A Defense of the Prosecution of Derek Chauvin

with John McWhorter and Keith Ellison

When, months ago, John and I first discussed The Fall of Minneapolis, we didn’t expect we’d still be talking about it today. But the documentary and the blowback it and its defenders have received has spiraled out into something that, while not as significant as the death of George Floyd, the protests and riots that followed, and the prosecution of the officers involved, indicates tempers have not quite cooled. The George Floyd affair blew any number of conflicts wide open—police violence and crime in black communities, systemic racism and cultural dysfunction, public outrage and public order. The list could go on.

The fact that Minnesota Attorney General Keith Ellison wanted to come on the show to discuss all of these issues is yet more evidence that we’re not finished with the George Floyd affair yet, or it is not finished with us. I have no doubt Keith is a busy man, but he carved out time for us on a Saturday morning. Perhaps that’s a sign that partisans in the conflict see it as their job to continue to fight. But perhaps it’s a sign of something slightly more heartening: Direct, civil communication between people with opposing views on one of the most inflammatory events in recent memory.

Neither John nor I agree with Keith on everything—I think you can see that in today’s clip. Maybe we don’t even agree on most things. But he was a major player in the Chauvin trial and he remains one in Minnesota, where some of the major conflicts of our time rage on. If we had passed up the chance to talk to him, we would have missed an opportunity listen and respond to someone who actually has the power to affect things on the ground. You don’t have to agree with Keith Ellison in order to see why that’s important. Maybe we can’t change his mind, but we at least know his mind a little better, and I think he could say the same thing about us.

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GLENN LOURY: We're joined this week by Keith Ellison, who is the attorney general of the state of Minnesota, and who in that capacity oversaw the trial of police officer Derek Chauvin for the murder of George Floyd. Keith has petitioned us to read his book and to come on the show and to talk about it because John and I have had several conversations here about the murder of George Floyd and the trial of Derek Chauvin.

Just to remind you, if you don't know out there in the audience, we interviewed the filmmakers of the documentary film, The Fall of Minneapolis, which is a passionate defense of the police in not only the killing of George Floyd but also in the general conflict between police and community around police violence in the city of Minneapolis. They claim that Derek Chauvin was railroaded and wrongly convicted of the crime that Keith is proud to be able to say he oversaw the prosecution and successful conviction of. What do you want us to know about the trial of Derek Chauvin and the subsequent discussion of it that most concerns you?

KEITH ELLISON: First, I want to say we can discuss anything you want. But to me, it is simply a false statement to say that Derek Chauvin and Thomas Lane and J. Alexander Kueng and Tuo Thao did not, together, kill George Floyd. It is a medical fact that that happened. Derek Chauvin and all of them were amply represented by counsel. They had the full panoply of rights. They won many motions. They brought any expert they wanted to bring in. And we proved beyond a reasonable doubt to a fair and impartial jury that they were guilty of second-degree unintentional murder and third-degree murder, which was later dismissed through the appellate process. But the murder-two stuck.

And so he's guilty of two crimes, and the two lower ones are subsumed within the most serious one. The other three pled guilty. Tou Thao didn't exactly plead guilty, but he waived his right to a trial and submitted all the documents to the judge and the judge found him guilty, which is more-or-less saying, “I'm guilty, but I don't want to say so out of my own mouth.”

They went to trial in federal court, found guilty there. Derek Chauvin was found guilty in federal court and the other three went to trial and lost in federal court. And you guys may know that the jury pool in federal court is like all of southern Minnesota, which is much more rural than Hennepin County, which is where the Chauvin case was tried. Much more white than Hennepin County. And in federal court, the judge does all the voir dire, meaning all the jury selections. So there's no way to really manipulate the jury.

So what I'm saying is you can say that the city should have been better prepared. Fine. You can say that there's a lot of good cops. I actually agree with you on that. But if anybody says that Derek Chauvin is not responsible for the murder and death of George Floyd, Derek Chauvin says otherwise. And if you look at all the evidence that we showed, clearly he is responsible. If you look at Dr. Tobin, the world's leading pulmonologist, Dr. Rich, cardiologist, several toxicologists, it is absolutely clear.

Now, some people think, “Oh he was killed because of the knee on the neck.” That became just a shorthand for what happened. Really, it was not just the knee on the neck. It had to do with the compression of his chest cavity into the concrete, it had to do with the knee on the neck, and it had to do with the fact that his legs were held. Your lungs have a bellow effect—breathe in, breathe out—and you've got to get a certain amount of oxygen into your body. If you can't, you're going to die. And it's going to take maybe no more than five minutes. Long after he didn't have a pulse, they did not do any medical intervention, even though they were trained to do so, and he was probably dead on the scene.

