prejudice the jury against Floyd.
"The problem is, it's not possible to do one without doing the other," said Ted Sampsell-Jones, a professor at the Mitchell Hamline School of Law. "The evidence does have some legitimate relevance, but it also carries a significant potential for unfair prejudice. It's a difficult evidence problem that Judge Cahill will have to carefully balance."
Michael Brandt, a local defense attorney, said the new evidence would bolster the argument that Floyd had a "propensity for ingesting pills when being arrested" and that he knew that it could be a way to stay out of jail. That might be enough for jurors to pass up convicting Chauvin on the most serious charges, Brandt said.
The question of Floyd's drug use has played out in jury selection, with prosecutors gauging prospective jurors' attitudes.
One person picked for the jury, a Black man in his 30s, said he didn't judge drug users more harshly than others.
"My opinion on them is no different than my opinion on anybody else. It's just something they are struggling with, they are possibly trying to get through," he said.
Another, a white man in his 30s, said he'd heard news stories that Floyd may have been under the influence of drugs, but when asked what he thought about it said he didn't think it should affect the case.
"Whether you are under the influence of drugs doesn't determine whether you should be living or dead," he said.
Nine jurors had been seated through Monday, including five who are white; one who is multiracial; two who are Black; and one who is Hispanic. The jurors include six men and three women and range in age from their 20s to their 50s.
No new jurors were selected on Tuesday, with several dismissed for hardship reasons, including a substitute teacher and a woman who has a child under age 1. One man was dismissed because he sees daily headlines about the case in software applications job for a major news organization, and another after he kept explaining that he could only try but not guarantee that he could presume Chauvin's innocence.
The selection process continues until 14 people — 12 to deliberate and two alternates — are seated. Opening statements are expected March 29 unless the process isn't complete by then.
Cahill is considering a defense motion to postpone the trial after Nelson argued that a $27 million settlement to the Floyd family — announced by the city of Minneapolis last week in the midst of jury selection — unfairly tainted the jury pool.
Cahill planned on Wednesday to re-interview the seven jurors who had been seated by that point to determine whether they could continue to serve.
Three other former officers face an August trial in Floyd's death on charges of aiding and abetting second-degree murder and manslaughter.