Jerry W. Blackwell
No stranger to the courtroom, Blackwell, who co-founded Blackwell Burke PA 15 years ago, typically represents Fortune 500 companies in complex civil litigation. But when Attorney General Keith Ellison asked him to serve as a special prosecutor in the Chauvin trial, he felt it was "a calling." He soon gained name recognition as a prosecutor, spearheading the team's medical evidence and delivering the state's opening statement and rebuttal closing argument.
Chauvin killed Floyd last Memorial Day during his arrest for allegedly using a counterfeit $20 bill at a convenience store. Chauvin pressed his knee into Floyd's neck for what Blackwell repeatedly noted was nine minutes and 29 seconds, or "9:29." Floyd, who lay handcuffed facedown on the street, begged Chauvin to stop, said he couldn't breathe and eventually lost consciousness.
Millions viewed a video of the killing shot by a 17-year-old bystander named Darnella Frazier, whom Blackwell interviewed on direct examination at trial. Her footage of a Black man gasping for breath under the knee of a white police officer sparked nationwide racial justice protests last summer. During her emotional testimony, she spoke about the guilt she felt watching someone die and the fear she experienced as a young Black woman.
Blackwell spoke with Law360 about navigating the larger significance of the case and his strategy at trial. This interview has been edited for length and clarity.
How did you get involved in the case, and how did your role change?
I got a call from the attorney general asking if I would agree to serve as a special prosecutor. I thought that my role would be primarily helping them in deciding issues of strategy, themes — the sort of thing that we do in every complex civil case that would be of use to a complex criminal case. Once I put the work into articulating themes, narratives, strategy, the consensus seemed to be, "You ought to be one of the main presenters in the trial."
I most certainly did talk to the attorney general about what a liability I felt I was to him, that if this turns out to be an acquittal one of the first things said might be, "Why would you get this civil guy arguing in this high-profile criminal case?" And I did my best to make my arguments about why maybe you don't want me on the front lines. I said, "No question, if this goes south, I will disappear as in a vapor."
But there's a lot that complex civil practitioners can offer in a case like this. When you have to defend large companies in big litigation, you get used to dealing with tough facts. You will have quite often tough histories, tough documents, tough witnesses, expert challenges, all of which are very translatable into a very difficult criminal case, where you also have difficult histories and tough causation issues to deal with. The approach to it is absolutely no different once you get to the substance of the issues.
What was trial preparation like? Can you describe the scene in the war room?
It really was a phenomenal team. We came from a number of different backgrounds. There were those there from the County Attorney's Office who were prosecutors, there were prosecutors from the Attorney General's Office, but there was also a central member of the team who was in-house counsel from Medtronic.
As it evolved, the team gelled together very well. We did not show up as so many vulcanized states depending on which part of the case you were working on. It was cohesive. The experience in the war room during the trial at least was always strategic and upbeat. We had vigorous debate, no question about it. And it wouldn't be unusual for the civil guy to be on one side and everyone else to be on the other.
What were some of those debates about?
Where are you starting to tell the story, for example. There is a school of thought that says, if you're going to tell the story of what happened on this date in history, you start from the time Mr. Floyd arrived at Cup Foods, and you tell the story going forward. You do all your evaluations from a chronological context.
And so there was a real debate about whether we start there or whether we take it out of order. And as you know, I started with the subdual and restraint on the ground. And having told that aspect of the story, then panned the camera back to the start of the time he was at Cup Foods. That was a huge strategic decision. Given that the trial was ultimately about the use of excessive force, we decided to start at the point where there could be less debate around the unreasonable use of force.
There's not much to say in my view about the use of deadly force on a person not breathing who doesn't have a pulse. Anything else they can argue about. As to whether you should pull a gun as a police officer on a man over a fake $20 bill — I think it's excessive, but then, there's an argument. Did they need to walk him across the street and force him into a squad car? I think it's excessive, but there's an argument.
How did you go about building a case? Did you start with the elements you needed to prove or with the evidence?
It's a tug and pull with elements and evidence. It always starts fundamentally with what's the charge, and what are the elements required for that, and then the facts are constantly being laid upon that skeletal framework.
I will tell you the way that I approach the trial of cases generally: When I formulate themes or a narrative, it's without regard to elements at all. I first want to deal with what is the visceral, moral, get-you-in-the-belly narrative that will matter to ordinary people, to their fundamental sense of right or wrong. And then I want to see what the elements are.
So I start there. And the video is awfully compelling. The man is screaming for his life, and calling for his mother and saying he can't breathe. And you have this impassive-looking officer who continues the same degree of force almost like an anaconda squeezing its prey. I wanted everyone to see and have a reaction to it. In the opening, I wanted to simply be the fixings on the plate, and let the video be the main course. That was obviously the roots of one of the themes: "You can believe your eyes. It's murder."
Were there any moments that surprised you during the trial?
We didn't have any expectation that the bystanders would bring that kind of emotion to their testimony. I did expect that the bystanders would be painted [by the defense] as an unruly mob. And it couldn't help but be noticed, there were a fair amount of Black and brown people in that "mob," which is rather tropeish. And I knew that George Floyd would be painted as an unruly, uncooperative, drug-crazed, scary person.
It was important that we bring in the bystanders and have the jurors on an individual basis confront their humanity; that this concern was being shown by these individuals over a stranger, and they felt this remorse and misgivings a year after the fact.
During the testimony of one of those bystanders, Darnella Frazier, it seemed Chauvin's attorney, Eric Nelson, opened the door for you. He asked her if her video of George Floyd's death changed her life. When on redirect, you asked her how exactly it changed her life, did you know what her answer was going to be?
