Even After Derek Chauvin, Prosecuting Police Officers Is an Uphill Battle. Why?

SARAH BALDWIN: From the Watson Institute at Brown University, this is Trending Globally. I'm Sarah Baldwin. On April 20th, something happened that we hardly ever see in the United States.

REPORTER 1: Breaking news. We've just learned that jury has reached a verdict in the trial of former Minneapolis police officer Derek Chauvin charged in the death of George Floyd.

SARAH BALDWIN: A police officer was found guilty in the death of an American citizen.

REPORTER 2: Derek Chauvin guilty on all three counts. The former Minneapolis police officer now a convicted murderer.

REPORTER 3: He now faces what could be a maximum of 40 years in prison.

SARAH BALDWIN: Despite the overwhelming evidence against Derek Chauvin, including the infamous video of him kneeling on George Floyd's neck for more than nine minutes. The verdict was not a foregone conclusion. On this episode, we're going to look at why that is. With Nicole Gonzales Van Cleve. She's an associate professor of sociology at Brown, and she spent 10 years working in and studying the criminal court system of Cook County home to Chicago.

Her Twenty-Sixteen book, Crook County offers as good an answer as you're likely to find for why police officers are so rarely charged in cases of police violence. It's an enlightening book. And we get into all the overlapping forces that protect police who commit crimes, including the surprising role prosecutors play in keeping the system from changing. We started though by talking about the readout of Derek Chauvin's charges on April 20th. Here's Nicole.

NICOLE GONZALES VAN CLEVE: In a very emotional moment on April 20th, we heard the guilty verdict on all three charges. And what was amazing is there was almost like a hush that went over the entire world. I felt like for the 10 seconds prior to the jury verdict, you heard the judge make an announcement. The camera zoomed in on Chauvin's face. All you could see was just kind of his eyes going back and forth with the mask over his face. And then they went on every charge guilty, guilty, guilty.

And the judge had every juror say, what they are finding was? And just to hear the percussive guilty from all 12 juries was really emotional and searing moment for so many people who have either protested or been following this case.

SARAH BALDWIN: So I want to talk about the significance of this case in the context of the criminal justice system in America. You know, you've written this amazing book called Crook County; Racism and Injustice in America's Largest Criminal Court. And I think it's really important for people-- just ordinary people to understand, why it is so difficult to charge police officers with crimes, for example, excessive use of force? What is so hard about that? What is the relationship that we don't understand?

NICOLE GONZALES VAN CLEVE: Right. You know, it's such-- there's so many institutions and laws that protect officers from any type of accountability even in cases of murder. I accidentally walked into this research topic, and I know that that's a very strange statement to make. Usually researchers go very intentionally with a hypothesis, but I was studying the court system. And I did that for over a decade in the Chicago criminal courts for over a decade. I was either embedded or doing multiple types of data collection within this large-- the nation's largest unified court system in America.

And it was there embedded in the prosecutor's office that I got to see how prosecutors in some ways deferred blindly to police officers even when suspects were found dead. And the officer's stories didn't make sense. And so that was kind of my first entry point into the system, that was so far from what we're promised in the letter of the law.

And in Twenty-Fifteen before my book came out, this enormous amount of data collection that stretched from when I was an undergrad through getting my PhD through being a young assistant professor. There was a case, the Laquan McDonald case where a young man was shot 16 times. And there was this mobilization by the police force to just cover it up intimidate witnesses at the scene.

They've arrested a father and a son for basically saying that this teenager was murdered on the street, and so they in good faith were interviewing with the police and the police retaliated against them and arrested them and put them in the Cook County Jail. You had police officers tampering with the video evidence from a neighboring Burger King with the owners thinking that the police were trying to investigate a murder. And nothing could be further from the truth.

They were engaging in a type of clandestine cover up, that's part of what we've called the code of silence, which is officers protect officers at all costs. And I think what most people don't realize is that code of silence and violence extends all the way into the court system.

So there's this whole practice and protocol with prosecutors that when they see these cases that are shaded or where the officer is overtly lying--

SARAH BALDWIN: Test the lying, you've said.

NICOLE GONZALES VAN CLEVE: Yes, test the lying. They even have a word for it. They in some ways engage in that cover up. Prosecutors describe putting a blinders on to not question officers. And their description of what it meant to question officers was just downright scary and chilling.

One officer in the sample, he described that he tried to whistleblow and he went up all the chain of command. In the first chain of command, they said what are you a defense attorney, why would you do this? The second chain of command a supervisor threw an ashtray at him, even threatening him and actually acting on some physical violence. And ultimately, he was marginalized in the office and was never allowed to see the chief prosecutor.

