Why This Former Lawyer Would Have Argued ‘Very Differently’ If He Had Represented Derek Chauvin

Virginia Allen /

Derek Chauvin has been found guilty of murder.

Chauvin, the former Minneapolis police officer who pressed his knee against George Floyd’s neck for more than nine minutes, was convicted Tuesday of second-degree unintentional murder, third-degree murder, and second-degree manslaughter in Floyd’s death.

For three weeks, jury members listened to attorneys’ arguments during the trial in Minneapolis. On Tuesday afternoon, the jury announced that it had found Chauvin guilty on all charges.

If given the opportunity to represent Chauvin, “I would have done it very differently,” says John Hinderaker, president of the Golden Valley, Minnesota-based Center of the American Experiment and a graduate of Harvard Law School. He practiced law for more than 40 years. 

Hinderaker joins “The Daily Signal Podcast” to discuss the arguments made during Chauvin’s trial. He also describes the atmosphere in Minneapolis as the city continues to brace for unrest. 

Note: The interview with Hinderaker was recorded Tuesday afternoon, ahead of the announcement of the jury’s verdict. 

We also cover these stories:

Listen to the podcast below or read the lightly edited transcript.

Virginia Allen: I am so pleased to be joined by John Hinderaker, president of the Center of the American Experiment in Minneapolis, Minnesota, and founder of the conservative news and commentary platform Power Line. Sir, thank you so much for being here today.

John Hinderaker: Hey, glad to do it.

Allen: So, you practiced law for over 40 years. You’re a graduate of Harvard Law School. And I know that you have been following the Derek Chauvin trial very closely. Chauvin faces charges of secondary unintentional murder, third-degree murder, and second-degree manslaughter in the death of George Floyd.

On Monday, the defense and prosecution attorneys made their final arguments before the jury. And as of Tuesday afternoon, when we’re having this conversation, the jury is still in deliberation. So this trial, it lasted about three weeks.

What were your thoughts on the arguments presented by Chauvin’s defense attorneys and the prosecuting attorneys over the last three weeks?

Hinderaker: Virginia, I’m always reluctant to criticize another lawyer because he knows his case a thousand times better than I do. But that said, I thought that the defense in this case was very odd and it really came to a head in the closing arguments yesterday.

To me, the fundamental issue in this case, the most fundamental issue is what killed George Floyd. And I think there’s a strong case to be made that he died of a fentanyl overdose and the police officers were merely bystanders. They didn’t kill him, they were just there when the drugs killed him.

I think that making that case is probably the only shot that Chauvin had to walk away without a conviction. And for some reason, the defense never really made that case.

Their medical expert talked about how there are multiple causes, multiple factors involved and ultimately gave the opinion that the cause of death is undetermined. Whereas the prosecution had several medical witnesses who said it was 100% asphyxiation, nothing else. No drugs, no heart condition, no hypertension. It was asphyxiation.

And then in his closing argument, Eric Nelson, Chauvin’s defense lawyer, got up and talked about these various elements that were involved. And he said, “Now, you can only convict if asphyxiation was the only cause of death. If any of these other things—the drugs, the heart condition, the high blood pressure, all that stuff—if any of that contributed at all, if it wasn’t 100% asphyxiation, then you have to acquit.”

Well, that’s not the law. That’s just not the law. The law in Minnesota is that if the defendant, that is Chauvin’s actions were a substantial causal factor, that’s all it takes.

And so when he was done with his argument, which lasted for like two and a half, two and three-quarters hours, the prosecution lawyers approached the judge and they said, “We want the court to re-read the instruction that says that the arguments of the lawyers are not evidence. And if you find that a lawyer has misstated either the facts or the law, you should disregard it.” And the judge did that. …

The way it goes in closing in a criminal case, it’s prosecution, defense, prosecution, right? So before the prosecutor got up for his rebuttal argument, the judge actually re-read that instruction to the jury, basically telling them that the defense lawyer was making stuff up. It’s like a knife in the heart.

And then Jerry Blackwell, who gave the rebuttal for the prosecution, got up and immediately, of course, talked about the fact that the defense lawyer had misrepresented the standard. And in fact, if what Chauvin did was a substantial causal factor, they could convict him.

So, in a sense, the defense case kind of came crashing down due to what seems to me to have been kind of a misguided strategy from the start.

