New Charges in George Floyd Killing

Balancing social justice and criminal justice in a politically charged environment.

In the wake of massive demonstrations, the three officers who stood by and did nothing have now been charged. And new charges have been stacked atop those already filed against Derek Chauvin.

The Minneapolis Star-Tribune (“Attorney General Keith Ellison upgraded charges against officer who knelt on George Floyd’s neck; charged other 3 involved“):

Attorney General Keith Ellison’s office on Wednesday upgraded charges against the former Minneapolis police officer who knelt on George Floyd’s neck and charged the other three officers at the scene with aiding and abetting murder.

The decision came just two days after Ellison took over the prosecution from Hennepin County Attorney Mike Freeman and followed more than a week of sometimes-violent protests calling for tougher charges against former Minneapolis police officer Derek Chauvin, who had pinned Floyd to the ground and held him there for nearly nine minutes. Protesters also demanded the arrests of the three other former officers who were present but failed to intervene. All three were booked into the Hennepin County jail on Wednesday.

While I’m not a lawyer, much less well-versed in the intricacies of the Minnesota legal code, the new charges seem reasonable. The third-degree murder charge initially filed against Chauvin didn’t seem to comport with the length of time the killing took. And the lack of charges against the other officers seemed bizarre.

But the fact that the Attorney General is not trying to manage the public’s outrage but is also an ambitious career politician who doubtless hopes to leverage this case into higher office is problematic. While Chavin’s guilt, in particular, seems unassailable given the video, the politicization of justice strikes me as inimical to a fair trial.

In my ideal world, prosecutors would stick to the facts of the matter. But this seems appropriate and non-prejudicial:

“To the Floyd family, to our beloved community, and everyone that is watching, I say: George Floyd mattered. He was loved. His life was important. His life had value. We will seek justice for him and for you and we will find it,” Ellison said.

However, he said, he doesn’t believe that “one successful prosecution can rectify the hurt and loss that so many people feel. The solution to that pain will be in the slow and difficult work of constructing justice and fairness in our society.”

And the justification offered for the increased charge against Chauvin is also reasonable, with one caveat:

Chauvin, who was recorded on video kneeling on Floyd’s neck as he begged for air on Memorial Day, now faces the more serious charge of second-degree murder, in addition to the original charges of third-degree murder and second-degree manslaughter with culpable negligence.
Chauvin was originally charged by the Hennepin County Attorney’s Office last week.

The amended complaint filed against Chauvin stated, “Police are trained that this type of restraint with a subject in a prone position is inherently dangerous. … Officer Chauvin’s restraint of Mr. Floyd in this manner for a prolonged period was a substantial factor in Mr. Floyd losing consciousness, constituting substantial bodily harm, and Mr. Floyd’s death as well.”

Don Lewis, special prosecutor in the case against Jeronimo Yanez, the former St. Anthony police officer who killed Philando Castile in 2016, said the nearly nine-minute recording of the moments before Floyd died showed ample evidence of intent to kill on Chauvin’s part.

“Those are moments to cause reflection on whether or not you’re in the middle of a wrongful death here,” Lewis said. “You have George Floyd begging for his life, right? ‘I can’t breathe.’ This is a moment of potential reflection on Chauvin’s part,” Lewis said. “He had multiple opportunities to change course here and decided not to over the span of almost 10 minutes.”

I think that’s right and thought so when the original charges were filed. The length of time involved is not, after all, new news. And it’s not unreasonable that, if the state is now prosecuting the case rather than the county (I don’t know sufficient legal expertise to know how unusual that is) that they re-evaluated the charges.

The caveat is that I loathe the practice of stacking charges, which is a bullying tactic by prosecutors to force guilty pleas. And it’s particularly bizarre here: under what plausible theory of the case can Chauvin simultaneously have committed 2nd-degree murder, 3rd-degree murder, and second-degree manslaughter against a single victim?

The other officers at the scene — Tou Thao, J Alexander Kueng and Thomas Lane — were each charged with aiding and abetting second-degree murder while committing a felony, and with aiding and abetting second-degree manslaughter with culpable negligence. Both charges are categorized as “unintentional” felonies.

Thao was recorded watching as Chauvin continued to press on Floyd’s neck with his knee. Kueng was one of the first officers on the scene and helped pin Floyd down. Lane was detailed in earlier charges as pointing a gun at Floyd before handcuffing, and he later asked whether officers should roll Floyd on his side as he was restrained.