I certainly knew how deeply this had affected Darnella Frazier. We had talked about that. I also knew there was no way the judge was going to let me permit her to testify about that in direct examination.
So I didn't see how I was going to get it in, until it was overplayed by the defense trying to suggest she was showboating it and was somehow publicizing this in order to make herself an internet sensation, which couldn't have been further from any truth for the kind of pain and anguish this has caused her.
I thought, "Well, it was an unfair characterization, but thank you for bringing that up." He stepped in that one, that was for sure.
Because Ms. Frazier was a minor, video of her testimony wasn't broadcast. Instead, the cameras in the courtroom remained trained on your face as she spoke. I wondered if you felt all the eyeballs of the world on you in that moment or at any point in the trial, and whether that made it harder to do your job.
I took on this case as a cause. It was probably one of the few times in my adult life where it made good sense to me to leap from the diving board first and see if there was water in the pool second. When I said yes, it was one of these moral moments, where every fiber, every cell in my body resonated with this is a time to stand up and be counted without any regard for how it affects you, how you will keep the lights on at the law firm, how it will affect your family. Luckily, my wife said, "You need to do this. We'll sell the house if we have to."
It felt like a calling, so whenever I stood up in court to talk, I felt very calm. Which is hard to explain, given all the eyes that are watching as I experiment in my first-ever criminal trial. Win, lose or draw, my role, my job was to simply give it my absolute best.
The issue of race came up so much during jury selection, but was carefully avoided at trial. Was it difficult to avoid the elephant in the room like that?
This case to me was at a cross-section, at this confluence of elephants. From race, to attitudes about policing, Black Lives Matter, blue lives matter — there were any number of political frameworks that jurors might have had in assessing this case.
What had to be carefully avoided was not making the case a referendum on any of those things. Because to the extent we did that, there's always going to be at least one person who's opposed to whatever that notion is. It only takes one to hang the jury.
I was very careful starting in the opening statement to make it clear that this is not about all policing. "You are going to meet a lot of police officers. These are men and women who take pride in policing." To the extent any jurors have reservations because it means they are somehow opposing the police, I want to try to set that aside. And issues of race — even the Ku Klux Klan doesn't want to be called racist. So if you interject that, then you're off and running again with people's thoughts being fueled by things unrelated to the merits of the case.
We felt the merits themselves were so compelling, we tried to keep it focused on that.
The evidence in this case was traumatic. Were there days during the trial or leading up to it when that felt overwhelming?
It was never easy to observe. We did have the concern that if we overplayed the video, we'd desensitize the jurors to it. Although, leading up to trial, how many times did I see the video? And every time it's just wrenching in the gut to have to watch it. So I particularly felt for the jurors who had to literally see and hear this man die every day.
There is so much in the video that would either discount certain theories about causation or pointed to others as being likely. For example, the anoxic seizure, where the leg twitches involuntarily, is evidence of oxygen deprivation to the brain. So we go to the video again, and show them that moment when his consciousness left him. You see the eyes flicker and that's it.
I didn't know a better way to show jurors what was happening in his body. So we had to show the video, snippets of it, repeatedly to illustrate certain concepts with the use of force and medical causation. But it was never easy. Ever.
What advice would you give to other attorneys prosecuting police for murder?
For my dear sisters and brothers in the complex civil bar, to not simply exclude yourself from a case of this sort. There's plenty of room to play. The medical case that was put on in this trial was right from the book of what happens in the typical complex civil case. It would be right down the alley for anybody who does toxic tort work.
For prosecutors, I found there were all kinds of experts, from toxicologists to pathologists, who were writing in, providing their credentials and saying, "Use me, I will offer my time for free in a case like this." One of the rejoinders from this trial was, "Who has the resources to put this kind of energy into every case?" I think, though, there are those who would offer their services as a way to serve the community in a case like this, if there were a pathway created for them to do it.
And I can't underscore enough the importance of doing outreach to the police departments. Chief [Medaria] Arradondo here in Minneapolis was instrumental in shattering the blue wall of silence in the case. I think there's a conversation to be had with police departments, that standing up against bad policing is very good for good policing, and that it casts a pall on everyone when cops simply go rogue and others say nothing in complicit silence. The most persuasive witness on use of force in a trial of this sort is the other police officer.
You mentioned this was a challenge for you personally and professionally. Can you talk about that a little more?
Like many African Americans, I identify with George Floyd. I know what it's like to be objectified and to be subjected to random violence; that is, when people target you — knowing nothing about you, because of the mutable characteristic of the color of your skin — for awful, harmful treatment. And quite often it's been police. I certainly know what it's like to be stopped for no reason, for them to use foul language gratuitously just to provoke you. And I have friends here in Minneapolis whose grandparents, whose parents, were victims of lynching, who were simply flat-out murdered by white supremacists. Nobody held accountable for it. No one.
[In the Chauvin case,] there was no compassion for someone you're obviously on the brink of killing. And then once the person is dead, to seize upon them to find any comorbidities in their body that you can now use to justify this awful behavior — quite frankly, too often in our court system, that works. And it shouldn't.
And that is why this case — which should seemingly have been a straightforward case, you saw it right before your eyes — had everybody on the edge of their chair for what is really going to happen. We have seen strange things happen under the rubric of equal justice in America.
There are grave issues in society that lawyers in particular can play a significant role in helping to be social engineers. Rather than doing the bidding of Fortune 500 companies that I'm typically acting on behalf of, why not take the same skill set and apply it in the context where there's no one to pay me, but to do it for righteousness' sake?
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