Allen: So if you were arguing on behalf of Chauvin, what are some of the things you might’ve done or said differently?

Hinderaker: Well, I would have done it very differently. No. 1, I would have found an expert who would testify that the sole cause of death was fentanyl overdose.

He had two to three times a fatal dose of fentanyl in his system, George Floyd did. The prosecution’s argument was 11 nanograms per milliliter. That would kill a normal person, but it maybe wouldn’t kill George Floyd because he was an addict so his tolerance is higher.

To me, that’s not a great foundation on which to try to put the other guy in prison, right?

But I know there’s a study out there that says that even among opioid addicts, 9 nanograms was the median overdose that caused fatality, George Floyd was at 11. So I would have found an expert that would say he died of a drug overdose, not anything that the officers did.

The second thing is there was all kinds of testimony, including from the chief of police at the Minneapolis Police Department. He testified against his own officer, as did several others from the Minneapolis Police Department. This guy was thrown under the bus more than anybody I’ve ever seen.

But there was all this testimony about what a reasonable police officer would do. Was it reasonable to continue kneeling on him, not when he was thrashing around initially, but after he got quiet?

And reasonableness, that’s the standard for negligence. It’s not the standard for murder. And that depends in part on state of mind and intent. And there was no evidence, there was no evidence on that whole territory that lies between negligence and homicide, murder.

And Chauvin didn’t testify. And so there wasn’t any evidence at all on what he thought, what he intended, why he did what he did.

The prosecutors argued the case basically by saying, “Just look at the video. Just look at the video and you can see Chauvin’s intent in the video. You can see that it’s murder, it’s manslaughter.”

Well, I think if you actually focus on the standards for those crimes under Minnesota law, I think you can argue that there’s little or no evidence that Chauvin actually fits the bill based simply on the fact that he and the other officers were subduing this guy on the street. But it would have taken a very different approach, in my opinion.

Allen: And of course that video is something that now the world has seen. And I mean, it makes anyone feel sick to their stomach, frankly, when you watch it. I mean, it is very sobering to see an individual handcuffed on the ground and is telling an officer he can’t breathe.

All the jury members, no doubt, have seen that video probably multiple times. And they have a really tough decision ahead of them. So walk us through, how were these jury members chosen? Do we know?

Hinderaker: Yeah. Oh, sure. We know. And by the way, George Floyd was saying he couldn’t breathe from the moment the police officers arrived on the scene.

He couldn’t breathe because his lungs were filling with fluid, which is what happens when you overdose on fentanyl. So he said over and over, “I can’t breath, I can’t breath,” when he was standing up, walking around, wrestling with the police officers.

The jurors had all seen the famous video, but at trial for the first time they saw the video of what came before for 20 minutes, as he’s fighting with the officers. He was crazy. He was out of his mind on drugs. He was just hysterical. And that was news to the jurors. I think that there was a potential there that the case could have swung the other way.

So how did they pick the jury? They do it the way it’s normally done in criminal trials. They pick 12 jurors and two alternates and they do it one at a time. And so they bring in one person and they ask them questions.

And maybe one of the lawyers or one of the teams will move to excuse the juror for cause. And the court will rule on that. And maybe they’ll just send the juror away.

In this case, the standard that got applied basically was if the juror said, “I can be fair,” he didn’t get removed for cause, right? And so the jury might say, “Oh yeah, I’ve seen the video. I’ve got a really negative opinion of Derek Chauvin. And I know that the mobs are out there ready to riot if there’s a not guilty verdict, but nevertheless, I could be fair.” That guy got on the jury and then beyond the peremptory strengths is their call if you think a guy is challenged for cause.

Beyond the challenges for cause, each side has a certain number of peremptory strikes where they can say, “That guy’s off.” And it’s a kind of a game of strategy because you got to be careful not to use up all of your peremptory strikes because you don’t know who’s yet to come.

Allen: Walk us through what it’s like to serve on a jury for a murder trial. I mean, are all these individuals now kind of sitting around a large table, debating different facts of the case? And how much time is normal usually for them to take in reaching a consensus?

Hinderaker: Well, let me back up for a moment, Virginia, because this is a completely bizarre experience for these jurors. They all know about the riots last summer. They all know that the National Guard has been in town for weeks. Downtown Minneapolis is basically closed down. The stores, the store fronts, the buildings are covered with plywood.