By this description, Lane would seem in a different category than Kueng and Thao but all are obviously culpable. All had the duty to stop Chauvin.

The charges come just days after Gov. Tim Walz asked Ellison to take over the prosecution, which until Sunday had been led by the Hennepin County Attorney’s Office. Freeman stood next to Ellison as the attorney general announced the charges Wednesday, but he did not speak and left midway through the news conference.

Despite the quick pace of adding charges to the investigation, Ellison sought to manage expectations, cautioning that the cases could take “months” to see through. He also brushed off the idea that intense public pressure influenced the process.

Again, I don’t have sufficient expertise on the normal procedures. But it’s hard to believe that massive protests coupled with nationwide rioting and the highest degree of political scrutiny didn’t put pressure on Ellison and his team.

I also don’t love this:

Walz issued a statement after Ellison announced the new charges. “I laid flowers at George Floyd’s memorial this morning. As a former high school history teacher, I looked up at the mural of George’s face painted above and I reflected on what his death will mean for future generations. What will our young people learn about this moment? Will his death be just another blip in a textbook? Or will it go down in history as when our country turned toward justice and change?

“It’s on each of us to determine that answer,” Walz said. “The charges announced by Attorney General Keith Ellison today are a meaningful step toward justice for George Floyd. But we must also recognize that the anguish driving protests around the world is about more than one tragic incident.

“George Floyd’s death is the symptom of a disease. We will not wake up one day and have the disease of systemic racism cured for us. This is on each of us to solve together, and we have hard work ahead,” he said. “We owe that much to George Floyd, and we owe that much to each other.”

On its surface, it’s a perfectly lovely statement of compassion and unity from the state’s chief executive. His primary responsibility is to restore public order, but he also has a duty to help heal this open wound.

But it’s also, in effect, a plea to the jury pool who will try these former officers. Their job is to dispassionately look at the facts presented to them and judge whether the state has proven, beyond a reasonable doubt, the elements of the crimes charged. But the governor has just implored them that it’s their duty to send a message about racial justice that will go down in history.

FILED UNDER: Law and the Courts, Police, Race and Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MarkedMan says:

    under what plausible theory of the case can Chauvin simultaneously have committed 2nd-degree murder, 3rd-degree murder, and second-degree manslaughter against a single victim?

    I don’t get your objection to this at all. On the charge of 2nd degree murder the defense will argue that for technical reasons it does not rise to that level. If the jury accepts these arguments they can fall back and convict him of 3rd degree or manslaughter. If there is only the 2nd degree charge they would have to acquit and let him walk free.

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  2. James Joyner says:

    @MarkedMan:

    On the charge of 2nd degree murder the defense will argue that for technical reasons it does not rise to that level. If the jury accepts these arguments they can fall back and convict him of 3rd degree or manslaughter. If there is only the 2nd degree charge they would have to acquit and let him walk free.

    Not all all. Minnesota, like most states, allows juries to convict on lesser-included offenses:

    631.14 VERDICT FOR LESSER INCLUDED OFFENSE.
    Upon an indictment or complaint for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or complaint, and guilty of any degree inferior to that. Upon an indictment or complaint for an offense, the jury may find the defendant not guilty of committing it, and guilty of an attempt to commit it. Upon an indictment or complaint for murder, if the jury finds the defendant not guilty, it may, upon the same indictment or complaint, find the defendant guilty of manslaughter in any degree. In all other cases, the defendant may be found guilty of any offense necessarily included in that offense with which the defendant is charged in the indictment or complaint.

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  3. MarkedMan says:

    Interesting. I assume this varies by state? Because I seem to recall a fair number of instances where people walked and subsequent discussion about whether it was because the charge was too high. In fact, in at least one of these cases (if my dim memory is accurate) it was a killer cop and there was speculation it was the DA’s backdoor method to get him off.

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  4. MarkedMan says:

    If ol’ Wiki is right, it looks like my dim memory must be wrong, at least in murder cases.

    In criminal jury trials, the court is permitted (but not required) to instruct jurors that they can find the defendant guilty of the most serious crime charged, or of a lesser included offense of that crime (in English law, this is termed an alternative verdict).

    In murder cases, however, where a convicted defendant may face capital punishment, the United States Supreme Court has held that the court must instruct the jury that they may find the defendant guilty of a lesser included offense such as voluntary manslaughter.[1]

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  5. Not the IT Dept. says:

    After watching Trump for the past ten days, I think it’s a bit rich to worry about Keith Ellison being “an ambitious career politician who doubtless hopes to leverage this case”. Frankly, I hope he does and that he’s successful at it. It’s long overdue. We’ll end up with fewer race-baiters like Stephen King.

