Former Prosecutor: Chauvin Conviction Is No Slam Dunk - OZY | A Modern Media Company

Former Prosecutor: Chauvin Conviction Is No Slam Dunk

Former Prosecutor: Chauvin Conviction Is No Slam Dunk

By Daniel Malloy

SourceAnn Heisenfelt/


Because there's a winding legal road ahead.

By Daniel Malloy

The video is damning: Officer Derek Chauvin has his knee on the neck of George Floyd for nearly nine minutes as Floyd says, “I can’t breathe,” and then dies. Still, according to Thomas B. Heffelfinger, former U.S. Attorney for Minnesota under both President George H.W. Bush and President George W. Bush, who prosecuted law enforcement officers during his time in office, a murder conviction is far from certain.

On Monday, Heffelfinger spoke to OZY about the case. This interview has been edited and condensed.

How does one get a conviction when prosecuting a case against a police officer?

You have to establish the police misconduct and police use of force was unreasonable under the circumstances. That results in a review of the conduct not only of the officer but also of the victim. For example, if there’s evidence that the victim is resisting arrest or poses a physical threat to the police officer, that has to be overcome because the police are not convicted unless the jury finds that the use of force is unreasonable.

The complaint in Chauvin’s arrest mentions both Floyd’s large size and that he resisted arrest. Is that unusual and does that help the defense?

There are a number of things in this complaint that help the defense. That’s one of the reasons why I think this particular case is going to be challenging. You want to put all the facts in the complaint, and in this case the preliminary autopsy results are an essential fact but they also help the defense. Causation is going to be a challenge in this case, which is unusual in police brutality cases resulting in death.

The Hennepin County Medical Examiner’s preliminary autopsy said there was no evidence of “traumatic asphyxiation or strangulation.” Now the office has declared the death a homicide, as has the Floyd family’s private expert. How does that change the case?  

We are dealing with a battle of experts. There is no reason the defense cannot also put forth an expert.

Does prosecuting a police officer put a prosecutor in a difficult spot?

Not really. I know there are prosecutors who have faced resistance from police departments when they’ve taken on these kinds of cases, but that has not been my experience in Minnesota. I have prosecuted cops as a federal prosecutor. Generally, however, there is a strong sense of teamwork between police and the prosecution, and then there’s the ironic situation when it appears that the public sort of wants it both ways. The public wants police to be held accountable for excessive use of force and that’s why you see Officer Chauvin being charged. But they also want the police to protect them, which is why you saw criticism of the Minneapolis Police Department for not responding more quickly to looting and vandalism going on starting Tuesday night. And prosecutors know that and they work with police to protect the people, but they also will undertake prosecutions when it’s necessary to hold an office accountable.

Is it even more difficult to charge the other cops who were at the scene, as many people are demanding?

The other officers, at least one of them, questioned Chauvin. Well, that’s pretty good evidence that Chauvin knew what he was doing, and it’s relevant evidence for the prosecution. What do you do now if you’re a prosecutor and you have Officer [Thomas] Lane, who has evidence you want to use? You can’t prosecute a cop at the same time you’re asking him to sit on the witness stand and provide evidence against one of his fellow officers.

Now, the U.S. Attorney’s Office and the Department of Justice civil rights division have opened a case looking at all four of these officers, and the FBI will be the primary investigative source. It could or could not result in federal civil rights charges being brought at some time in the future. Those are very difficult charges to bring: They have to prove the officers’ conduct was motivated by racial bias, and that is hard to prove. It’s not intuitive just because one guy’s white and one guy’s Black. It doesn’t mean they’re biased.

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