The trial is taking place at the Hennepin County Government Center. It’s 24 stories high, two towers. An administrative tower, a court’s tower. It’s all shut down. It’s cold and dark. The only people in that whole 24-story building are the people in this court room.

So the jurors and the courthouse itself [are] surrounded by concrete barriers, barbed wire, and National Guardsmen. So that’s what the jurors see every day when they come to the trial. I mean, it completely, it’s a unique juror experience. They understand what’s going on.

… And they were not sequestered during the trial. They would go home in the evening. They’d come and go from the courthouse. And they’d see the concrete, the barbed wire, the National Guard. So that went on for three weeks.

So now they’re sequestered as they deliberate. And you’re right, there’s 12 of them. They let the alternatives go. They sit around a big conference room table. First thing they have to do is elect a foreman. And that probably is pretty quick, but it takes a while for 12 people to do anything.

And then they start talking about the evidence. And how they do it is entirely up to them. They’re not given really any rules. But they’ll spend some time talking about the evidence. I think they probably have got the jury instructions in writing in the room. So they may go back over some of them.

They’ve got a verdict form they have to fill out. They’re asked certain questions and they decide the case by answering the questions. So it takes some time for 12 people to talk about the evidence, to talk about the instructions, to talk about how to answer the questions on the verdict form and try to arrive at a consensus. And how long that takes, there’s no way to tell. Juries sometimes are out for a number of days. Sometimes they come back in a matter of hours.

Allen: And like you mentioned, there are concerns about, essentially, the neutrality of the jury, just because there has been so much news coverage on this topic. The jurors are seeing what things look like in their own city and the barbed wire and all the National Guard members.

Even after the jurors left the courtroom on Monday, defense attorney Eric Nelson, he called for a mistrial, arguing that, with that media coverage and the comments made by … Democratic Rep. Maxine Waters of California, that sort of the waters had been muddied.

Now, the judge denied the motion for a mistrial, but even the judge agreed, yes, members of Congress and political leaders, they need to watch the words that they’re using around this trial.

Rep. Maxine Waters, she’s actually been encouraging confrontation in the streets. Do you think that this kind of rhetoric from political leaders does influence the riots?

Hinderaker: Well, to some degree. She was out there with the rioters, with the demonstrators. I’m sure to some degree it gets them riled up.

But we’ve lived through just a nightmare scenario here during this trial that not only did we have politicians like Maxine Waters making totally inappropriate comments, but in the middle of the trial, we had another police shooting at Brooklyn Center, which is about 10 miles from where the trial’s being held in downtown Minneapolis. And it was another case of resisting arrest, as they all are.

The guy was wanted for attempted armed robbery, for weapons violation, for fleeing the police, for failing to appear at a court hearing. They stopped him for expired license tabs, ran his ID, and he was wanted. And so he starts fighting with the police officers.

He gets back his car, having gotten out, and is going to try to drive away. He successfully fled the last time he got apprehended. And one of the police officers—a woman who had 26 years, I think, on the force—tried to pull out her taser and she’s yelling, “Taser, taser, taser,” to tell the other officers to step aside because she’s about to tase this guy. And she accidentally pulled out her Glock instead of her taser and shot him and he died.

So in the middle of the Chauvin trial, we had that event and we had riots going on and happily, the National Guard—who was already in town, right? So they could send them up to Brooklyn Center to try to keep the rioters up there under control. But I mean, it’s been a nightmare scenario.

Allen: Wow, wow. Well, I mean, you live in the Minneapolis area. When you step out onto the streets, what is the atmosphere? What are your neighbors saying? What’s the mood right now in the city?

Hinderaker: I think there’s a lot of expectancy about this jury verdict. I think, it’s really where I live in the suburbs, life goes on. People aren’t standing around worrying about Derek Chauvin. But downtown Minneapolis is a ghost town. There’s just nobody there except for law enforcement and National Guard.

To me, the real question is: What’s the long-term impact on this metropolitan area and especially the city of Minneapolis going to be? I mean, that city has gotten such a black eye through all the things that have happened over the last year that I’m afraid it’s going to have some real lingering consequences.

Allen: Well, if I may be so bold to ask, if you were sitting on the jury for this case, what might be the verdict that you would like to see given?

