The George Floyd Murder and Next Steps in the Fight Against Police Violence

Dave Scriven-Young (00:07):

Hello everyone and welcome to Litigation Radio. I’m your host, Dave Scriven-Young. I’m a commercial and environmental litigator in the Chicago office of the current Peckar & Abramson, which is recognized as the largest law firm serving the construction industry with 150 lawyers and 11 offices around the us. On this show, we talk to the country’s top litigators and judges to discover best practices in developing our careers, winning cases, getting more clients, and building a sustainable practice. Please be sure to subscribe to the podcast on your favorite podcasting app to make sure you’re getting updated with future episodes. This podcast is brought to you by the litigation section of the American Bar Association. It’s where I make my home in the ABA. The litigation section provides litigators of all practice areas, the resources we need to be successful advocates for our clients. Learn more at ambar.org/litigation. On May 25th, 2020, George Floyd was murdered by Derek Chauvin, a white Minneapolis police officer who pressed his knee on Floyd’s neck for nine minutes and 29 seconds while Floyd was handcuffed face down in the street. After a summer of intense nationwide protests and a three week trial, a jury in Minneapolis delivered a guilty verdict of two counts of murder as well as manslaughter. Minnesota Attorney General Keith Ellison oversaw that prosecution and kept copious notes and journals during the trial, which were later published as a book called Break the Wheel, ending the Cycle of Police Violence. And we’re very lucky to have Attorney General Ellison on the show today to discuss his book as well as his career path. Attorney General Ellison, welcome to the show.

Attorney General Keith Ellison (01:42):

Well, I’m really glad to be here with you. Thanks for having me on, and thanks for your interest in this very important topic.

Dave Scriven-Young (01:49):

Well, I think a lot of people, a lot of our listeners are young lawyers, law students, and really interested in their career path of folks that we have on, and you have a really interesting career path. You started off as a civil rights lawyer spending 16 years as an attorney specializing in civil rights, including five years as the executive director of the Legal Rights Center. So tell us why did you choose that career path and how did you get there?

Attorney General Keith Ellison (02:15):

Well, I started out at a big law firm doing commercial litigation. The folks there were really good to me, they were great folks, and whenever they indulged my interest in pro bono stuff during the day, I would often, I was on the team, the real estate team, so I would do the litigation side of real estate where I’d go to court. Sometimes I had to get possession of the property again and things like that. But I began to see that in a lot of the work that I was doing, that there were people that were tenants, low income people who could really use my help. And so I did my commercial litigation work for this firm, and then I did pro bono work for ordinary citizens who needed the help. I also was able to get the firm to take on a death penalty case.

(03:04):

It happened to be an innocent man named Albert Burrell. He was convicted of a crime he didn’t commit in Louisiana. We went down there, and I’m proud to say that the law firm delinquent in Venom used its pro bono hours to liberate free Albert Burrell. And you can look that up. It’s a great case. But after being at Linus for about three or four years, I really began to remember my true legal calling was in the area of civil rights. My grandfather was a civil rights activist in rural Louisiana and spent his life trying to create equal justice for all. And I felt that I heard that beckoning, that calling, and so I devoted my career to that. I got a chance to be the director of the Legal Rights Center in Minneapolis. I took that opportunity. Yes, I did take a pay cut, but I didn’t mind because I love the work and did that for a number of years. Then went into private practice with some friends of mine and then went into politics. But the bottom line is my career trajectory as a function of people in my family, the people who raised me, telling me that it was my obligation to make a fairer more just world. And so that’s what I’ve devoted my legal practice to.

Dave Scriven-Young (04:24):

And one of the things that I noticed in my practice is trying to find folks that kind of fit with your values to practice with. And I think a lot of law students think about where should I apply in terms of a law firm or an agency or that sort of thing. Did that come into play when you chose the firms that you’ve worked for over the years?