    Oh, and the governor of West Virginia. That’s a new one today, apparently.

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  6. SKI says:

    The caveat is that I loathe the practice of stacking charges, which is a bullying tactic by prosecutors to force guilty pleas.

    This isn’t that. He can’t get *sentenced* to lesser included so the “bullying tactic” isn’t applicable here.

    But the fact that the Attorney General is not trying to manage the public’s outrage but is also an ambitious career politician who doubtless hopes to leverage this case into higher office is problematic. While Chavin’s guilt, in particular, seems unassailable given the video, the politicization of justice strikes me as inimical to a fair trial.

    You seem to be projecting and wringing your hands over… nothing?

    By your own account, nothing Ellison said or has done was inappropriate and all seems reasonable. Of particular note, he didn’t charge 1st Degree as demanded by the family and the crowds, though an argument certainly exists for that.

    So your complaint is that the AG is a politician. But all AGs are politicians. It is literally an elected office. So what about this charge or politician has you concerned? What makes him more of “an ambitious career politician” than any/every other AG?

    What makes you hesitant to just say that this is the right decision with no caveats?

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  7. James Joyner says:

    @Not the IT Dept.: I’ve been plenty worried about the President’s conduct on all this and have called him out on multiple occasions. (And it’s Steve King; Stephen King is the author and, as best I can tell, on the right side of this issue.)

    @SKI: This is a longstanding grievance of mine, or set of overlapping grievances. Even my dad, who was an MP and CID agent in the Army and ultra-conservative, loathed the stacking of charges, which he thought a way to cover up sloppy police work. And I have always railed against prosecutors and others in a position of authority grandstanding in cases with public interest because it pollutes the system.

    Yes, prosecutors are almost always elected. I don’t think they (or judges or sheriffs, for that matter) ought be.

    If the multiple charges are unstacked, that’s a relief. In which case, I simply find the practice odd given that lesser-includeds are understood.

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  8. Not the IT Dept. says:

    @James Joyner:

    Actually the author Stephen King has had some fun with the same-name thing since yesterday.

    I think it’s your inherent Republicanism, James, that keeps coming to the fore: you just have to go all furrowed-brow and condemn something because whatever whatever whatever. It’s in your DNA. There are times when it’s kind of weird and considering all the AGs over the decades who have used their jobs for exactly the opposite reason you’re projecting on Ellison, then I think you’re over-reacting.

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  9. mattbernius says:

    Charge stacking and over-charging are huge issues. Both, along with the “trial penalty,” lead to very few cases ever going to jury trial, which means the States Evidence rarely gets tested.

    Also, the fact everyone has to run to Minnesota statutes (make sure you are checking the right ones as they tend to change) to check whether the charges are stacking or not is another example of why Criminal Justice Reform in the US is so incredibly difficult.

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  10. James Joyner says:

    @Not the IT Dept.:

    I think it’s your inherent Republicanism, James, that keeps coming to the fore: you just have to go all furrowed-brow and condemn something because whatever whatever whatever. It’s in your DNA

    Actually, these particular criticisms, which are longstanding, are from the left, not the right. Republicans, at least going back to Nixon, have tended to tout “law and order.” My tendency is more libertarian and small-c conservative concern for the rule of the law and sanctity of the protections afforded citizens accused of crimes by the state.

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  11. Jay L Gischer says:

    I would love for the jury to be dispassionate and impartial and just look at the facts before them. Was that true of the jury that tried Rodney King’s killers?

    A deli we sometimes go to often has Gunsmoke playing on the TV. Matt Dillon (a US Marshal), is often a champion of Rule of Law. We’ve drifted a long way from that. It’s alarming.

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  12. Michael Reynolds says:

    Any time these officers do will be very hard time. Cops in prison, especially racist cops in prison are going to be spending a lot of their time in solitary.

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  13. MarkedMan says:

    I’d be interested to see what he goes to trial with. From what I can see, they arrested the guy and had to decide what to charge him with, and picked essentially the minimum. As they got their hands around the case they charged him with a more serious offense. And if its correct that, if convicted of the higher charge, he can’t be convicted of a lesser charge for the same offense , than this is hardly charge stacking. My understanding is charge stacking occurs when, say, you charge someone with petty theft and then tack on interfering with a police investigation and resisting arrest, and driving with an expired license, and having overdue library fines. You add all that up and you could be looking at a year in jail, but if you plead to the petty theft charge you’ll be out in 3 months.

