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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. The defense is now presenting its case in the trial of former police officer, Derek Chauvin, accused of murdering George Floyd. They're expected to present for a very short time compared to the prosecution, ending perhaps as early as tomorrow. Of course, the Minneapolis area, and the country as a whole, are also reeling now from another police killing in the area of another unarmed Black man, 20-year-old Daunte Wright, after a traffic stop.

One of the closest observers of the Chauvin trial and of race injustice in America overall right now is Paul Butler, Georgetown University law professor, former prosecutor, now a Washington Post contributing columnist, and an MSNBC contributor, as well as author of the book, Chokehold: Policing Black Men. Some of you know that Paul is doing a series of monthly appearances here for the early part of the Biden presidency to assess his racial justice initiatives, but for today's appearance, we will talk more about these cases. He also wrote a really interesting Washington Post column yesterday called, How Toxic Masculinity Helped Kill George Floyd. Paul, we always appreciate it. Welcome back to WNYC.

Paul Butler: Hey, Brian it's great to be with you.

Brian: Can we start on your column? What do you mean in this context by the term toxic masculinity?

Paul: Everybody focuses on race and that's appropriate. You cannot overstate the impact of anti-Black bias and structural systemic discrimination on policing in the United States, but gender matters, too. Often, cop machismo leads to what one legal scholar describes as, who's-the-man contests between people of color and the police.

Brian: There's language reference in the context of toxic masculinity that could have affected George Floyd's mental health in the way police spoke to Floyd in a prior arrest. Would you tell that story?

Paul: George Floyd was not a macho dude. He had a series of encounters with police, and the jury will get to see video from a 2019 arrest, where just like in his fatal encounter with Officer Chauvin, when Mr. Floyd sees the cops coming about to arrest him, he burst into tears and he cries for his mother. In the 2019 arrest, one cop tells him, "Dude, act like a man." Often Brian, it's the police who want to perform masculinity by proving their control and power over Black bodies.

Brian: As you know, the defense is using the fact that Floyd called for his mother in that 2019 arrest, to minimize his calling for his mother as a sign of mortal distress, as he laid dying under officer Chauvin's knee. Like, "This is what this guy does so he could have easily been seen to not really be dying of asphyxiation, or not really not able to breathe." What role do you see that playing in the defense's argument?

Paul: If that's the best that they can do, then God help Derek Chauvin. The thing is

Brian, Mr. Floyd died. He didn't die in 2019, and in fact, in that encounter, where he apparently did consume drugs, the police and medics took him to the hospital. They did not arrest him. That's the appropriate way to treat someone who you think might be overdosing on drugs.

Brian: The defense in the Chauvin case did begin to present their case yesterday. How do you see them mostly trying to create reasonable doubt in the minds of the jury?

Paul: The best defense is that Derek Chauvin literally did not kill George Floyd. The defense contends that Mr. Floyd died of an overdose of fentanyl and meth, and also, his serious pre-existing heart conditions. We're now in a battle of medical experts. As we speak, Brian, the defense is presenting its chief star witness, who's a well-known medical examiner, who will support their contention, that it's the drugs and pre-existing health conditions that killed Mr. Floyd.

The prosecution had an army of witnesses making the opposite point, that but for his encounter with Derek Chauvin, George Floyd would not have died on Memorial Day 2020. Really, a battle of extroverts, at the end, the jurors will be told by the judge to use their common sense. I think their common sense will probably suggest that it's not a coincidence that Mr. Floyd died after Chauvin's knee was on his neck for 9 minutes and 29 seconds.

Brian: Listeners, we can take some phone calls for Paul Butler, Georgetown law professor, mostly on the Derek Chauvin trial, at 646-435-7280, 646-435-7280. Let me read to you from a defense-friendly article in the conservative magazine National Review from April 1st. It's almost two weeks ago, and there's been a lot of testimony since, but maybe this is still central to what the jury will hear from the defense and have to account for in their deliberations. Let me get your reaction to this.

The article includes these lines. "Floyd began calling for his mother, and crying out that he could not breathe and was going to die while police were trying to get him to sit in the back of the squad car. Those claims may have been sincere, but if so, they were spurred by what Floyd maintained were his claustrophobia and anxiety over being taken into custody, not by the neck hold in which Chauvin subsequently placed him. What's more--", the article says, "It was not the idea of the arresting officers to place Floyd in a prone position on the street, rather, after propelling his way out of the squad car rear seat, the four cops unsuccessfully struggled to place him in.

