Minnesota prosecutor’s charges might lead to an unjustly easy sentence for George Floyd’s killer By Laurence H. Tribe and Albert Turner Goins

By filing a third-degree murder charge against Derek Chauvin that a judge is likely to dismiss, the county prosecutor in Minnesota is setting the stage for a miscarriage of justice.

Demonstrators gather to protest the killing of George Floyd on May 30 in Minneapolis. Scott Olson/Getty

Unless prosecutors in Minnesota file more serious charges against the police officer accused of killing George Floyd, they’re at risk of compounding public outrage by letting his killer escape a charge of murder.

Millions of us have watched the video of a white police officer, Derek Chauvin, kill Floyd, an immobilized Black man, on Memorial Day by grinding his knee into Floyd’s neck until Floyd, calling out for his mother and saying “I can’t breathe,” was beyond saving. The echoes of past extrajudicial executions, from that of Trayvon Martin to that of Eric Garner, and of centuries of slavery and slaughter, of lynching and officially sanctioned violence, rang out across the land.

It took several excruciating days before the county’s chief prosecutor, Michael Freeman, finally saw fit to file criminal charges against Chauvin, and then only for second-degree manslaughter, an offense punishable by up to 10 years in prison but usually resulting in a much lighter sentence, as well as something Minnesota calls third-degree murder, a crime punishable by up to 25 years but applicable only where someone unintentionally causes death by “reckless or wanton acts … without special regard to their effect on any particular person” — like shooting aimlessly into a crowd.

No one remotely familiar with Minnesota law would regard either of those charges as the right ones to bring in this case — a case where, even if intent cannot be proven, a second-degree felony murder charge, punishable by 40 years in prison, is manifestly justified. Under a quirk in Minnesota law, second-degree murder can be charged where an assault — such as the first-degree assault evident from Chauvin’s placement of his knee on Floyd’s neck for nearly nine minutes — unintentionally results in death.

More critically, anyone steeped in Minnesota law would recognize that the third-degree murder charge would likely be summarily dismissed for the ironic reason that Chauvin clearly aimed his acts at Floyd. Such a miscarriage of justice would surely trigger still more chaos and violence from coast to coast as people across the political spectrum come to see American justice as unworthy of the name.

One of us (Albert Goins) is a criminal law practitioner with decades of experience in criminal defense and the civil prosecution of police misconduct in Minnesota. The other (Laurence Tribe) is a legal scholar, teacher, and advocate with a half-century of experience in interpreting legal texts and applying constitutional principles to their enforcement. Both of us are baffled by what’s going on in this explosive case — one that has reopened the deepest wounds imaginable in our nation’s four-century-long struggle with race and that has triggered violent riots throughout the country.

Perhaps the Hennepin County prosecutor has simply made a gross filing error. Maybe he meant second-degree murder when he said third-degree murder. But somehow that seems unlikely. There is just too much well-settled precedent in Minnesota dealing with the inapplicability of third-degree murder charges where “all the blows were directed towards the victim.”

Besides, it seems a bit too convenient for this “error” to have come atop a coroner’s report that goes out of its way to note that Floyd’s death may have resulted not from asphyxiation alone but from a cessation of his ability to breathe compounded by various preexisting medical conditions. The idea that with a somewhat healthier victim, Chauvin’s knee might’ve had to remain in place a bit longer to cause death doesn’t seem particularly well calculated to exonerate Chauvin of second-degree murder.

Even if none of this proves the fix is in, hopefully we might be excused for finding the combined weight of suspicious circumstances a bit too heavy to bear in the face of so long and dismal a history of racially charged police abuse, papered over by an an equally long and no less dismal a history of prosecutors and juries letting white police officers get away with murder, sometimes literally, when their victims are Black.

The urgently needed step is for Minnesota Governor Tim Walz to invoke that state’s legal process for substituting the State Attorney General Keith Ellison, for the local county prosecutor in the prosecution of this matter; one can pray too for federal coordination and vigorous action, as would be expected from a Justice Department more steadfastly committed to equal justice under law than this one has reliably been.

Justice demands nothing less, and civil peace in America demands at least this much.


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