A Speedy and Public Trial Necessary in Minnesota

      It will take work to assure that Derek Chauvin, Tou Thao, J. Alexander Keung and Thomas Lane receive fair trials. The four Minneapolis police officers are accused of crimes in the death of George Floyd. It will be a rare juror who has not formed an opinion of some sort before the trial.

           But the standard for selecting a juror is not ignorance. The standard is whether a person can fairly and impartially consider the evidence, and, in cases such as these, the highest of high-profile cases, whether potential jurors can put aside whatever they have heard and decide the case based solely on the evidence.

            Sitting a jury in a high-profile case is difficult, but not impossible. Most jurors try to do the right thing for the right reasons.

            As tried in a court of law, the case most assuredly will not be a broad inquiry into the history of race relations in the United States. Jurors will hear neither the hyperventilated claims of an “epidemic” of police violence against people of color, nor the more pedestrian truth, that a handful of unarmed men, black and white, are killed by police each year. Rather, the case will be focused on the State’s burden of proving beyond a reasonable doubt the elements of the crimes charged.

            There’s a pretty good chance that three of the four officers charged will be acquitted. The fourth officer, Derek Chauvin, just might get an acquittal of prosecutors try their case to the television cameras rather than the jury.

            How could Chauvin be acquitted?

            The state has charged him with murder in the second degree. Under Minnesota law that means Chauvin intended to kill Floyd, or that he caused is death during the course of committing another felony. The state may well to argue that he killed Floyd in the course of committing another felony, in this case assault. That's a complicated jumble. Chauvin had the right to use force to accomplish an arrest. Excessive force is not necessarily assault.

            I’ve not seen all of the videos surrounding the arrest of Floyd. What I’ve seen is disturbing. Chauvin has his been on the shoulder or upper back area of Floyd as Floyd complains he cannot breathe. That’s a pretty awkward way to kill someone, especially in broad day light. If I was intending to kill, I can think of a lot quicker and more efficient ways of doing so.

            The medical reports thus far submitted are confusing on the cause of death. Initial reports from the state indicate no evidence of death by strangulation or asphyxia. An autopsy by Floyd’s family concludes that strangulation/asphyxia was the cause of death. Evidence of Floyd’s underlying medical conditions and whether he was intoxicated will have a bearing on what a jury decides as to cause of death.

            It’s possible that Chauvin caused Floyd’s death without engaging in a crime.

            Oddly, Minnesota decided to make its case more difficult to prove just days after first filing the charges. Chauvin was initially charged with murder in the third degree. That did not require proof of intent to kill; it merely required proof of something akin to recklessness – Chauvin was aware his conduct created a risk of death, but just didn’t care. That’s easier to prove than the intent to kill.

            But public pressure to bring more serious charges forced the state’s hand. It substituted the more serious and difficult charge for the less serious charge. That was a crowd-pleasing move that could backfire. The defense will be wise to try to keep the state focused on murder in the second degree. If the defense can keep the judge from charging the lesser offense of murder in the third degree to the jury, Chauvin very well could walk out the door.

            The aiding and abetting charges against Chauvin’s fellow officers don’t make a lot of sense. Under Minnesota law, aiding and abetting requires proof that a defendant “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime." Failing to intervene to prevent another from doing something unlawful is not aiding and abetting. There’s a pretty good chance the case against the three fellow officers will fail without even being presented to a jury.

          Much has been made of Chauvin’s disciplinary history. Odds are, a jury will hear little or nothing about this. Mere complaints prove nothing. The public is always free to complain. A street officer doing his job year in and year out is expected to attract complaints. Few of these complaints ever result in findings of misconduct. That’s because most complaints are unfounded. Folks are never happy to be arrested; many are quick to complain about every perceived slight. Policing is rough and tumble work. It always has been.

            Due process requires that the state prove each and every element of the crimes charged beyond a reasonable doubt. So-called propensity evidence, evidence of unrelated misconduct, is rarely admissible, and, when it is, it is strictly limited. Chauvin’s jury will hear little or nothing of the history of complaints against him. It’s the same rule of law that benefits civilians accused of a crime: delinquencies in child support can’t be used to prove a bank robbery.

            These cases should be tried quickly, and soon. Urban legend, mass hysteria and political pandering are using isolated bits of data to make political narratives out of what little we know about the case. Present the full case, and soon.

           When it’s done, I suspect there will be more acquittals than most folks suspect.


Edited h/t M. Wade

Comments: (2)

  • Trial
    Thanks for your insight Norm. Always love reading the blogs.
    Posted on June 5, 2020 at 8:30 pm by Sue
  • The Loss of Legitimacy
    As usual, your legal analysis is right on, but where we differ is on “weighing the facts”. Of course, the 8:49 minute video will be admitted at trial and it is my opinion, that notwithstanding the juror’s oath of objectivity, no one can watch that video and conclude that Mr. Floyds death was anything other than intentional. Having said that, the news report that two of the officers were training and were only on the job for four days – their novice position should act in their favor and their charges reduced or dismissed.
    Posted on June 9, 2020 at 8:51 am by Raymond Sitar

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