Constructing a Murder Case
Legal principles in building the case against the cop who killed George Floyd
In a news conference held yesterday, Minnesota Attorney General Keith Ellison upgraded the charges laid against Derek Chauvin, the officer who had restrained George Floyd until his death. In his statement, Ellison was unequivocal that while he believes they have a case to make for murder in the second-degree, that “winning a conviction will not be easy.”
Millions of Americans will be watching this case as it unfolds, hoping that their ideas of justice will be materialized in the courtroom. As a law student, I have a fundamental belief in the righteousness of law and confidence in the ability of a truly independent and learned judiciary to dispense justice. It is with that lens that I approach this post. Without diminishing the political dialogue that is happening right now, I want to approach this case from a legal perspective, with particular attention being paid to the charges that have been laid against Officer Derek Chauvin of the Minneapolis Police Department.
Blameworthiness Distinguished
Americans for too-long have had to contend with racism in policing and in politics, and it is natural for people to feel anger and to convert those feelings into a massive call for change. The protests across America and the solidarity rallies held in capitals and cities around the globe reinforces the notion that racism isn’t simply an American problem — it is a social illness whose contagion has spread to all corners of the world.
Consequences of heightened social tensions and calls for justice often lead to jumping to unhelpful conclusions, especially in the age of social media. An example of this is found in the commentary that Officer Chauvin should not be charged with third-degree murder, but with first-degree murder (a point to which I will come back to). Anger expressed publicly by people who have little understanding of the law tends to lead to misinformation, misdirected anger and the belief that the justice system simply doesn’t care.
While there is a political point to be made here — namely, whether the legislature includes voices from diverse backgrounds and whether the legislation passed is representative of the will of all citizens subject to it — that is a topic for another article. I approach this legal perspective with the law “as it stands”, which is precisely how a judge and jury will approach the trial of Officer Chauvin.
All of this to say that the first thing we must understand here is that there is a difference between “moral blameworthiness” and “legal blameworthiness”. The law is the arbiter of what is socially acceptable, and while a particular act may be found by the masses to be morally-repugnant, if the law does not recognize it as such, society cannot punish the offender.
Prosecutorial Discretion and the Burden of Proof
One of the dynamics providing for added complexity in a case where death took place while in police custody is the relationship district attorneys need to have with law enforcement in the pursuit of justice. It is one of the chief reasons the Minnesota Attorney General intervened in taking-over this prosecution.
Remember that it is the prosecution, and not the defence, that has the burden of proving, as a matter of fact and of law, that a criminal offence has been committed. The standard, rooted in the constitutional presumption of innocence, is that this proof must be “beyond a reasonable doubt”. For many, these are just words — in law, these are fundamental principles which make the difference between conviction and acquittal.
Prosecutorial discretion is a practical, added-layer of legal protection for the accused, again rooted in the presumption of innocence. This discretion is afforded to the prosecutor in an effort to gauge whether there is a reasonable prospect of securing a guilty verdict. If the facts of a case or if the applicable law make the prospect of conviction impossible, there is little sense in proceeding with the public expenditure and social stigma that accompanies a prosecution.
A prosecutor must first ask a series of questions before deciding whether to proceed with a prosecution, which is summed up broadly in these two categories:
- Is the evidence obtained in this case reliable, credible and admissible in court? Was the evidence obtained by legal means?
- Is a prosecution required as a matter of public interest?
The public interest question is rather clear, but it would be irrelevant if the evidentiary test isn’t sufficiently satisfied. If the evidence is lacking, the impact on the community alone cannot be the sole determining factor as it does little to increase the likelihood of a criminal conviction. Remember, the prosecution must prove their case “beyond a reasonable doubt” as a matter of both fact and law. Let’s now turn to the applicable law in this case.
The Elements of Criminal Homicide in Minnesota
Anyone who has taken a law course in high school will be familiar with the Latin phrases “actus reus” and “mens rea”. They are, respectively, the “act requirement” and the “mental or internal requirement” of crime.