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  14. MarkedMan says:

    @James Joyner: I agree that the left is concerned about these issues, but there are those on the right that feel strongly and have been out front and vocal on this for years.

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  15. James Joyner says:

    @MarkedMan: Yes, that’s fair. Hell, even George Will has come on board with the notion that solitary confinement is cruel and unusual punishment.

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  16. Sleeping Dog says:

    The NYT’s this AM summarized the applicable Minnesota statutes.

    In Minnesota, second-degree murder requires prosecutors to prove either that Mr. Chauvin intended to kill Mr. Floyd, or that he did so while committing another felony. A court filing indicated that prosecutors planned to take the latter approach. Third-degree murder does not require an intent to kill, according to the Minnesota statute, only that the perpetrator caused someone’s death in a dangerous act “without regard for human life.”

    Under Minnesota law, second-degree murder comes with a maximum sentence of 40 years in prison, and accomplices can be eligible for the same penalties as the primary defendant.

    Three other officers who were present — Thomas Lane, J. Alexander Kueng and Tou Thao — were charged with aiding and abetting second-degree murder. Mr. Lane and Mr. Kueng are white and Mr. Thao is Hmong, according to a spokesman for Mr. Ellison. Mr. Chauvin was also charged with manslaughter in the second degree, and the three other officers also were charged with aiding and abetting manslaughter in the second degree.

    Charge stacking, eh, what goes around comes around. It’s regularly used against AA defendants only just that it be used against a cop for murdering a black man.

    As far as Ellison having higher office aspirations, maybe, but he is an AA and a Muslim in a state that is trending increasingly purple, his higher office is most likely in the Biden administration.

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  17. Just nutha ignint cracker says:

    @MarkedMan: You’re dim memory doesn’t matter relative to the point you are trying to make. None of the charges in this case are capital murder (i.e. carry the death penalty), so the question does redound back to whether the jury knows that it can convict of a lesser offense (with the added variable that the court–according to your citation–is not required to tell them so 🙁 ) and whether it is common for juries to choose that route–given that they may make a simple up-or-down judgement.

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  18. Just nutha ignint cracker says:

    @Michael Reynolds: Once again, you show yourself to be the better human being. I’m not particularly inclined to grand former LEOs protective custody (solitary confinement is far more restrictive even though it may look similar). That Chauvin may receive it doesn’t enrage me or anything, I just prefer that guys like him have the “full prison experience.” I feel the same way about child molesters and shooters like Dylan Roof.

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  19. MarkedMan says:

    @Sleeping Dog: Hmm. Second degree murder, in MN anyway, is a tough thing to prove in this case. How can you prove, beyond reasonable doubt, that he intended to kill Floyd?

    Any idea what the max is for 3rd degree murder?

  20. Kathy says:

    @MarkedMan:

    The maximum is 25 years.

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  21. KM says:

    I understand the objections to charge stacking but find myself increasingly unable to care in this case. The more we learn about these cops, the more it’s looking like karma’s out on the field practicing her kicks for the field goal. Two wrongs do not make a right… or at least, they shouldn’t. In Trump’s America, where Karens call the cops on birdwatchers, women sitting alone in parks and lone protesters, hedging your bets to get a deserved conviction sounds like a good plan when you have no idea how many Karens or MAGAts can be in your jury.

    My only concern is that over-charging can lead to guilty people walking. If you over-charge, you can get people going “IDK, I don’t think it was murder murder, yanno?” and the guilty-as-sin skip out to do it all again. If that’s not as big a deal in Minnesota as it would be in Florida (looking at you, Zimmerman), then by all means let the cops know what it’s like to be on the end of a possibly unfair judicial practice intended to send them to jail. Karma’s got her some new spikes she needs to test out.

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  22. mattbernius says:

    @KM:

    I understand the objections to charge stacking but find myself increasingly unable to care in this case. The more we learn about these cops, the more it’s looking like karma’s out on the field practicing her kicks for the field goal. Two wrongs do not make a right… or at least, they shouldn’t.

    My only concern is that over-charging can lead to guilty people walking. […]Karma’s got her some new spikes she needs to test out.

    One of the things that unites the American right and the American left is that punishing any guilty eff’er as hard and painfully as possible. If some innocent (or less guilty) folks accidentally punished along the way, hey that’s the fuel that makes this system work.