Floyd insisted that he preferred to lie down on the street. The police restrained him in the position in which he put himself," and then it goes on to say, "Reasonably convinced that Floyd was high on drugs, a conclusion supported by his erratic behavior, the accounts of witnesses, and later, toxicology tests, the police called for paramedics to take him to a hospital rather than continuing to try to thrust him in the squad car and take him into police custody." How much of that would you say has been factually demonstrated or refuted and how much will the jury be thinking about arguments like that when they reach the phase of deliberations?

Paul: A lot of what you just read is a lie, so hopefully, the jury won't credit those

spurious allegations. Since when do the police let suspects who they're trying to arrest determine where they want to go, and whether they're sitting or standing? The police order people who they are arresting where to go, and what to do. If Mr. Floyd had actually wanted to be on his stomach, handcuffed with Officer Chauvin's knee on his neck, he would not have vociferously complained.

We literally have a video where we hear a dying man narrate his passing. He says, "Please." He says, "Officer." None of it works. Near the end, there's an older gentleman, Charles McMillan, who testified. He tells Mr. Floyd, "Man, just do what they're telling you to do, you can't win," and Mr. Floyd replies, "Man, I'm not trying to win."

Brian: Again, the toxic masculinity, the one-upsmanship seems to be implied there. They only need one juror, as you well know, to vote not guilty, to get a hung jury. From what you can tell, how would you characterize the jury in this case, in terms of what you would consider racially appropriate, or with whatever relevant preconceptions, or tendencies coming into the case, or whatever you think is relevant, as far as you can tell as an observer.

Paul: I think it's a good jury for the prosecution. It's unusually diverse. There are four people who identify as Black, two as mixed race, around seven other jurors are in their 20s and 30s, and people of color. Younger folks are less likely to have the steadfast confidence in the police that older folks and white folks tend to have, or at least many people used to have.

Another interesting impact that we may see in this jury is the national reckoning on race. The death of Mr. Floyd inspires the biggest social justice protest in the history of this country. There was one day last summer, where there were demonstrations in 550 different cities. I just gave a talk, a virtual talk in Butte, and people in that city, in what's probably the whitest state in the country, had protested. I think that a lot of people, and especially a lot of white people have a different understanding of how the police treat Black people than they had at this time last year.

Brian: It's interesting that you bring that up because I think I heard you say on NPR on Sunday that the prosecution is trying to make the point that the police as an institution are not on trial here, it's Derek Chauvin as an individual, and trying to detach from the national reckoning on race, and police behavior that the country is going through. Did I hear you wrong?

Paul: No. It's true that the prosecution has to leave race out of it, because, if it's in fact, the police or the criminal legal process that's on trial, that's not fair to Derek Chauvin. Like any other accused person, he has the right to an objective jury that just considers the evidence in his case. At the same time, the jury was subject to extensive questioning, a 14-page questionnaire before they made it to the courtroom, and then individual questions from both sides.

Every single person had, of course, heard of George Floyd, some of the jurors had actually seen the video, and many of the jurors expressed concerns about whether

the police treat everybody the same. The judge, to his credit, did not let people who had those concerns be removed from the jury. The question that he asked is, "Can you set aside what you think you know and just render a verdict in this case, based on the evidence that's presented in this courtroom?" Every person who is sitting on the jury now said that they could do that in a way that satisfied the judge and the attorneys.

Brian: Do you think that there is something larger at stake for justice in America in this trial than one officer's behavior in the death of one man?

Paul: I do think that if you can't get a conviction in this case, with this quality of evidence, it's hard to know when an officer could ever be held accountable for killing a Black person. The reason why it's tough to get convictions of officers, in most cases, well, there are several. A lot of times jurors think that the person actually did it, but they're sympathetic because police have hard jobs.

The law is biased in favor of cops, and encourages the jurors to look at what happened from the perspective of the police, but often, both those concerns, the concerns of the law, and the concerns of jurors in other cases are because cops often make split-second decisions. Almost every other case involving a cop accused of murder, the officer has shot somebody. That is a split-second decision. That's not this case.

Derek Chauvin had 9 minutes and 29 seconds. Even if some level of force was appropriate at the beginning of the encounter, there's no way to explain the last two minutes, Brian, because at that point, Derek Chauvin knew that George Floyd did not have a pulse, and yet, the knee on the neck continued for another two minutes.