Attorney General Keith Ellison (04:48):

Yeah. Even when I got out of law school, I chose to work at Linus Venom because they were a firm that said, yes, we are a commercial enterprise. We’re here to make money. We do Bill, but we do have a strong commitment to pro bono litigation. And many of the lawyers at that firm had done a lot of great work to advance the cause of justice. They understood that yes, lawyers are entitled to make a good living, but because we are the ones who are guardians of the law and law has so much to do with whether a society is fair or not, that I also picked that firm because it had a commitment to justice and gave me the support that I needed to pursue some of the cases that I felt need pursuing. They insisted that I do my billable hours and put in quality work, but they also wanted me to do my pro bono work.

(05:41):

And that’s why I picked that first firm. I enjoyed the work, I would’ve loved to stayed there, but when the opening for the Legal Rights Center directorship came open, couldn’t turn it down, and I went there because I wanted to use my law degree to do civil rights stuff full time. And that’s what I did. And spent good six years there and then went into private practice again because my wife and I, the babies kept coming, had to put some food on the table. So I went back into private practice, but I did it on a much smaller level. I got four partners and we just sort of pursued the cases of community members who felt they’d been victims of discrimination were facing a criminal charge. And those are the cases that I did, and I love the work.

Dave Scriven-Young (06:33):

Speaking of loving the work, I think one of the cases that is most notable for your early career is that you represented the mother of a police misconduct victim, Ty Nelson. Can you tell us a little bit about that case and how it shaped your perspectives?

Attorney General Keith Ellison (06:50):

Well, that’s an interesting case and I’m glad you picked up on that because when I was at Linus and Venom, that’s when I went to the firm and said, look, a mom of a kid who was shot in the back by Minneapolis police officer, wants us to represent her and the folks at Linus and Venom and said, look, we’re professional trial lawyers. This is what we do, but we normally don’t do these kinds of cases. And so I said, okay, well what do you think about trying something new? And they said, we’re in. And we ended up doing that case and got a very good settlement for that mom for that time. When you look at it, it was 30 years ago. I mean, that case would’ve been 30 years ago now, you would think, well, that settlement’s not enormous, but for the time it was really big and sent a very powerful message and send a signal to the community that Tsel Nelson’s life was important and that people loved him and that his life should not have been snatched away the way that it was.

(07:52):

You know what I tell you? That case was interesting. A lot of people were protesting in the street. A lot of people were out there demanding what they felt was justice and an unjust situation. And I’m proud to say that that big firm stepped up to do that case, and I was proud of my law firm for doing it. I knew that if I wanted to do that kind of stuff all the time, I probably was not at the right place. But that firm Lin was Venom, understood that it was important to do some of those cases, stand up for some little guys once in a while.

Dave Scriven-Young (08:28):

And then you ran obviously for public office. You served for four years in the Minnesota State House, 12 years in Congress, and then you ran for statewide office and became the State’s Ag. My understanding is you are the first African-American and the first American to be elected to statewide office in Minnesota. What were your feelings going into that election? Obviously it’s a very groundbreaking election, but there must have been, I don’t know, feelings of nervousness, feelings of, I don’t know, belonging I guess, going into that election.

Attorney General Keith Ellison (09:04):

Yeah, it’s interesting. Whenever you are the first at anything, you often feel the pressure of saying, well, if I don’t do a good job, is everybody going to judge the community? I come from by how I did, which wouldn’t be fair, but people are people and they do what they do. So that pressure was there, but I got to be honest with you, I just felt like I wanted to be a G. So I ran. I never really factored in the firstness of it all. I just said, I think I could do some good at the ags office. So I threw my hat in the ring and thank God it came out in the way that I was hoping for and was able to get Minnesotans to vote for me. Of course, a lot did not vote for me, but it doesn’t matter to me because I represent everybody and make no distinction between people based on party or anything.

(09:56):

And so yeah, it’s a great job. I would say anybody who’s listening to your podcast know that being a state ag is an awesome job. It is the perfect combination of policy, politics, and law. And if you’re interested in all three, then consider being a state ag. You can do criminal, you can do civil rights, you can do consumer, you can do utility rates, you can do all kinds of stuff at the ags office. And it’s been a wonderful ride. I just got reelected in 2022, and I just really feel grateful to the people of my state for putting me in here.

