The missing element in the George Floyd murder trial

Visitors at a memorial featuring a mural of George Floyd, near the spot where he died in Minneapolis, Minnesota, on May 31, 2020.

Mark Osler is the Robert and Marion Short Distinguished Professor of Law at the University of St. Thomas (MN), and a former federal prosecutor. The opinions expressed here are his own. View more opinion at CNN.

(CNN)As a former prosecutor and criminal law professor in Minneapolis, I am fielding a lot of calls about the upcoming trial of Derek Chauvin, who is accused of murdering George Floyd in this city. The media wants to know about the charges, the jury selection, the effects of televising the case and what the lawyers might do. No one has asked me about the very thing that makes this case important: The racially disproportionate treatment of Black Americans by the police. The trial will be a cyclone circling around the unmoving mass at its center -- race -- that silently drives the fury around it.

Mark Osler
Criminal trials involve two sides seeking simple goals. The prosecution is working to prove each element of a crime beyond a reasonable doubt. The defense is trying to establish reasonable doubt on at least one of them. That means that unless racial bias is an element of one of the crimes charged, race doesn't often come up in a trial. Chauvin faces second-degree unintentional murder and second-degree manslaughter charges, neither of which require proof of racial bias -- nor could they, since Minnesota's primary hate-crime statute covers only fourth-degree assault.
    That means that the trial, which will be televised, risks being about everything but what made the case the fulcrum of a worldwide discussion on race.
      Focusing on components of the charges at hand, while necessary, risks exacerbating rather than healing the racial divide. For example, it is likely that the defense will hone in on the element of causation -- that Chauvin caused Floyd's death -- and argue that the prosecution cannot prove it was Chauvin's knee on Floyd's neck that killed him. To create doubt, the defense might point to an autopsy report that concluded that Floyd had drugs in his system and use it to claim that a drug overdose was the "true" cause of death. In fact, this claim already served as a basis for a defense motion to dismiss the charges.
        Alleging that Floyd was the reason for his own death through drug use will sound like blaming the victim -- because it is exactly that -- while playing to stereotypes. Understandably, that will enrage people who have watched the many videos of the incident and seen this act as a clear example of racially motivated violence.
        How did we get to the point where the trial of a racially charged incident will probably ignore race?
          It certainly isn't because the US criminal justice system is unbiased. Journalist Radley Balko of The Washington Post has done a remarkable job of compiling the overwhelming evidence of racial bias in our criminal justice system.
          For example, Balko cites a New York Times study of the Minneapolis police that found that while Black people make up 19% of the Minneapolis population, they were the subjects of 58% of use-of-force incidents by the city's police force.
          For those who mistakenly think that statistics like that are driven by nothing more than criminality among the Black population, consider that another study, published in Nature, found that the racial disparity between Black and White motorists being pulled over lessens at night (when police can't easily determine the race of a driver), and that Whites are more likely to be found with illicit drugs when they are pulled over. And several studies have shown racial disparities in arrest and sentencing between Whites and Blacks for the same offense.
          So, what causes the bizarre absence of race as a part of the evidence in a trial like Chauvin's? One main issue is that it is rare for racial bias to be added as an element of a crime. Crimes that fall into this category are often called "hate crimes" and can be difficult to prosecute because they require prosecutors to prove beyond a reasonable doubt that a defendant's actions were linked to a particular bias.
          We rarely make crimes more serious because racial hatred is involved, even though a number of other factors can boost sentences.
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            For example, Minnesota enhances murder charges in cases involving sexual assault or where the victim is a prosecutor, as well as in terrorism cases. But, it does not similarly elevate racial bias cases. Texas, meanwhile, enhances a case to capital murder where the victim is a fire fighter, if there are two or more victims, if the victim is under 15, or in cases of murder-for-hire (among other things) -- but not if racial bias is a motive.
            Outside of the courthouse during Chauvin's trial, protesters will be talking about police violence against Black citizens. Inside the courthouse, though, race will matter little. This jarring contrast risks further damaging our racial divisions, as the evidence and arguments will seem to be ignoring what is most important. An acquittal would be devastating to race relations, and a conviction would do little to heal longstanding harms. As always, big problems are not solved in a few weeks in a courtroom, but through decades of hard work to change hearts, minds and laws.