So these practices have gone on for generations. And one of the frustrations I've had as a researcher is trying to help the public as well as other researchers to understand that these dynamics are generalizable. There's not something particularly wrong with Chicago, but it's ordinary and its dysfunction.

And so when we fast forward to George Floyd and his death, the first thing that they did, the officers did was say it was a medical accident. They started this kind of shadow legal system we're covering up and creating these narratives that protect themselves, allow this type of murder, this unchecked level of violence to continue. And as we know, the prosecutor in this case, the local one was unwilling to charge Chauvin with murder. So again, we see the same patterns across jurisdiction.

SARAH BALDWIN: I wonder if you could be really explicit about, what a prosecutor's job is? Why are they sort of beholden to the police? What is in that relationship that is interdependent in a way?

NICOLE GONZALES VAN CLEVE: Well, the letter of the law and even the Supreme Court and even the American Bar Association's code of ethics say that prosecutors should pursue justice. It's supposed to be thoughtful. It's supposed to be evidence driven. And the Supreme Court is very explicit about that, as well as the ethical standards within the profession. But yet, we have a system that falls woefully short of those expectations.

And one of the issues is that there's this kind of perverse incentive structure with built in prosecutions offices across the nation. Which is the only way to get promoted is to quote unquote, "win cases and win them at all costs." And that is their definition of justice. It's an organizational definition of justice. It's a marker of who's the best litigator.

And so the problem becomes if a young prosecutor sees a case that doesn't make sense, the evidence is weak. Or if it's a first time offender and the prosecutor says, I don't want to ruin this young person's life. They're in possession of drugs. They're clearly addicted. I will choose not to charge. That is all within their discretion. The problem is that type of prosecutor will never get promoted within the organization.

So as people always ask, where are the good prosecutors? Where the good police officers? They are at a very junior level kind of pushed out of these organizations so they never rise to a leadership position. So without changing those incentive structures, prosecutors are still not rewarded for questioning an officer. And I think that is at the heart of why we've seen so many murders and we've all been so disappointed that the criminal justice system and its courts have been unable to right these wrongs.

SARAH BALDWIN: The one thing we aren't talking about yet that you describe in your book is the racialized aspect of this mistreatment. First of all, why is it important to understand that justice is not colorblind? And how does systemic racism sort of perpetuate this alliance between officers and prosecutors?

NICOLE GONZALES VAN CLEVE: Well, you know, when I started this study, I was not a race scholar. I was not a scholar that even understood theorizing race and racism. And I fully admit that because I think it's an important-- it's important lesson to all of us. Is that if you're a law scholar or a policy scholar, a criminal justice scholar, you tend to study the criminal justice system like it's a machine, right? Like there's bureaucracy and culture and organizational practices.

And we are instructed to kind of assume that the system is race neutral. But walking into the criminal justice system and you see in a court that the whole place is segregated. And there's mostly a divide between who is prosecuting cases. It's basically an all white cast of lawyers and judges and police officers. And basically, a marginalized class of defendants who are mostly Black, Latino, and from the poorest neighborhoods in the city of Chicago.

From the moment I walked in, I can almost feel the racial demarcation of these places. And to then ignore it felt like it was an irresponsible thing to do as a social scientist. In fact, I kept saying, how is everybody ignoring this like I see it so clearly. And so my task was thinking, this place is completely demarcated, structurally, spatially, they used slurs like the word mope, which was basically the n-word kind of recoded in a more colorblind term. And that demarcated a type of defendant. So a defendant with charged with a lesser charge.

So someone like George Floyd, if he would have lived, he would have been prosecuted like a quote unquote, "mope." In the prosecutor's world view, someone who is a mope. It's not worthy of a trial. So George Floyd if he would have lives would have been charged with a low grade crime. He would have been sent to jail to wait trial. He wouldn't have made bail. He certainly would have been forced to plead guilty.

And that assumption then led to this huge percentage of cases, almost 95% of the cases being pled guilty. But at the core of those charges were racial meanings. You couldn't talk about possession of drugs without talking about the racial association because we know that white people, especially upper class white people are in possession of lots of drugs.

I worked in an ad agency and after 9/11 they shut down the entire floor because they found white powder in the bathroom, and people at the time thought it was anthrax. And of course, the Chicago Police came in and no, it was powdered cocaine. And yet in those courts, it's so racialized that it is pretty much the only people targeted with possession, for instance, are Black people. And so the slurs become normalized. They rationalize the slurs as being non-racial.

For violent offenders, they are referred to as monsters and that has in a whole other racialized connotation, which I don't focus on as much. But that is part of the racialized nature of these two extremes. You're either the mope or the monster. But one of my arguments in Crook County is that this is an important feature of the criminal court system and helps these attorneys sort through a huge case volume in a really quick and efficient way.

