by Mary Jansen
Many people have called for first degree murder charges in the death of George Floyd. While the desire for greater sentences is understandable, a call for specific charges can undermine the quest for justice.
In most cases, Minnesota’s first degree murder statute requires premeditation (the planning and/or preparation to kill before the act). It adds only a few specific situations where a first degree murder conviction can be obtained without proof of premeditation. The statute’s words show none of the narrow exceptions fit George Floyd’s homicide.
In criminal law, if the circumstances don’t fit within the words of the statute the defendant is charged with violating, a guilty defendant can avoid conviction. Simply by showing the facts do not fit the narrow language of Minnesota’s first degree murder statute, a defendant may get the judge to dismiss that charge before the case even gets to a jury. It does not matter how heinous the actions were. As long as the facts and circumstances fall outside the narrow language of the first degree murder statute, a prosecutor will not be able to get that charge to the jury.
If the conduct satisfies the requirements of a different statute, there may be ways a prosecutor could save part of the case and get something to the jury. But the process tends to weaken the prosecution’s credibility and makes it harder to get any conviction even under other statutes with language covering the situation.
The first charges against Chauvin were under the third-degree murder and the second degree manslaughter statutes. The words of these statutes clearly describe situations involving the use of excessive force endangering life. Thus, charges could be brought under these statutes relatively quickly without the risk of handing Chauvin any obvious defenses as a first degree murder charge could.
On Wednesday, a second degree murder charge was added against Chauvin. The new charge says Chauvin caused Floyd’s death without intent in the course of committing assault in the third degree. Comparing those facts to the language of the second degree murder statute shows why it took more time (and more public pressure) to bring this charge. To get a second degree murder conviction, the statute requires the prosecution to prove Chauvin actually intended to kill George Floyd or that Floyd died in the process of Chauvin committing another felony crime. The case will be easier to prove if it is not necessary to show Chauvin intended for Floyd to die. But it becomes more difficult for a jury to follow the theory of the case when proving one crime depends on proving another crime. This is where excessive force cases usually fail before a jury. So there is a risk in adding this charge, and it needs to be done carefully if justice is to prevail.
On Wednesday, the three other participating officers were also arrested and charged with aiding and abetting Chauvin in committing second degree murder and second degree manslaughter. Under Minnesota statutes, an aiding and abetting charge carries the same penalty as directly committing the crime. But, it is still necessary to include the main crime in the aiding and abetting charge. And to get convictions, it is necessary to prove the main crime in the cases against the aiders and abettors. Thus, it often makes sense to delay charging other participants until after the primary defendant has been charged.
Charging homicide defendants is a process which turns on the complex legal analysis of the words used in each homicide statute in the state where the homicide occurred. While states often use similar names for crimes, the words of the statutes vary widely as do which situations are put under which levels of homicide. That difference makes it difficult for anyone not familiar with the language used in the homicide statutes where the crime was committed to understand which level is the best fit for a particular case. It is just too easy to inadvertently use the name of a crime that would work in another state but does not work with the language of the statutes in the state where the crime was committed.
We can demand equal justice in charges without the risk of such inadvertent legal traps by focusing on the real injustices rather than legal issues like specific charges. Point out persons of color are disproportionately subjected to use of force and dangerous police procedures suffering more injuries and death. Focus on police officers injuring persons of color routinely being charged with lesser offenses compared to similar crimes or not being charged at all. Police officers who injure persons of color are routinely disciplined less severely than those injuring white victims or not disciplined at all. Demand arrest and charging of all participants. Ask for the inclusion of additional charges carrying the possibility of greater punishment without naming any particular charge. Do not allow legal technicalities to divert the discussion or the advocacy from the true justice issues.
Mary Jensen
Citizen of Oxford, retired lawyer and former law professor
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