The act requirement of murder is generally straightforward. It requires:
- CONDUCT — the commission of a wrongful act (which is further defined as a voluntary bodily movement);
- RESULT — causing the death of a human being
This is where the prosecution’s burden of proof begins. The result is not in question — Mr. Floyd died as a result of this incident, and this is supported by the autopsies. The legal question will be whether the death was caused by a prohibited conduct. In other words, was Officer Chauvin committing a “wrongful act” in placing his knee on Mr. Floyd’s neck for almost nine minutes.
Even if the act requirement is proven, the prosecutor will also need to prove all of the elements of the “mental requirement”.
A Word on Mens Rea
“Mens rea” is often translated as “guilty mind” in textbooks. I have not referred to this translation because I believe it to be antiquated and a misrepresentation of the state of the law today. The Model Penal Code identifies types of mens rea which do not require a sinister or inherently evil mental disposition for the elements of crime to be satisfied. To illustrate, types of mens rea for murder include:
- INTENTION: A wishes to kill B, and performs the necessary act to see it done — it is A’s wish to see B killed such that if B is not killed, A would consider his/her act a failure.
- RECKLESSNESS: A takes a risk which may result in killing B, but believes the risk to be remote and takes the risk anyway — A does not wish B to be killed, but pursues the risk anyway for reasons A believes he/she can justify.
- NEGLIGENCE: A’s conduct is not perceived by A at all to be dangerous, but nonetheless results in the killing of B — it never occured to A that his/her conduct could be of any danger to B, but the danger was/would be obvious to other reasonable persons.
To this, I would add “premeditation”. It is a more sinister form of intent, but in the criminal law of murder, premeditation is almost always seen as the most blameworthy and carries with it the strictest of punishments.
The Degrees of Murder in Minnesota Law
The State of Minnesota is one of the few states which have a statutory murder in the third degree, and it was this charge that Derek Chauvin was initially charged with. Let’s examine the statute:
609.195 MURDER IN THE THIRD DEGREE.
(a) Whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree and may be sentenced to imprisonment for not more than 25 years.
The charge against Chauvin makes clear that the prosecution does not wish to entertain a line of argument which attempts to prove intent to cause death. There are two areas to dissect here:
“…perpetrating an act eminently dangerous to others”
The prosecution must prove that the act (using one’s knee as a neck restraint, also known as a “carotid restraint”) not only has a causal connection to Mr. Floyd’s death, but that the act was dangerous. Surely, the prosecution will include evidence and expert testimony outlining the brutality and dangers of such a maneuver.
“…and evincing a depraved mind, without regard for human life”
The “and” is a material element. The law requires that the “depraved mind” be present during the dangerous act. This describes the earlier characterization of “recklessness” — Chauvin took a risk in perpetrating an act eminently dangerous to Mr. Floyd, without regard for the risk to Mr. Floyd’s life. Crimes of recklessness, it should be noted, do not need to be proven reckless as to the result, but only to the harm. Recklessness, in other words, can be proven not because Floyd died, but because the officer employed violence.
609.19 MURDER IN THE SECOND DEGREE.
Subd. 2.Unintentional murders.
Whoever does either of the following is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years:
(1) causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence or a drive-by shooting;
The additional, upgraded charge against Mr. Chauvin is that of second-degree murder. The heading “Unintentional murders” makes once again clear that the prosecution does not seek to prove an intent to kill. In this charge, the new material element is that the unintentional death must occur “while committing or attempting to commit a felony offense” other than those specifically excluded in this section. In other words, a second-degree murder conviction can be constructed if the prosecution can prove:
- All of the elements of another felony (see below — 2nd degree manslaughter); AND
- The causal connection between the harm proven from the other felony, and death.
Constructing a Murder Case
A conviction on second-degree murder can be secured if all of the elements of another felony (acts reus, mens rea) can be proven. This can include assault charges or a manslaughter charge.