    I mean, prison beatings and rape are of course wrong in theory, except when they deserve it. And I have a list of everyone who deserves it. I mean it only happens to people who deserve it, right? I mean, that’s just like the death penalty. Otherwise why would they be in prison?

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  23. Michael Reynolds says:

    @Just nutha ignint cracker:
    I furiously reject any suggestion that I might be ‘the better man’!

    Bureau of prisons will try to keep them safe, but the paradox is that the way they’re kept alive is itself inhumane. OTOH if the cops go into general population they’d have no choice but to link up with whatever white supremacist group dominates their particular prison, but that kind of protection has limits and its costs.

    You don’t want to be a short eyes on the inside, but you really, really, really don’t want to be a cop.

    1
  24. Sleeping Dog says:

    @MarkedMan:

    In the article that announced the 3rd degree charge levied by the county attorney, I believe I saw 35 years and the manslaughter charge is 15.

    For either murder charge, if he’s found guilty, he’s going away for a long time as it is doubtful that a judge would sentence him to fewer than 20-25 years. And as someone pointed out that time would likely be in solitary, since putting him in the general prison population will be a death sentence.

  25. KM says:

    @mattbernius :
    I understand your point but in this case, there’s no ambiguity here. They *do* deserve because they *did* do it. We all saw it with our own eyes. They earned their harshness – they’re unrepentant and there’s no evidence they will stop the behavior that caused this in the first place. Yes, sometimes people do deserve the asskicking they get. Yes, sometimes the hand of the law is heavy for a reason and that’s not inconsistent with liberal principles. It’s when that heaviness is unfairly or incorrectly applied that it becomes wrong and damaging to society.

    I get that criminal justice reform is your passion but invoking innocent people getting screwed by the system doesn’t work for this. You’re trying to point out hypocrisy of a liberal demanding harsh sentencing and the inherent unfairness of the system – fine. I’m aware of what I’m saying.
    These are not falsely accused people, however – they’re not getting railroaded or abused in jail. They are being held accountable for a blatantly cruel murder and are not being mistreated. If anything, they’re going to benefit from the broken system and may possibly walk because they participated in it.

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  26. Michael Reynolds says:

    Punishment for crimes isn’t just about the bad guys, it’s about us. If beatings and rape are part of the punishment, let’s say that openly. Let’s tell the world that we think X or Y or Z is worthy of years of beatings, stabbings and rape. Are we those people? Is this that country? If so, let’s be honest about it.

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  27. MarkedMan says:

    @Kathy: 25 sounds good. He’s not a young man. Let his kids take care of him in his old age.

    1
  28. MarkedMan says:

    @Michael Reynolds: Just getting ready to say this myself but, as always, you summed it up much briefer than I would.

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  29. DrDaveT says:

    Does anyone know what the official rules are (as opposed to standard practice) for how the prosecutors and judge and jury are to take into account the fact that the perpetrators were police officers on duty? I suspect that it (again, in theory) has to do with the point at which they passed from “execution of their duties as officers” to “teaching this ni@#$% a lesson”.

    We all know that Chauvin’s actions, were he acting as a private citizen, would get all of the above charges and probably also Murder 1 for killing someone while committing a felony against them. The fact that he did this while “serving and protecting” should count against him, not as mitigation, but I’m sure that’s not what the law says.

    The other officers, though, are in a different position. As private citizens watching a murder, they have no legal duty to interfere (though of course at least one of them should have called 911). But as officers of the law, they had a sworn duty to intervene on Floyd’s behalf. I don’t think failure to do so is a crime, though. (Helping to kill Floyd obviously moves them into Chauvin’s category.)

  30. DrDaveT says:

    @Michael Reynolds:

    Are we those people? Is this that country?

    Part of me wants to say that people who are willing (or even eager) to put others into that kind of prison should be OK with getting the same treatment themselves.

    But yes — the solution is to not have that kind of prison in the first place. We are not (yet?) the people who are willing to make that happen if it involves any personal expense or sacrifice or risk.

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  31. mattbernius says:

    @KM:

    I understand your point but in this case, there’s no ambiguity here. They *do* deserve because they *did* do it.

    Sure. So then what? Death penalty? Life in prison without the possibility of parole? Should we torture them? I mean, we know they’re guilt so let’s make sure they suffer! USA USA!

    I get that criminal justice reform is your passion but invoking innocent people getting screwed by the system doesn’t work for this.