So I just want you guys to know. Did the mayor do all he could have done? I don't know. There's a whole lot of reasons to discuss and debate what happened. But what happened in terms of George Floyd being murdered by Derek Chauvin and Thomas Lane and J. Alexander Kueng and Tou Thao is a non-starter. Anyone who says it didn't happen is deliberately uttering falsehoods for the purpose of disinforming the public. And I know that last thing is harsh, but I believe it to be true.

You can look on YouTube and see. The trial was televised internationally. The only appellate issues that really had any level of viability—they all failed by the way—but the only ones that were even worth talking about was, was the jury exposed to too much pretrial publicity? And the court decided, look, everybody in the world knew about it. There's no jurisdiction you could go to. So if you had to do it, you might as well do it in Minneapolis, if you're going to do it anywhere. You can't legally move to another state. You've got to stay within the state of Minnesota. You're not going to change people's level of awareness, but you may change their attitude about who and what George Floyd deserves, right? You can change the jurors, you can shop for attitudes, but you can't shop for impartiality, because everybody saw it.

JOHN MCWHORTER: Keith, this is a genuine question. All of that is clear. You can't deny any of it. Had Chauvin done that neck thing on lots of other people before?

KEITH ELLISON: Yeah, he did, but they didn't die.

JOHN MCWHORTER: Okay. So the other people didn't die. And so I think, therefore, we know that not only was it unintentional, but he would have been very surprised that it had that result. He was responsible, certainly, but he had done it before.

This is the other thing I want to mention. I see all of this as a conversation that has played out, where Glenn and I saw that documentary, and it turns out that the documentary was misleading in many ways. That seems quite clear. But it was also very well-made. It was a brilliant argument. It was like Ciceronian oratory. They did a good job of what they were trying to do.

KEITH ELLISON: But John, isn't good propaganda always high quality?

JOHN MCWHORTER: Yeah, they did it. And so then we talk about it and you find out and you bring us more evidence, like you bring us the real deal and both of us say, oh, wait a minute. And so then, you have this battle between Coleman Hughes and Rodney Balko, etc. We've been learning truth, but frankly, in that very well-made documentary, especially when it turns out that Floyd said, “I can't breathe” long before he was anywhere near the ground, that's a very complex moment. Like, when somebody makes a play about this, I hope that they include that. Because it looks like he was using that as a line. It's become a line since Eric Garner. But it could also be taken as that he was practically suffocating while standing up.

I make no apology for having been distracted by that. And now you have given more truth, but there was nothing wrong with me and Glenn talking about it. That's my feeling. Anyway, go ahead.

KEITH ELLISON: And John, let me tell you, I'm not on your show today to tell you how wrong you were and how bad you are. I'm here to say you heard that side, now hear this. And this is a testament to your fairness, quite honestly. As I was telling Glenn before you were getting on, you must know that I'm familiar with Liz Collin. I don't know the other gentleman. I don't know Mr. JC Chaix. But I do know Liz Collin because she's married to a fellow by the name of Bob Kroll, who's the former head of the Minneapolis Police Union.

Let me tell you how I met her husband, Bob Kroll. When I was elected to Congress in 2006, he was talking to a group of police officers. Only police officers in the room. And he says, “The people in Minneapolis are pretty dumb. We're at war with the terrorists and they just elected one to Congress.” A black woman by the name of Gwen Gunter raised her hand and said, “Are you saying that Congressman Ellison is a terrorist?” And he goes on something about, I didn't mean it that way, I didn't say it that way, but he is one of them. And it ended up being that Chief Dolan has to apologize to me publicly.

So what I'm trying to share with you is Liz Collin is clearly not just conservative. Because conservative could well be interpreted to mean you believe in the old, tried and true ways. You believe in what your mama taught you. Save your money, be honest, all that. And that's cool. And that's who raised me. My dad was conservative in that way.

Liz Collin is what I call like a new conservative. Really hostile and suspicious of anything black people are trying to do, can't see police misconduct from what I can see, can't imagine that there's such thing. I just want to tell you, I know too many good cops to try to broad-brush them all. But I also believe that we should have high standards for policing and we should fire bad police and we should criminally prosecute criminal police. And I don't think she believes that. I don't think she thinks any such thing as that exists. Her husband had about 27 some excessive force complaints against him, some pretty bad. And yet, she's totally comfortable with that, apparently, and so she makes this movie. You guys may not know all that background, but I know it.