Dave Scriven-Young (10:37):

Well, let’s talk about the trial that certainly wasn’t interplay between policy, politics and law, which is the Derek Chauvin trial. You were asked to oversee this prosecution directly, and can you tell us a little bit about how that happened and then how did you go about selecting your trial team?

Attorney General Keith Ellison (10:54):

Well, what happened is this awful tragedy occurred. I mean, I think it was early in the morning on May 26th, 2020, and about 4:45 AM is when I get up every morning and my staff told me, Hey, look, watch this video first. And I saw the whole video that everybody else saw. It was horrifying, it was shocking, and I watched it and rewatched it. My wife who’s born and raised in Columbia, I said to her, Hey, you got to see this. She said, what is it? I said, there’s this man. He’s just being killed here by the police officer here. And she’s like, I don’t want to see that. I don’t want to see that. And so this is a young woman who grew up in civil war, so is the hours war on. I called my step and I said, we’ve got to meet. We’ve got to talk about this.

(11:43):

I didn’t know what role we were going to have in the city of Minneapolis, excuse me, in the state of Minnesota. The county has jurisdiction for the crimes that counties and the ag is sort of the backup prosecutor. So it was not obvious to me that we were going to be directly involved. As the week wore on and the protests got bigger and bigger and bigger, the county attorney, Mike Freeman, who’s a friend, said, Hey, look, would you support me? Can we work together? And I said, certainly. The fact is that because of cases that had happened in the past, there were issues of trust. And it wasn’t Mike’s fault. It was just the circumstances of our nation where these things happened and people felt like nothing was done about it. And so I agreed to do the case along with the county attorney, and then the governor called and said, look, I have the authority to appoint you.

(12:38):

Will you refuse the appointment? I’d like to appoint you. And there were different folks calling the governor asking him to appoint me. And I said, certainly, I’ll take the appointment. And he said, well, certainly feel free to include the county attorney. And I said, yeah, I’m going to need his help. And so we did it together, but then I ended up being the lead attorney on the matter. So it was a time in Minneapolis that I don’t think anyone had ever seen before. Of course, these are scenes that were seen in other urban areas. I grew up in Detroit where there was civil unrest due to police brutality. There other cities have seen the same thing, but Minneapolis had not really seen it at this scale. And I think that because I had spent time in the civil rights world, because I had spent time using Section 1983, which some of your listeners will be familiar with.

(13:36):

And because I had been worked with the criminal justice system as a criminal defender, public defender in a privately retained counsel, I knew about the terrain. And so when I got involved, we pulled together a team county attorney was very helpful, my own staff was very helpful, but I recognized that we were missing two things that we didn’t really have. One is a group of people who had prosecuted police officers before. That doesn’t happen a lot, thank goodness. And so there’s not too many lawyers who’ve done a lot of it. So I reached out to a guy named Steve Cher who used to be a US attorney and an assistant US attorney who had done it. And I also knew that medical causation was going to be where the rubber hit the road in this case. So I called on a friend of mine who was in the private bar, and his name is Jerry Blackwell.

(14:28):

His career basically revolved around pressing the interests of Fortune 500 companies. I had been opposite on him on many cases, but I grew to respect him and like him a lot, felt he was a very fair guy and knew his stuff. So I said, Jerry, you need to come consult on this. We need your help. And I said, how much are you going to pay me? How much are you going to charge me? He said, nothing. And he came in and helped out, and he got his whole firm to help. And so we put together the team and grinded every single day, and I led all the meetings. And at the end of the day, we went to trial, we tried to settle the case. We weren’t able to do that. So we went to trial and the world knows the rest of the matter, but it was an amazing moment in American history from the very moment that that tragic videotape was taken by a 17-year-old girl, by the way, to the moment that the verdicts came in, it was just a moment that I don’t think I’ll ever forget.

Dave Scriven-Young (15:31):

Well, and let’s talk about some of the specifics of the trial. And you mentioned the video evidence that seemed to be the most critical element in the trial, although we’ve seen other instances where there have been videos of police brutality and it hasn’t gone the way that you would think. And so what was different about the video evidence in this trial?