    Nope. Actually, I’m pretty concerned with what happened to people who end up with guilty verdicts too. Most of us are. Especially since evidence suggests that over-charging leads to false guilty pleas that destroy lives.

    But beyond that we need to care about the people who committed crimes. And not just the touchy feely “non-violent” ones. I’m talking about people who committed violent crimes. Folks who are sex offenders. All the folks who get people uncomfortable. Because most of those folks are one day going to be released and we want them to come back in a way that enables safe reentry for the community.

    And what we know, without a doubt, is simply punishing them or locking them up and throwing away the key, is what got us to the point we are at today.

    So I’m interested in creating a more humane and fair system for all involved. But it’s that American addiction to moralistic punishment that goes a long way into maintaining us as the world leader in mass incarceration. And that’s as much a Liberal Democrat problem as it is a Conservative Republican one. And things like “My only concern is that over-charging can lead to guilty people walking. ” is a vote for maintaining mass incarceration.

    Man, old school Christian Wrath of God stuff is a hell of a drug.

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  32. mattbernius says:

    @DrDaveT:

    Does anyone know what the official rules are (as opposed to standard practice) for how the prosecutors and judge and jury are to take into account the fact that the perpetrators were police officers on duty?

    My understanding is the specifics vary from state to state. A lot depends on state and local statutes in terms of things like jury instruction (i.e. how the jury is supposed to act) or specific prosecutorial procedures. In some cases, those decisions may come down to office policy.

    Additionally, we have the difference between criminal and civil proceedings where there are different standards of proof and different statutory procedures.

    Again, welcome to the US and our 51+ separate criminal justice systems.

  33. Kurtz says:

    @Just nutha ignint cracker:

    Yeah, Michael is correct.

    I mean, I’d rather nothing happen to Chauvin for a more practical reason as well. Soros and/or The Clintons and/or Obama would get blamed by some people on the Right for his demise.

  34. wr says:

    @MarkedMan: “How can you prove, beyond reasonable doubt, that he intended to kill Floyd?”

    Most likely, you get one of them to flip.

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  35. Just nutha ignint cracker says:

    @Michael Reynolds: Note that I said “human being” not “man,” but point taken.

    My experience in this particular venue of discussion are well over 40 years old. My understanding of the times was that not even the neo-Nazis were usually able or willing to offer the shielding a discredited police officer would require. The cost was simply too high and the risks too great. Add that the officer usually had nothing to offer that could not be acquired more safely/cheaply via other means, and… well, Bob’s your uncle as the saying goes.

    Things may have changed. I would certainly hope so for everyone’s sake, but I doubt that any of the changes would be particularly right or salutary. It’s a demeaning and dehumanizing system for all–staff, officials, and outside bureaucracy included. But you do have the advantage over me in that because of my Calvinist upbringing, I hold that, much like Batman in Batman Begins, I don’t have to hurt Chauvin, I can simply decline to ease his suffering. Doesn’t bother me at all. (*Wages of sin,* and all that. 🙁 )

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  36. Just nutha ignint cracker says:

    @mattbernius:

    Man, old school Christian Wrath of God stuff is a hell of a drug.

    It is indeed.

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  37. Mu Yixiao says:

    @KM:

    I understand the objections to charge stacking but find myself increasingly unable to care in this case.

    Which says you don’t care about justice. You want revenge.

    These officers must receive the same treatment from the court as you would want for anyone else. No special protections, and no specific animosity.

    If you’re okay with stacking the deck against those you don’t like, you don’t care about justice–and you validate everything that’s wrong with the system.

    Justice must be blind. We must treat our most hated enemy the same as we do our unfortunate friend. Anything less isn’t justice.

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  38. Mu Yixiao says:

    @Michael Reynolds:

    Punishment for crimes isn’t just about the bad guys, it’s about us.

    I can’t remember the exact quote–or who said it–but it goes something like this:

    “We are judged by how we treat our enemies and those with whom we disagree.”

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  39. mattbernius says:

    @Mu Yixiao:

    Which says you don’t care about justice. You want revenge.

    Thank you for putting it so succinctly. I wish I had been so articulate.

  40. KM says:

    @Mu Yixiao:

    Which says you don’t care about justice. You want revenge.

    I think you and I have very different definitions of justice. Justice is blind as so to be equal but nobody said justice is fair or even good. “Let justice be done though the heavens fall” is a saying because sometimes true justice can be harsh or devastating. What you are referring to is mercy – to be gentle to our enemies as well as our allies without considering if they “deserve” it.