I know it now. I didn't know it at the time. I know it, in part, thanks to Radley Balko's extensive coverage of this. I didn't know it at the time

KEITH ELLISON: Let me tell you guys, it is true that we have rape, murder, and robbery going on in our streets and community. We have too many shootings. We do rely on members of law enforcement to help maintain safety. That includes prosecutors. I'm a prosecutor. But we also have people who don't live up to the standards of the job, who abuse their authority, who abuse it on a racialized basis. Sometimes, not all the time. We are aware of what happened to Tyre Nichols. And there's nothing wrong with saying that we should have high standards in policing and that people who don't want to adhere to the standards of that badge should not be in the field.

JOHN MCWHORTER: Keith, just for the record, I get it. Why do you think the people in question are doing all this raping and looting and all this stuff? Is it white people's fault? This is a sidebar. What do you think? Because you see it

KEITH ELLISON: White people do most of the raping, looting and robbing and shooting in our country.

JOHN MCWHORTER: No, in a black community, not just numerically. Why are they doing that?

KEITH ELLISON: I think there's a few elements. And it does go back to the universal, John, for me. Why did Bernie Madoff rip off billions of dollars from thousands of people? Because he wanted to. It's the malevolence of the wicked heart. At some point, that is the explanation for black crime, white crime, Asian crime, any crime. But I would say that when it comes to the black community, to me, I can't get through 250 years of slavery, a hundred years of Jim Crow, 60 years of disparity. Don't tell me these events are not related to each other. Sometimes what you have in the black community is over-policing. So for example, there are whole states where no white person was ever charged with crack. None. So now we want to say all the the black folks are into crack. Whoa. The CDC says that everybody uses dope, but you only look for drug addicts in this neighborhood. Now that is a driver.

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Let me also say that Black people are overwhelmingly represented in the exonerated, John. What does that mean? That means there's a lot of black people convicted of crimes that they didn't commit. Think of the Central Park Five. John, hold on. I'm not saying black people don't commit crime. I'm saying black people commit crime for the same reason everybody else commits crime. But I'm also saying, given our nation's racial history and past, that we are also unfairly targeted for police law enforcement, particularly in the war on drugs.

Just use rape for a minute. How many black men between 1865 and 1925 actually raped some white women?

JOHN MCWHORTER: One? I don't know.

KEITH ELLISON: They didn't. So that's what I'm saying. I'm saying that part of why you have black criminality is just, some people don't care about others and they only care about themselves.

JOHN MCWHORTER: Keith, very quickly. What I fail to understand, and I really mean it's something that always perplexes me. I hear everything you're saying. You are more moved in your gut by Liz Collin and Derek Chauvin and the kind of discrimination that you're talking about, that moves you more than the fact—and I'm sure you're aware of this fact. Yes, there are evil people everywhere. But in the typical American city where there's a significant number of black people, black men commit a vastly disproportionate number of homicides. Vastly disproportionate. Mostly upon each other, but that doesn't exonerate it. The issue is not white people kill white people and black people kill black people. Why do black people kill so many black people?

It seems to me that doesn't bother you very much. I'm politely asking you why?

KEITH ELLISON: No, let me just tell you this. I think that you're incorrect about that. There's a difference between law enforcement committing murder and private citizens committing murder. What's the difference? One is, one has the imprimatur of the state and the other is a criminal who, let me remind you, bro ...

JOHN MCWHORTER: I've never understood this argument. I don't get it. Maybe I lack legal training. It's always “imprimatur.”

KEITH ELLISON: You don't need legal training. Take a line from Ghostbusters. If a private citizen commits a crime, who you gonna call? The police. What if the police commit a crime? Now you're calling on the agents of the state who have a responsibility and obligation under the fourth amendment. And so it is to me more negatively impactful.

JOHN MCWHORTER: Ms. Jackson doesn't care about that when her son gets killed. I don't get it.

KEITH ELLISON: You're asking a good question, but that's not the question. You're asking me why is it that one kind of current killing gets attention and another doesn't get nearly as much. But here's the thing, John. You don't live in Minneapolis, so what you don't know is that I prosecute murderers all the time, man. Every day and all the time.

JOHN MCWHORTER: Your heart doesn't seem to bleed.

KEITH ELLISON: How do you know, though, John? Here's the problem.

Tell us, then. Because John is talking about affect. He's talking about passion. He's talking about leadership. And when you're facing such violence in our own community, committed by our own people, we look to someone like you, an African American elected official, to frame that issue in a way that puts some responsibility on the community to address what's going on among ourselves, regardless of whether or not it's caused in some long historical story, by slavery and Jim Crow and whatnot. And how do you react to that?

KEITH ELLISON: I'll be happy to react to it. But if you ask me why people are dying at the hands of law enforcement, we have an obligation to safeguard those same people. And why I have another kind of emotional reaction when a private citizen commits a crime against another private citizen, the answer is one has a systemic problem with solving, and the other does not have a systemic problem with solving.