Brian: Derek in Manhattan, you're on WNYC with Georgetown Law Professor, Paul Butler. Hi, Derek.

Derek: Hi, thanks for taking the call. The prosecution, the case is missing what I would think is the most important part of the case is that George Floyd and Derek Chauvin worked together as, I think the proper term would be bouncers, at some type of cafe, or bar, or restaurant previously, and that the owner of the restaurant who I saw in the interview on Kenny TV, fired Derek Chauvin for being rowdy and overly forceful with people, customers who were being asked to leave or ejected, whereas Floyd, when he was asked to get somebody out the bar, would talk nicely to them, and escort them out of the bar, and walk them through their cars.

It occurred to me that Chauvin, and I don't know this for a fact, but it occurred to me that Chauvin may have threatened Floyd way back when Chauvin was fired, and Floyd was praised by this in the same job under the same manager. Plus, the fact that I think his name is Zimmerman, had a show on Kenny TV, is a former Treasury agent, who commented that when he was a treasury agent, they would not arrest somebody for counterfeiting unless they had three bills them, that would be the charge.

Brian: Derek, I'm going to get a response. A few people are calling about this fact

that Floyd and Chauvin actually knew each other previously, where do you think anything pertaining to that has come in or should come in to this case, Paul?

Paul: It's unclear whether they actually knew each other. They did work at the same place, but apparently, they had different shifts. At one point, a old employee had said that there was beef between Derek Chauvin and George Floyd. It turned out that that employee was thinking of another Black man, not George Floyd. The fact is that if we want to think about previous acts by Derek Chauvin, the most relevant are the numerous complaints by citizens in Minneapolis about his policing, but the judge, at this point, will not allow those complaints to be heard by the jury. One risk of Derek Chauvin taking the stand is that he opens himself up to the jury learning of his prior uses of force that crossed the line.

Brian: The caller's last point was about when anybody would even be arrested, typically for something as small as trying to pass a counterfeit $20 bill. I think this also brings us to the police killing of Daunte Wright, because the officer said she fired her gun when she intended to fire her taser, her horrific fatal error that caused the young man his life, assuming that was actually how it happened, as an error, but there is a larger context of the arrest itself and the traffic stop in the first place to consider, too. Would you link these two cases in that respect in some way?

Paul: I would. I would also bring in the Eric Garner case where the police arrested Mr. Garner for allegedly selling one tobacco cigarette in a public park, in Staten Island, and of course, that officer put Mr. Garner in a fatal chokehold. That officer was never charged with a crime. Five years later, he was dismissed from the NYPD. What all these cases have in common is police officers using petty crimes, misdemeanors, and the results being either fatal or tragic, as in the case in Virginia, where fortunately, the lieutenant survived, but with traumatic consequences.

As we look at these cases and think about how we can do better, unfortunately, the best way is to reduce contact between communities of color and the police. There's no reason why there has to be arrest in cases involving counterfeit money, or expired tags, because you could just give folks citations for those kinds of offenses. That's what some jurisdictions are going towards, Brian.

In New York City, thanks to the leadership of Cy Vance, the Manhattan DA, kids are no longer being locked up for jumping the subway turnstile. The Manhattan District Attorney's Office, lead the cops and prosecutors in other jurisdictions in the city to understand that those crimes, that petty offense, the people who were being targeted by officers were young, Black, and next, teenagers. Again, there's simply no reason to lock up a kid for something like that. traffic stop itself for expired tags in the case of Daunte Wright, obviously emerging as an issue in terms of possible bias. One of the respondents to one of your tweets yesterday wrote that Daunte Wright, "Was being handcuffed due to a warrant, and he broke away, getting back into the car, and trying to escape." The writer continues, "Obviously, the cop was completely in error, but it doesn't help to make it sound like the guy was just standing there, and was shot, though."

I see it being reported today in the New York Post that Mr. Wright had a warrant out for his arrest for not staying in touch with his court monitor after he had been released on bail, pending a trial for attempted armed robbery. If that's accurate, how much does it change how people might think of the initial stop or the attempt to arrest him?

Paul: It shouldn't change anything because it doesn't make sense. What that tweet said is that Mr. Wright was trying to escape by going back into his car. I don't get the math there. You don't escape by restricting yourself to a confined space. A lot of times, people don't seem to understand that Black men can, in fact, be traumatized. We are, in fact, traumatized when police do things like point guns at us, or even stop us in dark places or secluded places. Frankly, Mr. Garner was parked in the middle of the day.