    These officers must receive the same treatment from the court as you would want for anyone else. No special protections, and no specific animosity.

    I am asking for these officers to receive the same treatment from the court as any random person might get. I’m demanding you forget they’re cops or murderers or white people and that they’re just Defendant #27950684. What would normally happen to Defendant #27950684 in this case? That’s what should happen to them. If justice is truly blind, then why are we insisting on an idealized version of the court system for the cops and not the prejudiced one a black defendant might get? Send them into the system the way it is now and let them take their chances. If stacking the charges is an unfortunate norm, I’m asking the norm be upheld for the person who upheld it for others. I’m not saying the norm is correct or righteous – I’m saying it should be applied regardless because otherwise is unjust to anyone else facing such a scenario.

    Justice cannot be blind if you are singling people out for special treatment, true. Sadly, what you are asking for *is* special treatment. I am asking for equal treatment under the law and sucks to be them, that treatment is terrible… partly due to their own actions. I agree with our need for reform as our criminal justice system is a mess. I do not see why y’all have decided these cops should be the poster children for it.

    I don’t want “vengeance”. I want them to be treated like our unfortunate friend because as you noted, that’s justice. As @Just nutha ignint cracker noted, it’s not on us to have to ease the burdens of the system just for them to make some sort of point.

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  41. mattbernius says:

    @KM:

    I am asking for these officers to receive the same treatment from the court as any random person might get.

    It’s still punishment for you. What Criminal Justice Reformers are saying is “we want to change the system so every random person is treated better and more equitably, even if it means these folks get better treatment to.”

    What you are saying is “I want these people to be punished and I don’t care if random people are punished equally as harshly.”

    There is a profound difference there. One is about changing the system. The other is punishing everyone some people, individually, can feel morally superior and viture signal their rightous anger.

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  42. An Interested Party says:

    This looks like a possible argument defense attorneys will use, I wonder how effective it will be…

    Defense attorneys will argue, not without evidence, that Floyd died not because of the application of unlawful force, but rather that it was his own resistance to lawful force, exacerbated by his documented medical conditions and drug use, that triggered a fatal heart attack. Fentanyl and methamphetamines can and often do bring about fatal arrhythmias even absent the type of exertions attributed to Floyd in the complaint. Yes, there came a point when Floyd ceased to struggle and should have been brought to a seated position. Was it this failure to follow what has for decades been standard police procedure that caused Floyd’s death, or did his struggling stop only when the fatal heart attack occurred? These are questions medical experts on both sides will testify about at trial, but for convictions the prosecutors must prove beyond a reasonable doubt that Chauvin was the proximate cause of Floyd’s death and that the others assisted him in the act.

  43. KM says:

    @mattbernius :

    What you are saying is “I want these people to be punished and I don’t care if random people are punished equally as harshly.”

    No, that’s you putting words in my mouth. I keep saying I’m for justice reform – if you can pull it off before they go to trial, good for you! I keep saying again and again, the system sucks and needs to be worked on. However, that work is still in progress – right now, our system is about punishment and it’s not fair for these specific cops to not be treated they way they’d have expected Floyd to be. What I am simply asking for it not idealized law but rather reality. Feel free to change the reality of this, Matt – you might be able to since this seems to be your specialty. I know this is what you work on so good luck and godspeed.

    I’m not your enemy in this and am not sure why I’m getting flack for it. Allow me to put words in your mouth: “It’s more important to allow these officers the privilege of being treated better then all those they have arrested, in the middle of riots about police getting away with being treated as above the law, all so we can be seen as following our ideal. Doesn’t matter how tone-deaf it is, that’s the *right* thing to do!” That’s not what you said, of course but that’s how it can be read if one wished. I’m not advocating for vengeance and you’re not intending your words to be a slap in the face to the protesters.

    My org point (that everyone seemed to gloss over) was overcharging gives people an excuse to nullify righteous charges. If one can cause “doubt” over the most obvious of facts, one can get a charge with a specific criteria dismissed. Like with most murder charges, intent matters. If they overcharge, we get into “did he *mean* to kill?” when a lesser charge would be more appropriate. A gullible or biased jury can easily set a cop free if the charges give them the leeway to do it (“oh, they didn’t mean to *murder* him. He just died accidentally!”) My statement was if that’s not a problem in their state, then I don’t care. Why it blew up into this, I’m not sure.