And so I think that that is the most painful part of this is that the argument is that sometimes these quote unquote, "racist handles, these racial tropes" allow for the type of efficient justice that allows mass incarceration to sustain itself. And I think that's a really troubling finding. But I think it also points to how someone could kneel on George Floyd and kill him so easily.

I think at the heart of those racialized meanings allows for such deep demonization that you don't see defendants of color as anything like you. You can't even see them as being victimized. You can't even see them as dying. When people ask, well, how could this happen? How they do this, right? How did he not see when people were begging. Chauvin, please, stop you're killing him. How could Chauvin not see that he was victimizing someone?

Well, these racial conceptions are so powerful that they do reproduce a type of violence that allows for things that we can never imagine. And I think that's the true kind of horror and all of it.

SARAH BALDWIN: I worry a lot about the psychic toll that this kind of what you have laid out so well, the toll that that must take on an African-American police officer or an African-American prosecutor. The decisions that they have to make must be incredibly brain breaking.

NICOLE GONZALES VAN CLEVE: Right. Well, my friend Paul Butler, he's a professor at Georgetown Law and I think he wrote best on this topic. He was a federal prosecutor for years and he was from Chicago from the areas around the court system that I study. And he went to Yale, he went to Harvard. And so him being a prosecutor was really a badge of great honor.

And I think in his neighborhood he thought, well, I'm superior. I have this great education and he was prosecuting the types of kids that might have roughed him up for quote unquote, "talking white or acting white." And he talks about the struggle between that. He had rationalized the decision to be a prosecutor by saying, he would be quote unquote, "an undercover brother." So he'd be in there changing the system from within, right? He would do this.

And what ends up happening to Paul, Professor Butler ends up getting arrested outside his own home. And arrested on a charge for a random neighbor complains about him, and the police don't believe his story. And he says, listen, I'm a prosecutor to the police. I'm a prosecutor. This is what happened. Hold tight, I understand how the system works and he's pleading with them and they arrest him. And his buddies in the prosecution's office, guess what they do. They treat him like the mopes.

And that prosecutor label does not save him. He actually has to go to trial on the charge. Hire an attorney to support him because the stakes were so high that if he was convicted, his career would be over. He'd be in jail with the same people that he actually convicted. He ends up, of course, exonerated, right? He's found not guilty.

But I think his story was to me the most compelling reason that really shows that these racial labels are so powerful. That even if you are a Black prosecutor, you will always be a Black prosecutor. And to be a prosecutor means that Black person or Latinx person has to contribute to enormous amounts of abuse in the system. So when I was in Chicago, Anita Alvarez, another Latina from the little village area around the jail.

She was the chief prosecutor and she was the attorney-- or the prosecutor that would not charge the officers in the death of Laquan McDonald. And so I always remind people, if you are a person of color in these offices, you can comply. There were people of color on the scene. There was officers that were minorities officers with Chauvin. During the death of Eric Garner, you see minorities officers that are walking around Eric Garner's dead body and not calling for help in a panicked way.

You can participate in enormous amounts of violence within these institutions. So it is both I think psychologically very hard, which I think Professor Butler's account talks about is that you're constantly proving yourself and you're constantly rationalizing. Am I doing the right thing? Am I the actual undercover brother or am I an instrument for incarceration and abuse? And I think it's a really tough. It's a really tough dilemma, because on the one hand, we always say, well, diversity will matter.

But on the other hand, the system is designed with such amounts of violence and unaccountability that it is hard to be a disruptor when you're just one person or you're just a few people. You're expected to comply.

SARAH BALDWIN: And vulnerable.

NICOLE GONZALES VAN CLEVE: And you're extremely vulnerable. So the whistleblowers in many of these cases like the white prosecutor the ash tray thrown at his head. I mean, this is just the tip of the iceberg. I mean, police will harass other officers that break the code of silence. And the threat of physical violence is always looming. It's always part of what makes people comply.

SARAH BALDWIN: You know, this was a particular case. There was a video, there were bystanders, there was death. So I wonder about going forward, can we see this the results of this case the fact that the police chief testified against Chauvin? Can we see this as progress? Is this a flashpoint or is this going to be held up as sort of an exception? What do you think?

NICOLE GONZALES VAN CLEVE: So I think this was a very big flashpoint case. And so I kind of take this case as the anomaly. In some way, it was ordinary. Meaning the police wanted us to ignore this the way they want us to ignore all cases. And we saw that in the mobilization of the life from the moment that George Floyd was killed. That it was a medical incident rather than an act of murder.

So in that respect, the case was kind of normal. There is always a narrative that comes after the misconduct. And the narrative always is in favor of the police doing the reasonable thing. I think we heard that along the trial. What would a reasonable officer do? And the police will make it sound reasonable.

