How Much Is Different This Time?
By John Dorschner
Forty years after a similar police brutality case exploded Miami, we are seeing a highly charged prosecution rushing ahead in Minnesota.
There are some disturbing similarities — the intense political pressure on prosecutors, the rush to indict, the upping charges to second degree murder.
And we’re also seeing some differences — some good, some not-so-good. To name just one: Back in May 1980, it wouldn’t have occurred to President Jimmy Carter to turn the Miami riot into a weaponized campaign theme, whereas our current Very Stable Genius has ratcheted up the conversation to such a level that even right-wing military leaders are complaining that the Narcissist-in-Chief is dividing the country.
I have been thinking about police brutality for a long time. For the past seven years, I’ve looked at the case of six Miami police officers indicted in connection with the death of black motorcyclist Arthur McDuffie. Their acquittal on all charges sparked a riot that killed 18 and caused $100 million in property damage. My research led to a book, Verdict on Trial: The Inside Story of the Cop Case that Ignited Miami’s Deadliest Riot.
In the Miami case, State Attorney Janet Reno bungled the investigation from the very beginning by rushing to respond to outraged demonstrators and media demanding answers. She gave immunity to a cop that the lead detective thought had started the beating. She indicted a cop who didn’t even see the beating: He arrived late because his squad car had a flat tire. The first four witnesses at the trial contradicted each other in major ways, including which cop struck the deadly blows.
After George Floyd died, I wrote posts urging that the county attorney take it slowly in filing charges and not made the mistakes Reno did. Then, when calls intensified to indict the three other cops, I suggested that an independent prosecutor be appointed because a local prosecutor needs to work closely with police officers to make cases, and it’s natural that he might be hesitant to anger his partners in law enforcement.
Another Political Prosecution?
So in steps Keith Ellison, the Minnesota attorney general. He is a politician with national ambitions — such as his campaign to head the Democratic National Committee. That’s far from an independent voice. Still, I was impressed with his statements on Wednesday, dampening expectations well before a trial gets under way: Emphasizing how difficult it is to get convictions of cops in cases such as this. (In fact, I believe he said that the only conviction in Minnesota of a cop charged with killing someone while on duty was a case won by County Attorney Mike Freeman.) During a CNN interview, Ellison added that the defense attorneys were likely to be highly skilled veterans (as indeed happened in the McDuffie case, in which the defense attorneys ran all over the younger prosecutors).
Ellison charged the three cops with aiding and abetting murder. We’ll see how that plays out in the courtroom. He also upped the charge against Derek Chauvin to second-degree murder, which tends to be something of a pattern in these kinds of cases.
Many Prosecutors Turn to Second-Degree
In 1980, Reno charged Alex Marrero first with manslaughter. Demonstrators in front of the courthouse complained that wasn’t enough. Reno’s prosecutors then filed a second-degree murder charge. At the McDuffie trial, the pressure of protesters became a theme of the defense about how Reno made bad decisions to appease a mob. After the acquittals, one juror said that the second-degree charge was an insult to the jurors’ intelligence. In another Florida case, prosecutors bowed to the pressure of demonstrators and the family of black teenager Trayvon Martin by upping the charge against George Zimmerman to second-degree murder. Protesters were happy — briefly. The jury acquitted Zimmerman.
Second-degree murder is a bit of a squirrelly charge, with its definition differing from state to state. In Florida, it means “evincing a depraved mind regardless of human life,” In Minnesota, according to the New York Times, the charge will mean that Chauvin killed Floyd while committing another felony.
“No Video, No Justice”?
In the 1980 McDuffie case, there was no video, no independent witnesses.
Reno immunized three cops who had been at the scene — two of whom had to admit they struck McDuffie themselves, and all admitted they at first lied to investigators. In the Floyd case, thanks to the video and civilian eye witnesses, there’s no need to make a deal with bad cops. What’s more, the McDuffie beating was over with in no more than three minutes. Chauvin had his knee on Floyd’s neck for almost nine minutes — long enough for his fellow cops to make him stop. They didn’t, and so a charge of aiding and abetting a murder seems eminently reasonable.
In the McDuffie case, the autopsy clearly showed that the motorcyclist had been murdered. His skull was cracked with such force that his head must have been on the ground so that it couldn’t snap back and reduce the impact of the blow. What’s more, his hands showed no defensive wounds: He hadn’t been resisting. The coroner’s report demolished Marrero’s defense that he had feared for his life in a fierce fight with McDuffie, but the autopsy information came at the very end of the state’s case, after the immunized witnesses that the defense demolished, setting the tone for the entire case.