At this point, I think it's reasonable for a person of color to assume that you don't know what the police are going to do, so you do things like take out your phone, and start recording, or calling your mother. You literally want people to witness what is going on. I just get tired in these cases of people putting the victim on trial. Mr. Wright did not deserve to die because he had something dangling from his windshield. People shouldn't die because of expired tags. People shouldn't die because they're selling loosie cigarettes in a public park.

Brian: We'll take one more phone call before we run out of time. I see Jane in The Bronx wants to refer to your Washington Post column on toxic masculinity as a factor in the Derek Chauvin encounter with George Floyd. Jane, you're on WNYC with Georgetown law professor, Paul Butler. Hi, Jane.

Jane: Hi. Great. Thanks for taking my call. I'm definitely going to read that article. I'm really struck by the masculinity on display in all of these encounters, and I'm wondering if that's part of the issue. What's the solution? I'm imagining that we have a force of safety officers, not police officers, that would be female, and maybe informed by a Black feminist analysis. What does your guest think of that?

Paul: I think that at this point, the problems with policing are so systemic that we have to think about transformation, not reform. We have to think about ways to keep families and communities safe that don't involve hauling people with guns, and the power to arrest, because often, those folks make things worse, not better. On the way to that transformation, I do think that reform is important because it can literally be life-saving. In my book, Chokehold: Policing Black Men, one of the reforms I call for on the way to transformation is that police departments should be half women.

Women officers, it's proven, are just as effective at making their cases, but they use less force. They de-escalate, and they were doing that before de-escalation was a thing. I know folks are thinking, "Well, what about that officer in Minnesota? The person who used her real gun rather than her stun gun is a woman." Yes, just like there are African American and Latinx officers who shoot Black men, there are women officers who cross the line, but the new reform movement in criminal justice is about being smart on crime. It's evidence-based approaches. Brian, the evidence is that women officers, as a whole, use force much less frequently than male officers. 

Brian: Last question, if I can shift to the Biden administration just for this last minute or so, this is day 85 of his presidency. How much do you think, as we look to gauge how serious he is about what he said, is one of his big four priorities, fighting racial injustice, how much do you think we should be looking at police-oriented policies coming out of Washington? Usually police policy is at the local level, and how much at fighting other forms of systemic racism and the inequalities they produce, as to where we should look to President Biden to bring change?

Paul: All of the above. I don't think we should ask President Biden, "Should you focus on this new issue with the Johnson & Johnson vaccine, or should you focus on what's going on at the border right now, especially with the children who are being detained?" I think we should expect the president to do both. There are a number of manifestations of this crisis in white supremacy, and the anti-Blackness. Policing and the criminal legal process is one. There are many others. I think it's incumbent on the president to fulfill his commitment to make racial justice one of his four principle things that he wants to do while president. I think he needs to get busy.

Brian: By the way, if I can throw this in and come back to the Chauvin case. How would you consider a hung jury in this case, because that's not an acquittal? I keep seeing on television, the analysis, "Oh, they only need one juror to not be convinced of his guilt, to get a hung jury." That would be a big win for the defense. It would not be a conviction, of course, but it would not be an acquittal either. It would mean a second trial, I assume. I'm curious how you would view a hung jury outcome.

Paul: Defense attorneys look at hung juries as victory. I think that's appropriate. The government doesn't necessarily review the case. What it does is to typically see if it can figure out what the issue was, whether it was just one or two jurors, or whether it was a series. In this case, I hope there's not a hung jury based on the quality of the evidence. If there is a hung jury, I think that the prosecution should be rebrought.

We also know that the Feds have an interest in this case. I think the leadership of the new attorney general, Merrick Garland, and especially of the amazing women who are nominated to be a head of the Civil Rights Division and the number three position in the department, Vanita Gupta, if those confirmations come through, I think we'll see a reinvigorated Justice Department. We could see federal, in addition to state prosecutions in a number of these cases in which officers have used violence against people of color.

Brian: Paul Butler, Georgetown University law professor, former prosecutor, now a Washington Post contributing columnist and an MSNBC contributor, as well as his teaching work, and author of the book, Chokehold: Policing Black Men. Paul, we always appreciate it. Thank you so much.

Paul: Always a pleasure, Brian.

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