Tuesday Talk*: The Floyd Settlement

It was, to be blunt, astounding.

The City of Minneapolis agreed on Friday to pay $27 million to the family of George Floyd, the Black man whose death set off months of protests after a video showed a white police officer kneeling on his neck.

On the one hand, there is a strong likelihood that this suit would have been dismissed on the basis of qualified immunity, as the use of common restraint techniques, permitted under departmental policy, seems highly likely to fall below a clearly established violation of constitutional rights, if, indeed, it’s a violation of constitutional rights at all. That it resulted in death isn’t the test, a detail that many will find unacceptable but is nonetheless the law.

On the other hand, the amount of money agreed upon is, well, breathtaking. As any lawyer who handles wrongful death cases will tell you, there is no rational basis for this huge number. Future earnings? Pain and suffering? Loss of consortium? Contrary to popular belief, the damages aren’t just random numbers plucked from the sky. At least they didn’t used to be.

Mayor Jacob Frey called the agreement a milestone for Minneapolis’s future. Ben Crump, the civil rights lawyer who is among those representing Mr. Floyd’s family, said it could set an example for other communities.

“After the eyes of the world rested on Minneapolis in its darkest hour, now the city can be a beacon of hope and light and change for cities across America and across the globe,” he said.

The attorneys typically get a third of the settlement. I would see a beacon of hope and light too if I was Ben Crump.

But what about the timing of the announcement of the settlement in the midst of jury selection in the Derek Chauvin prosecution?

Eric Nelson, the attorney for former officer Derek Chauvin, said he was “gravely concerned” about the timing of the settlement, which came Friday in the middle of jury selection for the case.

“The fact that this came in the exact middle of jury selection, it’s perplexing to me, your honor,” Mr. Nelson told Judge Cahill on Monday morning.

Perplexing isn’t the way I would have put it. While the settlement has nothing, absolutely nothing, to do with the criminal case or the evidence against Chauvin, that doesn’t mean it won’t have a significant impact on the potential jurors.

The woman, who told the court that she lives in the Third Precinct area that was damaged by rioting, said she turned on the radio on Friday and inadvertently heard news of the $27 million settlement with Mr. Floyd’s family.

“When I heard that I almost gasped,” the woman said. “I would like to think of myself as somebody who tries to be impartial but I’ve just been exposed to so much information and when that happened it leaned me so far to one side over the other that I couldn’t say under oath that I would be able to take that out of my mind.” She was dismissed by the judge.

This potential juror was honest about it. Many are not. They may believe they are. They may want to be. But they aren’t. And then there are the jurors who want to be on the jury, who want to make sure justice is served, whichever flavor of justice they prefer. They may lie about it. Jurors do that sometimes.

But what’s Judge Peter Cahill to do about it?

Judge Peter Cahill, who is hearing the case, said jury selection would continue in the wake of the settlement, but said he would consider the motion to delay the start of the trial, which is currently set for March 29.

Delay? Maybe the jurors will forget all about it? To be fair, Eric Nelson didn’t contend that the announcement of this settlement was deliberate, a nifty move designed to prejudice the jury against Chauvin by creating the appearance of an admission that George Floyd was murdered while Derek Chauvin happened to be on trial for murdering him.

“I wish people would—city officials would stop talking about this case so much, but at the same time I don’t find any evil intent that they intended to tamper with this criminal case,” Judge Cahill said. “It’s unfortunate, and I wish they hadn’t done it, but I don’t sense any evil intent in the timing.”

If wishes were horses…but I digress. Was the timing of this announcement done with “evil intent,” or did it merely happen to coincide with jury selection in Chauvin’s case? Judge Cahill’s “sense” is both meaningful, since he’s the judge, and meaningless since being a judge gives you no magic ability to “sense” facts that either are or are not, based on evidence. Does it raise enough of an issue that it was designed to infuse bias into the trial and deprive Chauvin of a fair jury?

Whether Chauvin is guilty or not is what trials are for. If a jury returns a verdict of guilty, then he is because that’s the system we use to decide such matters. As of now, he is not guilty, because every defendant is innocent until proven guilty. But the jury’s verdict is to be based on evidence rather than influence.

Did Minneapolis just puts its thumb on the scales? Even if it wasn’t deliberate, was it sufficient given the timing to deprive Chauvin of a fair and impartial jury? What should Judge Cahill do now, when scuttling the trial could well cause riots that would burn down a city, but proceeding means he’s sold his soul to the mob?

*Tuesday Talk rules apply.