Attorney General Keith Ellison (15:54):

Well, I would argue that it was our approach that was different. We started out with the knowledge that you already put your finger on, which is just because you got video doesn’t mean you’re going to get a conviction, right? Rodney King being the most prominent example, but certainly not the only example. Others out there, Eric Garner, for example, Sandra Bland, there’s some video in the Breonna Taylor case, everything but some. And we know that lit video doesn’t carry the day. What you need is a real live breathing witness that a juror can look at and assess their credibility. So we sort of pretended that we didn’t have the video. We put together the fact witnesses, the ons, the bystanders who were there watching everything, registering every emotion. And then we brought in the video to enhance their testimony. But we made a very deliberate decision that we are not going to just hit play and then say, give us our conviction. We put together the witnesses. We thought that the bystander witnesses were more effective than the video because they can talk about what they felt, what they heard, what they saw, the expressions, everything that was going on around him. You really cannot replace a human being witness with a videotape. Now, the tape can sort of show you some of what they saw, but that witness is what’s going to carry the date and what’s going to persuade that jury, in my opinion.

Dave Scriven-Young (17:29):

Well, in this case in particular, I think there were some, it seemed like there were, from reading your book, there were some challenges in jury selection during the trial trial, and certainly that was one of the big issues was making sure that you had a diverse, impartial jury. Tell us about some of those challenges that your team faced.

Attorney General Keith Ellison (17:49):

Well, one thing when you deal with a police officer as a defendant is that the jury will resolve doubts in favor of the officer. That’s just a fact. As a person who really stands for public safety, I don’t really have a lot of problem with that, but I will tell you that we were looking for somebody who could say, I support my local police. I believe in law enforcement, but this officer did not live up to the promises of that badge that he has on his chest. So we were looking for jurors who could do that, jurors who could evaluate science. We were looking for jurors who could understand the medical evidence that was going to come in. And we needed jurors who could understand that a large person also can be very vulnerable. George Floyd was six foot 4, 220 pounds, no fat. And a lot of people might think, well, how can you hurt a guy that big and strong?

(18:45):

Well, the human body is fragile. I don’t care how big you are. And we needed people who understood that as well. So we knew what we needed going in. We know we needed people who were young because young people are a little bit more willing to entertain the possibility that a sworn officer didn’t live up to his obligations as an officer. Whereas older people might be a little, we assumed, we stereotyped, I guess, that they’d be more willing to say, well, I’m not sure. I just don’t believe, I just will not believe an officer. We do that, even if it’s in front of my eyes. So we wanted to have a young jury. Obviously we wanted to have a representative jury from the standpoint of race and sex and age because we needed the jury to, we needed whatever the verdict was, we needed the public to accept that this matter was fairly and impartially evaluated.

(19:40):

So we put a lot of energy into jury selection. Yes, we did use a jury consultant where I’m glad that we did. I think it was worth it. But we had Steve Swisher, who was really a fine lawyer, a former state attorney general. I had to appoint him, especially because he had gone on to private practice, but he had done these matters a lot, and he was wonderful at jury selection. And so yeah, it was a big part of the case. And a lot of times when you watch a TV drama, legal drama, you skip over jury selection. But in state court in Minnesota, you’ve got to have a fair jury. And we took painstaking effort to make sure we got one.

Dave Scriven-Young (20:26):

And so focusing now on the policy question of the ongoing fight against police violence, police brutality, what do you see as kind of the next critical steps in that fight? And you mentioned, I think when we first started talking about how litigators and pro bono taking on pro bono cases is extremely so, what do you think are the next steps in the fight against police violence, either on a public policy point of view or from a legal point of view?

Attorney General Keith Ellison (20:55):

Well, I think we’ve got to come to the understanding that holding officers to the high standards that they have to uphold is not a bad thing. It’s actually a good thing. One of the things that I can tell you is that a lot of police officers have contacted me and thanked me because they’re like, look, we believe our profession is noble. We believe Derek Chauvin did not maintain those noble goals. And so we don’t have any problem with you prosecuting people who commit crimes, whether they have a badge or not. And so that’s one thing, just an attitudinal shift. I can tell you that in the last 20 years, it was just hard to get a jury that would convict even if you could show that the officer violated the law. Now, I think jurors are more willing because they’ve seen enough on video, and I think people know that we’re not doing members of law enforcement any favors if we allow people who don’t respect their training and their badge the way most officers do to stay on the force.