609.205 MANSLAUGHTER IN THE SECOND DEGREE.
A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both:
(1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another;
We saw that third-degree murder requires the defendant to have been found to be reckless. The manslaughter charge requires negligence. There is general agreement among legal commentators that negligence is less blameworthy than recklessness. Material questions to the interpretation of this statutory provision include:
“…the person creates an unreasonable risk”
The statute says nothing of having any awareness of the risk, only that they create a risk that is unreasonable. While entire books have been written on the definition of “unreasonable”, in this case we will confine ourselves to a broad definition — the risk is deemed unreasonable if it was not foreseen by the defendant, but was obvious to other people. The facts as portrayed in the video (Mr. Floyd’s pleas and saying he “can’t breathe”) will be assessed by the jury and they will determine reasonableness, with proper definitional context from the judge.
“…consciously takes chances of causing death or great bodily harm”
The word “consciously” is deceptive in this case, because it suggests an awareness of the risk. A more appropriate reading of this might substitute “consciously” with “voluntarily”. A negligent act (in contrast to a negligent omission) requires a defendant to act consciously/voluntarily — it does not require an awareness of an unreasonable risk. To illustrate, if I fire my crossbow into the air, directing it into the forest, and I am convinced that there is no one in the forest, I am consciously acting. If my luck is so poor that my arrow strikes my father, who at the time and unbeknownst to me was chopping firewood in the forest at the time, the circumstances are still such that:
- I created an unreasonable risk by firing an arrow into the air in the direction of the forest, believing the forest to be free of people; AND
- Consciously decided to fire, a decision which led to my father being injured by my conscious act.
If manslaughter in the second degree is proven in the Chauvin trial, only then can the jury look to possibly assign the blameworthiness that accompanies murder in the second degree.
Why Not First Degree Murder?
The relevant statute on murder in the first degree is lengthy, and many of the requirements of first degree murder (such as murder while committing sexual assault) simply do not apply. The only provision that could be contested is premeditation:
609.185 MURDER IN THE FIRST DEGREE.
(a) Whoever does any of the following is guilty of murder in the first degree and shall be sentenced to imprisonment for life:
(1) causes the death of a human being with premeditation and with intent to effect the death of the person or of another;
It is possible to charge Derek Chauvin with first-degree murder, but not practical given the facts of the case. The prosecution would need to prove both premeditation and intent. There is no evidence to suggest that Mr. Chauvin and Mr. Floyd knew each other prior to the incident that led to Mr. Floyd’s death, and this alone makes premeditation virtually impossible.
Concluding Thoughts
The anger on display in the streets of America will not be quenched by the application of criminal law principles. Those are political considerations requiring political and civic leadership. A legal analysis of this case might prompt outrage at the protections offered to the officers involved. At law, it must be remembered that these principles are constitutionally-protected, and that the very reason the law is intervening in detaining these officers is found in the fact that George Floyd’s constitutionally-protected rights to life and liberty were taken away illegitimately. The colour of Mr. Floyd’s skin will not and ought not be a material issue at law, but it most certainly is in the sociopolitical sphere. I’ve refrained from expressing a political opinion to keep this post as relevant to the law and the legal affair which will soon play out in Minnesota.
My silence on the moral issue; however, should not be misinterpreted. Far-too-many African-Americans die needless deaths at the hands of law enforcement every year. This is wrong, and requires immediate and measurable change. Equality absolutely needs to be normalized everywhere and in every facet of civilized life. The lawyers and the members of the community involved in adjudicating this case will all have a moral position on the state of society, but must also stay true to the duty they have under the law. If you take anything away from this article, let it be this:
Those attorneys who will be tasked with mounting a defense of these officers will do so with a principled belief in legality, the presumption of innocence, the right to full answer and defence and that of a fair trial. For it, they will likely be criticized, and may even be labelled “racist”. Do not confuse questions of legality with those of morality. Those defense attorneys, if they are good and decent people, will condemn the structures that continue to suppress and violate the rights African-American populations everywhere.