It will not be difficult to prove to a jury that former Minneapolis police officer Derek Chauvin killed George Floyd. It could, however, be difficult to prove beyond a reasonable doubt that he intended to kill Floyd.
This is what prosecutors must now prove, since Minnesota’s Attorney General Keith Ellison raised the charges against Chauvin from third-degree murder and manslaughter to second-degree murder.
The escalation of the charges is being met with cries of approval from those who would like to see Chauvin serve more time in prison. They are right — Chauvin murdered Floyd, and he must suffer the consequences. So must the other three cops who are now being charged with aiding and abetting Floyd’s murder.
The problem is that the charges brought by the state do not determine guilt, or how seriously the state treats a crime. Legal charges act as definitive standards, which means they set the parameters for criminal acts and the evidence prosecutors must provide to earn a conviction. And the price of getting it wrong, of prosecutors over-charging and failing to produce the evidence, is that the perp walks.
Under Minnesota law, third-degree murder is defined as causing the death of a person “by perpetrating an act eminently dangerous to others and evincing a depraved mind” without regard for life or intent to kill. A conviction on this count carries a prison sentence of up to 25 years.
Second-degree murder, according to Minnesota law, is charged when the defendant intentionally kills someone, albeit without preparing to do so ahead of time. (Premeditation would warrant a first-degree murder charge). The maximum penalty for second-degree murder is 40 years in prison.
Again, it’s easy to understand why a second-degree murder charge is more appealing. If Chauvin is convicted on second-degree murder charges, he will likely serve a longer prison sentence, as he should. But Ellison is taking on a heavy legal burden, because prosecutors must now find evidence that Chauvin actively intended to kill Floyd.
They may succeed. The viral video of Floyd’s death shows Floyd pleading with Chauvin and begging him for air while bystanders repeatedly warn Chauvin and the other officers present that Floyd is suffocating. It’s hard to watch that video and walk away unconvinced that Chauvin knew what he was doing.
It’s also important to note that in Chauvin’s case, the third-degree murder charge might be just as problematic as a second-degree murder charge. The Minnesota Supreme Court has ruled in the past that “depraved mind murder,” which is what a third-degree murder charge entails, “cannot occur where the defendant’s actions were focused on a specific person.” In Chauvin’s case, his actions were directed at a specific person: Floyd.
In the Daily Signal, Amy Swearer makes the case for another viable option: the unintentional second-degree murder charge. This charge would require prosecutors to prove that Chauvin unintentionally caused Floyd’s death while committing another felony offense. Because Chauvin used excessive force against Floyd, he could be charged with first- or third-degree assault, Swearer argues. If the prosecutors can tie this assault to Floyd’s death, Chauvin can be charged with unintentional second-degree murder.
Ellison has not yet commented on the elevated charges, but this could well be what he has in mind. Either way, whether Chauvin faces charges for second- or third-degree murder, he will almost certainly serve time, and Floyd’s family will see some measure of justice.
And to those concerned that Chauvin won’t serve enough time, there is always the chance that he could face additional charges. All four officers could face federal charges for violating Floyd’s civil rights. This typically accompanies an acquittal in state court first — see, for example, Rodney King’s case in Los Angeles in the early 1990’s — but given the U.S. Justice Department’s current probe into Floyd’s case, there’s a good chance the DOJ will choose to take action regardless.
I’m glad Minnesota and federal officials are taking this case seriously. What happened to Floyd was despicable and must never happen again. So let’s make sure that the charges brought against Chauvin stick.