You know what? If you guys got any kind of ability to search anything right now, search the name Zaria McKeever. You can look it up right now if you're able. What you'll find is that a man who was an adult organized two teenagers to go into the home of his ex-girlfriend and [mother] of his child, and he organized them, supplied them with guns, gave them a ride, gave them clothing so they could obscure their identity. They broke into her house and they were looking for the boyfriend to harm. He ran out of the back. She tried to calm the two guys down, 'cause the two shooters were after the boyfriend. And they shot her six times and murdered her.

Now the local prosecutor was going to say, because juveniles don't have enough brain development, we're going to treat them within the juvenile system. I listened to the victim, I listened to the family, I listened to the black churches, and I went to the governor and I said, “Governor, you have the authority to hand me this case. Hand me this case.” And I took that case and we're prosecuting those people right now.

Now, you guys don't know about that case because you're not from Minnesota. But listening to what happened to that family and that wonderful young woman is moving me forward from an emotional point of view. I took that case, got myself in trouble with a bunch of other prosecutors because they don't like the AG taking their cases. And I don't plan on taking their cases, but that case I could not abide. Look, if that case would have went down, if that kid would have got 18 to 24 months of juvenile, he would have been in the line at Target with that girl's father in a short period of time. He represents a terror to the community, to the family. I took that case, I prosecuted it.

I want to ask you about policing again. Because one of the things that really did strike me about that documentary, The Fall of Minneapolis, was their accounting of the burning to the ground of the 3rd Precinct headquarters and of the demoralization that had on the cops.

And of course, Keith, I agree with you: Bad cops need to be held accountable, full stop. Nothing else to say about that. They're subject to the law just like anybody else, and more power to you for enforcing the law against bad cops when the law so requires. But the morale of the police department is not an insignificant thing. Letting that police station be burnt to the ground was a horrible thing for me to witness, and I just wonder how you feel about it.

KEITH ELLISON: Yeah, that was extremely unfortunate. It was horrible. And it definitely shook a lot of people in Minneapolis to see that.

JOHN MCWHORTER: These people keep telling me it wasn't burnt to the ground. What are the facts on that? I really don't know.

KEITH ELLISON: It was burnt to the point where no human being could survive if you were inside of it at the burning. We'll put it like this. Are there some bricks standing on top of other bricks? Yes. But it was burned beyond any and all functionality. You can't rebuild it. It wasn't like there was a fire in one or two rooms. They burned it down.

But I will say this. The people who did it were prosecuted and are serving sentences now. That is extremely important. And I don't think any of them were black. Maybe one of them was, but several of them were not. And some of them were not even from Minnesota. This situation attracted extremely negative people who wanted to foment pain, suffering, and crazy and chaos.

I think they wanted to do it for a lot of reasons. But one of them was, the peaceful protests of what happened to George Floyd, in my view, was righteous. How do you tarnish the peaceful, first amendment-protected, raising of voices to say this abuse of government power is wrong? You infiltrate the group, and you do things that the group will be held responsible for.

You're saying pro-police elements infiltrated the anti-police mob?

KEITH ELLISON: No. Okay, thank you, because I don't think the Boogaloo Boys are pro-police. I think they're pro-chaos. You follow? Let me be clear: No way I'm saying that these people were in favor of the police. What they're in favor of is fomenting chaotic, crazy situations.

So they're anarchists.

KEITH ELLISON: You know what? I know anarchists who would never do anything violent like that. But yeah, I would say that they are people who want disorder. And let me just tell you this whole “defund the police” thing, which I was never for, I was going to get to that. Let me just jump the gun. Let me tell you, Mike Johnson, you know who he is?

He's the mayor of Dallas.

KEITH ELLISON: He's speaker of the House of Representatives of the United States.

Oh, that guy. Okay, sorry. Yeah.

KEITH ELLISON. The other Mike Johnson. He wants to cut the ATF, the FBI, and the DOJ. Is he “defund the police”? I think he is. Let me tell you, defund the police was an unfortunate term used by some—hear me out now, Glenn, before I lose you. In the wake of the murder of George Floyd, there were some very angry young people who I believe had a reason to be upset. And they used some, I think, irresponsible language, which then got weaponized into some national rhetoric.

I don't know one Democratic politician who ran on the banner of defund the police. Why? Because it's stupid, right? Now, I will say that we should pay care to the budget of the Department of Recreation, education, school lunches, after-school programs. If we cut all those programs and send the money to the police department, we're not doing the upstream preventative work that we could be doing.

So there is a budget conversation to be had about what's the proper allocation, right? But defund the police was dumb, is dumb, and mostly it was blown out of proportion by the right wing. I was in Wisconsin. They were accusing Mandela Barnes of defund the police. I'm like, what? So it got politicized to a very high degree.

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