(22:00):

So what I’m talking now is more of a cultural change. I think it would be good if we passed the George Floyd Justice and Policing Act, which is federal legislation, which would help set up a database which would make it so that an officer who had a horrible record could not just leave one department and go to another. I think that we should make sure that the standards in policing are high all over the country. And the George Floyd Justice Policing Act would do that. It would amend the doctrine of qualified immunity, which would make it so that civil actions would not just be dismissed out unless there was a identical case that had already happened, which is what under Harlow versus Fitzgerald, that’s what we’re looking at in terms of qualified immunity. And it would do a number of other good things. The good news is that a lot of local jurisdictions have responded while the federal government has not.

(22:59):

I know in Colorado they’ve changed the qualified immunity doctrine in Minnesota, we have said that we’ve put very tight restrictions on no-knock warrants. We’ve also banned choke holes. We’ve also put in place systems where there’s much more contact between victims of police violence and the Bureau of Criminal apprehension. We make it so that departments don’t investigate themselves so that the police don’t investigate their friends. We’re not asking them to do that. We’re asking the entirely separate investigative agency to do that. So there are a number of important changes that have been made. At the end of the day, I think that it is police, everyday police who are just going to have to make up their mind that people who lash out at people who are confined, use excessive force, are not doing the profession any favors. We want the police profession to be respected.

(24:02):

We want them to have the dignity and honor that they’re due. And some officers individually don’t always maintain that. And those people need to be prosecuted if they violate the law and put out of the profession, if they violate the administrative rules. And that is going to give us not just a higher level of civil rights, but it’ll give us better safety. Because when you have a community that has low trust in their police, they don’t engage police, they don’t respond to subpoenas. They certainly don’t call in and give information. Give you an example of what I mean. The homicide clearance rate in St. Paul, which has a much better reputation than Minneapolis, is around 9%, 90%. So nine out of 10 homicides you’re going to get caught In St. Paul in Minneapolis, it’s 38%. Why is the difference? Because don’t get people really embracing and helping out the law enforcement process because of the alienation connected to these bad relationships over time.

(25:08):

So hopefully we can build that back up because look, people still do murder, rape and rob people, and we do need to have public safety, but we also need to have a respected guardian in place as well. You asked about other things that we’re doing in Minneapolis. I think there is. We got a new chief, his name is Brian O’Hara. Wonderful guy. We got good leadership in that position. That’s important. He comes out of Newark, New Jersey that used to have a horrendous relationship between police and community, and it has gotten a lot better over the last few years. You have very, very few officer involved shootings and you have a much better situation. We’re hoping that Brian can help restore some of the trust in Minneapolis. So there are good things on the horizon, but we’ve got a ways to go.

Dave Scriven-Young (25:55):

Well, lots of things on the agenda, and thank you for your service and for being that guardian of public safety as well. Attorney General Keith Ellison, thank you so much for being on the show today.

Attorney General Keith Ellison (26:07):

You bet. My pleasure. Thank you. Have a great one.

Dave Scriven-Young (26:10):

Thank you to disco for sponsoring Litigation Radio. Disco makes the law work better for everyone with cutting edge solutions that leverage ai, cloud computing and data analytics to help legal professionals accelerate e-discovery and document review. Learn more@ csdisco.com. And now it’s time for our quick tip from the A litigation section. I’m pleased to welcome back Latosha Ellis to the show. Latasha is a litigator in the Washington DC office of Hunt, Andrews Kirth focusing on insurance coverage cases. Welcome to the show, Latosha.

Latosha M. Ellis (26:44):

Thanks for having me. I’m excited to be back. What’s

Dave Scriven-Young (26:46):

Your quick tip?

Latosha M. Ellis (26:48):

So I have just a couple of basic tips on incorporating storytelling techniques into your legal writing, hopefully tips that will help you persuade your audience judges before they even read one word of the law. I wanted to do these tips because I actually am preparing for a panel for the a, a section of litigation insurance coverage litigation committee, CLE seminar in March. So there’s a plug for that. And I’m doing a plenary with judges, and they said that the one thing that they wish they could tell all litigators is to not forget the storytelling in your writing. So here we are. So the first tip that I would like to share is it’s so important for attorneys to humanize your clients as the protagonist, so to speak, of your legal story. The elements of a story are not complicated. It’s a character, a conflict resolution.

