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What Derek Chauvin did to George Floyd was despicable — but it’s unlikely to get a murder conviction

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We exist in a period of ideological purity tests and zero tolerance for what F. Scott Fitzgerald described as “the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.”

For that reason, it is necessary to balance the revulsion for disgraced former Minneapolis police officer Derek Chauvin’s mistreatment of George Floyd — an appalling case of police brutality — with recognition that prosecutors may have made a critical error by overcharging the case.

Let us stipulate that the conduct of Chauvin — an armed instrument of the state — was repugnant and yes, criminal. Casually kneeling on a handcuffed, prone suspect’s neck for 9 minutes and 29 seconds does not meet the definition of proportional police use of force. No twisted, distorted interpretation of “objective reasonableness” — codified as the means to judge law enforcement actions by the Supreme Court in Graham v. Connor — changes that.

Law enforcement professionals won’t defend Chauvin’s misconduct. There is no defense for it. However, criminal cases are often messy, complicated, and complex.

Former Minneapolis police officer Derek Chauvin sits in front of a picture of George Floyd displayed during Chauvin's trial for second-degree murder, third-degree murder and second-degree manslaughter in the death of Floyd in Minneapolis, Minnesota, U.S., March 29, 2021
Former Minneapolis police officer Derek Chauvin sits in front of a picture of George Floyd displayed during Chauvin’s trial for second-degree murder, third-degree murder and second-degree manslaughter in the death of Floyd on March 29, 2021.
REUTERS/Jane Rosenberg

To wit, Hennepin County Medical Examiner, Dr. Andrew Baker, concluded that the cause of death was homicide. However, the preliminary report suggested that underlying conditions may have contributed to Floyd’s death. The attendant toxicological report concluded that the death was attributable to the “combined effects of Mr. Floyd’s being restrained by police, underlying health conditions and any potential intoxicants in his system.” Traces of fentanyl, methamphetamine and an underlying heart condition surely lends to the messy, complicated, and complex particulars of this criminal case.

Children help carry a portrait of George Floyd outside the Minnesota State Capitol building as activists gather earlier this month.
Children help carry a portrait of George Floyd outside the Minnesota State Capitol building as activists gather earlier this month.
Stephen Maturen/Getty Images

In court — not the public opinion version — there will be an introduction of physical and testimonial evidence. And this is where prosecutors have made a miscalculation. Last May, the Hennepin County attorney charged third-degree murder and second-degree manslaughter. Public outcry led Minnesota Attorney General Keith Ellison to add a charge of second-degree murder. After a series of appellate challenges, the charges remain intact.

The prosecutorial burden of proof in a murder case is an impossibly high threshold when saddled with the autopsy report’s listed contributory factors in Floyd’s death.

Proving an applicable second-degree murder charge in Minnesota requires an intent to cause death; impossible to prove in this case. The definition of third-degree murder is murkier and plagued with conflicting interpretations.

However, a person may be charged with second-degree manslaughter if they “knowingly or consciously take a risk (like kneeling on someone’s neck) that results in the death of a person.” Chauvin’s conduct was manslaughter; culpable negligence. For those viewing as injustice anything less than a murder conviction, forewarned is forearmed.

Defense attorney Eric Nelson, defendant and former Minneapolis police officer Derek Chauvin, and Nelson’s assistant Amy Voss introduce themselves to potential jurors on Tuesday, March 23, 2021.

Court TV, via AP, Pool

George Floyd Jurors Burdens

Bystander video of the confrontation is expected to be a key exhibit at trial, with opening statements on Monday, March 29, 2021.

Hennepin County Sheriff’s Office via AP, File

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Prediction: Acquittal on the murder charges and found guilty of second-degree manslaughter.

James A. Gagliano is a retired FBI Supervisory Special Agent and doctoral candidate at St. John’s University.

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