Hinderaker: To convict Derek Chauvin of manslaughter, the jury has to find culpable negligence on his part. I think they’ll find that, and maybe they should on the theory that when George Floyd got quiet, the officers should have gotten off him. I think they’ll find that.

But then they have to go on to say that Derek Chauvin has created an unreasonable risk and has consciously taken chances of causing death or great bodily harm to George Floyd.

I don’t really think there’s any evidence that he did that consciously. That he consciously believed that he was taking a chance of killing or causing great harm to George Floyd. He was just waiting for the ambulance to come. The ambulance was supposed to arrive any moment and the officers are just waiting for it.

And so I’m not so sure the evidence is there beyond a reasonable doubt, even on manslaughter. But I wish he testified, I wish he testified.

Allen: So if the prosecution or defense is not satisfied with the outcome of the case, could it be appealed to a higher court?

Hinderaker: Well, the defendant, if he’s convicted, can appeal. And the trial judge suggested yesterday that he might have a ground to appeal based on Maxine Waters’ incitement of the rioters the night before. I would say that there is the chance of a snowball in a very hot place that the appellate state courts in Minnesota would reverse a conviction and do this all over again. I don’t think that’s going to happen.

Allen: All right. Well, I want to give you a chance for just any closing thoughts as we continue to watch this case unfold.

Hinderaker: Well, I tried many, many jury cases as a lawyer for, as you’ve noticed, for 41 years. And I’m a believer in the jury system. I think generally juries do a good job of trying to do the right thing, the fair thing. And I’m hopeful that they will do that in this case.

I think what this case really tests is whether there’s a certain level of pre-trial publicity and public pressure and threats of violence and so on where a fair trial is simply impossible. I mean, I think you have to wonder, is there any way that this process can possibly be fair to Derek Chauvin?

Allen: In that case, I guess it’s sort of, you throw up your hands and what can be done because, obviously, in something so highly publicized, it’s impossible to find 12 individuals who aren’t aware of the situation and haven’t heard the coverage on both sides.

Hinderaker: That’s right. That was very clear during jury selection. I mean, these jurors knew all about the case. Every one of them had seen the nine and a half minute video and they thought they knew about the case.

Of course, one of the problems is they only knew about the last nine minutes. They didn’t know about the 20 minutes that came before, which are really important to what the police officers were doing.

And one of the interesting things about this case, Virginia, is that it’s a case that never could have happened 20 years ago.

The whole case was about video. In the old days, you’d have a jury trial and the jury would try to figure out what happened based on witness testimony. Well, here we know exactly what happened. Every moment was filmed by cameras from multiple angles. We know exactly what happened.

This whole case never would have come about in the way that it did if it hadn’t been for the bystander video that got posted on social media and became an international sensation. So that’s a real milestone of this case. It’s a case that really was driven from the very beginning by the existence of all that video.

Allen: No, it certainly, in many ways, changes how we maybe look at cases and how they move forward. But you had mentioned a couple of times the video, not just that kind of nine minute, 30 second or so video that has been so, so floated around, but the 20 or so minutes beforehand. The prosecuting attorneys, they argued that Floyd cooperated with Chauvin and the other officers. But you argue, no, that’s not quite right.

Hinderaker: Well, that’s ridiculous. I mean, of course he didn’t. I mean, there were four officers there and he was fighting, he was wrestling. In fact, the first time they called the ambulance, they did it because he cut his face fighting with the officers in the back seat of the squad car.

All the officers wanted George Floyd to do is to sit quietly in the back of the squad car until the ambulance got there. That’s all they were trying to get him to do. And they couldn’t. George Floyd was a huge guy. He was big, he was strong. He outweighed Derek Chauvin by 80 pounds.

So the police officers were physically unable to force George Floyd, who was, again, out of his mind on drugs, to stay in the squad car. He insisted on being on the street.

The only reason that they were kneeling on him on the street is because that’s where he wanted to be and he wouldn’t stay in the squad car. So they finally said, “OK, OK. We’ll keep you on the street.” And so there’s a lot of context here that the jury needed to know to have even the semblance of a fair trial.

Allen: Yeah, yeah. Well, that’s certainly a lot of information and a hard decision that waits before that jury. And we’ll, of course, continue to watch the news unfold over the next hours and days. But we really thank you so much for your time and for coming on and breaking down this case for us. We really appreciate it.

Hinderaker: Thank you, Virginia.

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