The Weird Situation of Warring Autopsies
In Minnesota, there will be weird situation at trial of warring autopsies.
The medical examiner’s office “did not observe physical findings supportive of mechanical asphyxia” and Floyd’s cause of death was listed as cardiac arrest “complicating law enforcement subdual, restraint and neck compression,” according to the criminal complaint, as the New York Times reported.
But then came what the media called an “independent autopsy,” performed by Michael Baden. In fact, he’s one of those “expert witnesses” who invariably reaches the same conclusion: In his case contradicting whatever the official medical examiner decided. In the Floyd case, his examination found that the knee on the neck caused asphyxiation. He does this time after time. Before Floyd, he looked at the death of perv billionaire Jeffrey Epstein, suggesting murder after the official autopsy said suicide.
James Lees — a former cop, former prosecutor, veteran of more than 1,000 trials — provided expert commentary for my book. He says of Baden: “He and Cyril Wecht and one or two other guys form the go-to team when you need to hire an expert to dispute a Medical Examiner…. Baden is now 85 years old and makes a living giving opinions against Medical Examiners. He was the Medical Examiner of NYC in the late 1970s but was fired by Mayor Koch. He then was the Medical Examiner of a suburban county but was quickly fired from that job…. He also specializes now in swooping in and conducting ‘independent autopsies’ very quickly to contradict the official findings so the personal injury lawyers who hire him can announce his findings and begin building public support for their soon-to-be-filed civil lawsuit. This is all so predictable these days.”
Defesne Attorneys Will Find Experts to Say that Drugs Killed Floyd
In fact, Baden may be only the first of the outside experts to show up in the Floyd case. The official autopsy found Floyd had fentanyl, methamphetamines, morphine and cannabinoids in his system, and you can bet the defense attorneys are searching for experts who will testify that this is a toxic brew of dangerous drugs that could have caused his heart to stop.
All of that — and probably much more — will come out in the trial.
Why Do Police Keep Killing Unarmed Black Men?
But the trial shouldn’t be the real issue here. The larger question is why is it that unarmed black men keep dying at the hands of police?
Barack Obama gave a fabulous talk Wednesday about how all this energy now going into protests should be directed at reform — real reform — at the local level, one municipality or county government at a time.
The fact is that way too often cops dispense “street justice” — they get angry and act on their anger. Forty years ago, they smashed Arthur McDuffie with nightsticks and heavy flashlights because they were pissed he led them on a high-speed chase. In the Floyd case, apparently, the cops were angry that he was giving them problems getting into a squad car.
“Minnesota Nice” Police or “Fix the Barrel” of Apples?
It’s being said — a lot — that it’s a surprise the Floyd case happened in Minneapolis, known for its progressive, thoughtful folk. “Minnesota nice” could be the state’s motto. But that doesn’t apply to the Minneapolis police. The head of their police union, Bob Kroll, has come out in favor of the four Floyd cops. In fact, he’s a right-wing Trumpster, who has appeared at a rally with the president, praising the Very Stable Genius and decrying lefty-Democratic softies. Kroll presumably has the backing of at least 51 percent of his union or he wouldn’t be in power — and that means the Minneapolis police force doesn’t have just a couple of “bad apples.”
As Marvin Dunn, a black author in Miami, just put it in a Facebook post: “ ‘It’s just one bad apple’ is often heard in response to excessive use of force by police. But it’s not just “one bad apple” as the president said recently. It is more often the barrel itself. This means if the ‘barrel’ — that is, the policies and practices of a police department and its leadership, the things that guide and hold a department together — are bad, then there will be a lot of bad apples in that barrel. Fix the barrel and there will be fewer bad apples in it.”
Two Week Suspension for Beating an Intoxicated Man
J. D. Tice has a great column in the Star Tribune this morning. The veteran columnist discusses how he’s been ranting for 30 years how hard it is to get rid of bad cops in the Twin Cities. The unions stick up for them, and the cops are guaranteed arbitration if they’re fired. In one recent case, Tice writes, “a fired Minneapolis police officer was reinstated to his job by a state arbitrator. MPD officer Peter Brazeau had beaten a handcuffed, intoxicated man who kicked him, producing what the arbitrator described as ‘a pool of blood.’
“The arbitrator agreed with [the police chief] that Brazeau had violated policy and shown no remorse. But Brazeau had (somewhat strangely) been returned to duty as a ‘training officer’ and had performed well while his case went through channels following the 2016 beating incident. A two-week unpaid suspension would be punishment enough, the arbitrator decided.”
Somehow this system has got to change, and we’ve got to work damn hard to make it change. That’s going to take more than chanting protests in the street — or standing in front of a church and holding a Bible while the cameras click.