I think what is different is that this case I keep saying was not supposed to happen. Meaning, this case was never supposed to see a courtroom. And if it was up to the local prosecutor, it never would have. And it is up to the police themselves, it never should have gone. And I think what did it was the mobilization of people, and that is something that I had not seen before in my career because I've worked on so many cases.

Since Twenty-Fifteen , I was writing my book and Michael Brown, Tamir Rice, and Eric Garner all died around the same time. I called them the holy trinity at the time because each one broke my heart in a different way. Like a young man that had his whole future ahead of him. Eric Garner, a father and then Tamir Rice, a child. And it was like at every stage of their lives Black men were not safe.

And yet on Facebook and social media, mostly white friends in suburban areas that I linked to on Facebook we're having Thanksgiving like nothing was happening. And so I think what was truly inspiring to me was that something about George Floyd's death at this time made people march in the streets and notice in a different way. And that seemed transformative because as they were seating the jury, it was hard for the defense to find these absolute law and order people that whole cloth believe that police narratives are just fine, right?

It was almost like even the more conservative jurors were kind of starting to question the judgment of officers. And I think that is transformative, which is if we would have more jurors sit on a jury and just start to question whether an officer could lie. That is a transformative concept for many people. I do think that this case has been a flash point. So it is just the charging of the officer is rare. The conviction is rare. I think all of it's rare.

I think what I will caution people is that this is a beginning and not an end, which is I think that if white Americans feel that their eyes are open. They should stay open and say this is a symbol, but it is not the substance. And the substance comes with reform that would change the incentive structures and all the institutions that protect officers. There has been no reform since George Floyd's murder.

Not one thing has been done to prevent his murder, which is why as you cited, there have been three-- since the trial began, there have been about three deaths every single day and that's astounding.

SARAH BALDWIN: You touched on educated jurors earlier, Nicole, and I love this idea of finding a way to educate jurors so that they are not going in with these assumptions that the police officer would never lie on the stand. And I think the key to that is enlightening them about the relationship between the police and prosecutors, and what is motivating them and how they're co-dependent.

NICOLE GONZALES VAN CLEVE: Yeah. I think one of the things that sometimes astounds people who are not in academia is that academics are good at doing the research for their often-- they often stop short of disseminating the research like actually getting it into the hearts and minds of everyday people so that it can change. And I remember when I was getting my PhD, one of my advisors said, she was kind of having a bad day and she said, what is all of this matter? It doesn't change anything.

And as a gender scholar I said, well, a long time ago, they used to ask a sexual assault victims, what were you wearing? And that was an important part of a legal case. And it took both the research and the activism, right? To stop that it didn't matter that sexual assault was a crime of violence, not a crime of sexuality, right? That all happened very slowly, too slowly, but it happened. And it was the work of both academics and activists kind of in partnership.

And one of the things that I've really thought long and hard about is whose side are we on? And I think in our pursuit of being objective in research, we cannot lose sight of the larger principles of humanity and dignity and ethics and human rights. It's OK to ask those kinds of questions. And so one of the commitments that I have is once the findings were collected in my book, I made a commitment to spend one year.

I left it one year. I said one year to educate the public. And that meant op-ed writings, commentary pieces, doing podcast, Rachel Maddow Show, CNN. And I'm going to tell you, my point is always the same, right? The prosecutors are enabling the misconduct there, right? Everything that we talked about today, I am hitting those communication points over and over and over again, because I think over time it does start to change. And the jury that we saw here in Twenty-Twenty-one is different from a jury that we might have seen in Twenty-Sixteen.

And it sure does break my heart that so many people are continuing to die, and it makes me enraged. But one thing that I'm left with is a sense of optimism about the Floyd case, which is you had people believe, especially white people who don't experience the same type of policing as Black people and Latinx people. You had a wide multiracial coalition of people that finally started to see who the real victim was in this case.

And that a police officer can be a criminal, can be a perpetrator. And that is a pattern, a cultural script that we've all seen now. And my hope is that the activism continues to be in line with what we've seen. And I think it takes a lot of work.

SARAH BALDWIN: Well, Nicole, thank you so much for the amazing work you do, and I hope you'll come back on Trending Globally again.

NICOLE GONZALES VAN CLEVE: Thank you so much.

SARAH BALDWIN: This episode was produced by Dan Richards and Alina Coleman. Our theme music is by Henry Bloomfield. Additional music by the Blue Dot Sessions. I'm Sarah Baldwin. If you like us, leave us a rating and review on Apple Podcasts. Or if you have a friend who you think would like the show, tell them about it. We'll be back next week with another episode of Trending Globally. Thanks.

[MUSIC PLAYING]