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  44. mattbernius says:

    @KM:

    No, that’s you putting words in my mouth.

    Then unpack this statement:

    My only concern is that over-charging can lead to guilty people walking. f you over-charge, you can get people going “IDK, I don’t think it was murder murder, yanno?” and the guilty-as-sin skip out to do it all again.

    Because what you are writing here is the exact inverse of Blackstones Ration – https://en.wikipedia.org/wiki/Blackstone%27s_ratio – and it’s about punishing the guilty at the price of hurting everyone else. Again, there’s a bright line between overcharging and the rise of plea bargins and the loss of trials.

    You double down on it again and again:

    My org point (that everyone seemed to gloss over) was overcharging gives people an excuse to nullify righteous charges. If one can cause “doubt” over the most obvious of facts, one can get a charge with a specific criteria dismissed.

    The second sentence here is critical because you are looking at a handful of anecdotal examples that fit your personal bias and get to QED I’m right — overcharging isn’t only an issue because it might lead to a signle guilty person escaping punishment.

    And this is why we have incredibly high rates of mass incarceration. If you are so passionate about the topic, then at least take time to educate yourself on it:

    https://wrongfulconvictionsblog.org/2015/06/12/prosecutors-charge-stacking-and-plea-deals/

    https://bpr.berkeley.edu/2019/10/03/plea-to-prison-pipeline-assessing-the-feasibility-of-mass-plea-refusal/

    https://www.nbcnews.com/think/opinion/prisons-are-packed-because-prosecutors-are-coercing-plea-deals-yes-ncna1034201

    Because you are speaking from a position of deep ignorance right now.

  45. mattbernius says:

    @KM:
    There is a longer post with some links in moderation, but I don’t think it adequately addresses the points of your last message. So one mo gain to try and unpack this disconnect.

    First, I 100% believe and advocate for equal treatment under the law in the short term. I also completely believe that our system of justice has to be reformed (if not burned to the ground and restarted). This comment from Radly Balko really sums up my thinking:

    I’m conflicted about the felony murder charges. On the one hand, felony murder [ed: matt – charnging accessories who might not have been directly involved with a killing for murder] is an awful, unjust concept that shouldn’t exist. On the other, law enforcement officials in particular shouldn’t be exempt from the law, especially awful, unjust laws that apply to everyone else.

    So I think these officers should be charged as anyone else is charged and subject to the same system of justice. And that gets to the crux of our philosophical disagreement (and my larger point about the politics of criminal justice reform).

    My issue with what you wrote and then doubled down on is this:

    My only concern is that over-charging can lead to guilty people walking. If you over-charge, you can get people going “IDK, I don’t think it was murder murder, yanno?” and the guilty-as-sin skip out to do it all again.

    My org point (that everyone seemed to gloss over) was overcharging gives people an excuse to nullify righteous charges. If one can cause “doubt” over the most obvious of facts, one can get a charge with a specific criteria dismissed.

    I never glossed over it. That’s the core of my issue — your only (your words not mine) issue with overcharging is that it could lead to guilty people not being punished.

    First, in general we know that’s not the case (see the rate of dismissals vs pleas). At best it may happen in some cases that are brought to trial, but those are few and far between. So the reality is we know that in our system, overcharging/charge stacking largely works as intended (i.e. to force a plea deal).

    The bigger problem is that this represents is a moralistic punishment mindset. It frames how you think about criminal justice reform, — i.e. in terms of innocence and guilt (see what you assumed about me above “I get that criminal justice reform is your passion but *invoking innocent people* getting screwed by the system doesn’t work for this.”) It also suggests which one is more important to you — i.e. punishing guilt.

    It means that, when push comes to shove, you’re going to react negatively to reforms that might go easier on “people you know are guilty” (see for example sentencing reform) even though that ultimately leads to a lot of other people being hurt in the process. Further, your thinking appears built around exceptions (high profile cases in specific circumstances) rather than rules (what’s happening today in your county’s courthouse–or would be if C19 wasn’t suspending most proceedings).

    Its clear that getting called out on this makes you uncomfortable, but the reality is you’re taking a deeply conservative position — it’s just you want to see different people punished than the average “law and order” conservative.

    And this is why criminal justice reform tends to fail in the US, because at the end of the day, regardless of political persuasion, a lot of us are addicted to moralistic punishment above all else. FWIW, I suspect most people posting here who consider themselves liberals and pragmatic progressives are probably far more aligned with your argument than mine.