(27:47):

And as in any good story, you want to introduce characters early and you really just want to strive to make the client knowable as a person and to just humanize them as real people with real problems. Obviously for corporations, this can be a bit tricky, but it can be done particularly if you focus on the beneficial purpose that your client may serve. How many people do they employ? Do they have services or products that make the world better or things along those lines? So tip one is humanizing your clients as the protagonist of your legal story. Tip two is adding a little human interest for your reader. I know when we’re in law school, we are taught that you need to limit your fact section of a brief, for example, to facts that you intend to use in your argument, and you should be brief.

(28:42):

And I think that’s right in terms of brevity. But I also think that it’s okay to mix in a little human interest just really painting a story that is more than just a two dimensional conflict on paper between two faceless entities. I think that you do have to be subtle when trying to add this human interest, so to speak about your client because obviously if you cross the line and you get too dramatic, the judge may not appreciate that. But even more importantly, if your brief is needlessly long, that may not also be appreciated. But in any event, judges are humans too. And so it never hurts to add a little human interest for your human reader. So tip three is show don’t tell. And I think that this is something that you’ve probably heard so many times before, but I think personally that sometimes the most important and often the hardest part of legal storytelling is to show and not tell, to not cross the line by telling the reader what they should feel.

(29:48):

So in other words, it’s really just showing them the situation and letting them come to that conclusion on their own. And that can be by focusing on actions and statements rather than telling the court that the defendant acted badly or acted poorly. You can explain what the defendant did and let the judges reach that conclusion for themselves. So tip three is show don’t tell. And the final tip, tip four of course, is to end with a bang. I mean, you should try to end your story with a bang, some impactful fact that shows that the equities are certainly in your favor. So those are the four tips to storytelling and legal writing. In no way am I minimizing the importance of obviously having a strong legal argument. That’s important too. But I do think that no matter how brilliant your analysis or how strong your argument, there still needs to be a persuasive piece. And the persuasive force can be the power of the story. And so by using a storytelling technique in your brief writing, you can minimize the importance of the argument section if you don’t have great arguments, but also just tell a good story that will help you win the case and keep you on the forefront of the judge’s mind. So those are my four tips and hopefully you will incorporate some storytelling techniques in your next legal writing.

Dave Scriven-Young (31:15):

Great. Latosha, thanks so much for being on the show today.

Latosha M. Ellis (31:18):

No, thank you and glad to be on the show.

Dave Scriven-Young (31:21):

And that’s all we have for our show today. And I’d love to hear your thoughts about today’s episode. If you have comments or a question you’d like for me to answer on an upcoming show, you can contact me at [email protected] and connect with me on social. I’m at Attorney Dsy on LinkedIn, Instagram X and Facebook. You can also connect with the a litigation section on those platforms as well. But as much as I’d like to connect with you online, nothing beats meeting you in person in one of our next litigation section events. So please make plans to join us at the 2024 Environmental and Energy Mass Torts and Products liability litigation committee, joint regional CLE program in Avon, Colorado, taking place January 31st through February 2nd, join us for eight plenary presentations on hot litigation topics including committee specific content, broader litigation interests and ethics in addition to an agenda of diverse educational sessions.

(32:14):

There, of course will be time to enjoy outdoor activities and network with your colleagues. To find out more and for registration information, go to ambar.org/joint. If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social and invite others to join the show and community. If you want to leave a review over at Apple Podcasts, it’s incredibly helpful. Even a quick rating at Spotify is super helpful as well. And finally, I quickly thanks some folks who make the show possible. Thanks to Michelle Oberts, who’s on staff with the litigation section. Thanks. Also goes out to the co-chairs of the Litigation Section’s audio contact committee, Haley Maple and Tyler, true thank you to the audio professionals from Legal Talk Network. And last but not least, thank you so much for listening. I’ll see you next time