editor’s note: today (6/3/2020) three officers were charged with aiding and abetting murder in the death of George Floyd. And the officer who pressed his knee into Mr. Floyd’s neck was charged with second-degree murder.
Since the entire tragedy has been playing out for only a week, it’s possible to offer a short summary for those who slept through it.
On Sunday, May 24, Minneapolis police answered a call claiming an individual was trying to pass a fake $20 bill at Cup Foods, a small and family-owned business at the same location for over 30 years.
Police confronted a 46 year old African-American, George Floyd, outside the store. The police claim that he resisted them, a claim that is not borne out by surveillance video or by the statement of the co-owner of the store. Floyd was handcuffed with little trouble. After his hands were cuffed behind him, Floyd needed somebody on each side to steer him and keep him on his feet.
When he fell down for the second time next to the police cruiser, Officer Derek Chauvin placed a knee on Floyd’s neck and appeared to settle the weight of his body on that knee. Floyd uttered the words made infamous by Eric Garner, another unarmed black man who died at the hands of New York police in 2014 — “I can’t breathe!” in frantic tones between begging to be let up and at one point asking for his mother. It was determined later that his mother was deceased, as was Mr. Floyd before Officer Chauvin removed his knee.
Witnesses also begged Officer Chauvin to let up, but bystander video appeared to show the kneeling on Floyd’s neck went on for 8 minutes and 46 seconds, with 2 minutes and 53 seconds of that occurring after Floyd was unresponsive. The bystander video appeared to show other officers standing by as the homicide took place, but when more video was released, it appeared that other officers were “helping” hold the handcuffed man down.
At one point, an officer taunts Floyd, ordering him to “get up and get in the car.” Leaving aside the taunting tone of voice, the action ordered was plainly impossible. The first of a number of unusual happenings in the George Floyd homicide is that police executives from around the country did not come forward to opine that the killing was justified.
The next unusual incident was that Officer Derek Chauvin became a former police officer the next day, as did Thomas K. Lane, J. Alexander Kueng and Tou Thao. Lane and Kueng had participated by helping hold the victim down, while Thao stood by and did nothing.
The video was hard to watch, but it nonetheless went viral. Floyd’s family, much of the African-American community, and others who took up the cause were not satisfied with the quick firings. There was no perp walk and no chance of one because Chauvin was not charged.
Minneapolis erupted in outrage that night. Community leaders urged calm and pretty well got it until the sun went down. In this, it was like the demonstrations in Ferguson, Missouri over the killing of another unarmed black man, Michael Brown.
Each night this week, there was more violence. More of Minneapolis burned and more clashes with police happened in other cities coast to coast. The uprisings may have been more about long-standing and simmering grievances with the police in other cities than about George Floyd or a gruesome video that appeared to show a criminal homicide taking place.
What’s to investigate?
When I taught criminal law to undergraduates, I asked them to imagine being a fly on the wall when an individual bursts into the room, pulls out a pistol, and shoots another person dead. Did they just witness a crime? If so, what crime?
“Murder!,” most would claim. Maybe so — but there is plenty to investigate. You have witnessed a homicide, which is the killing of a human being by another human being. That’s all it is. If a convicted murderer is lawfully executed by lethal injection, his death certificate may list the cause of death as “homicide.”
So we need to know if we have a criminal homicide. If we do, it may be anything from criminally negligent homicide all the way to capital murder depending on things you cannot see in a video of the killing. It may also be only an aggravated assault. You cannot tell why the fatal shot was fired or even whether it was fired on purpose. This would be why, in the killing of George Floyd on video, Hennepin County Attorney Mike Freeman’s knee jerked in the direction of pleading for time to investigate.
A less charitable reason for delay is to give Mr. Freeman time to look for an escape hatch. There are very good systemic reasons why a prosecutor should not have to ply his trade against police officers in his jurisdiction. That’s why God made “special prosecutors,” or should have. The police can make a prosecutor look like a Bozo with very little effort, and if the prosecutor decided to give as good as he was getting, the whole justice system would become a tangle of scores being settled.
I’ve lost that policy argument most places, so if Mr. Freeman filed charges before Minneapolis burned down, trying the case would be up to him or his designee. On Thursday night, the Third Precinct — where the four ex-officers had worked — was torched by an angry mob.
On Friday, charges of manslaughter and third degree murder were filed against Derek Chauvin. I do not suggest the fire and the charges were related. That night, there was supposed to be an 8 p.m. curfew, but it was roundly ignored. There was more burning and looting.
The demands are now that Chauvin’s charge be raised to first degree murder and that the other three officers should be charged tout suite. If Mike Freeman is a skilled lawyer, these latest demands are a bad idea. If he’s not, the prosecution is doomed. “We have a difficult burden of proof,” Freeman said. It’s the very same burden of proof that exists in any criminal case, but it would be willful blindness to ignore the thumb on the scales in favor of police.
It’s a stretch to see first degree murder in the evidence so far, but the probable cause needed to file a charge is as light as the beyond a reasonable doubt needed for conviction is heavy.
I’ve never tried a case in Minnesota and I doubt that Minneapolis is representative of Minnesota anyway, but the chances of Chauvin’s conviction — whatever they are — rest in Mike Freeman’s hands. I’ve tried enough jury cases to know that there is art involved, and it would be wisest to stand back and let the artist work.
Juries sometimes want to punish a prosecutor if they sense “overcharging” by a not guilty on all counts. Other juries like to use heavy charges to arrive at a compromise verdict, a guilty on a lesser offense that would otherwise have been a not guilty. It’s up to a professional prosecutor to know how the juries lean in his jurisdiction.
What about speeding up the charges against the other three officers? They have all lawyered up and claimed the protection of the Fifth Amendment. Most prosecutors would want to let them hang there and sweat for a while to see if it’s possible to troll for one to turn state’s evidence. Not necessary, you say? Maybe not, but the other defendants are police officers and a prosecutor would be crazy to dismiss any chance to have a live witness to go with the videos. Freeman should know whether trolling for a live witness might catch something.
The video of George Floyd having the life crushed out of him is so horrible to watch I wish I could un-watch it. Both the firing of the police involved and the first criminal charges came much more quickly than is normal. Is that all justice requires? I should think that the people outraged by the killing would want to see a conviction.
If so, Mike Freeman is your lawyer, like it or not. You can’t fire him until the next election. He has the best chance if you stand back and let him make the tactical calls. If he loses, the reason will be his own bad judgment and not you shoving on him while he’s trying to work. He’s a competent professional or he is not. Stand back from this lawsuit now that it’s launched and the whole country will find out which.
Let it be.
—
Previously Published on medium