Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news. Post your questions below. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Ana Cabrera” at 5:40 p.m. ET Sundays.
Wednesday’s charges against Derek Chauvin and three other former Minneapolis Police Department officers involved in the death of George Floyd are an important step toward justice. Minnesota Attorney General Keith Ellison did the right thing, and the necessary thing, by upgrading the top charge against Chauvin, and by bringing serious charges against the other three officers as well.
County-level prosecutors originally charged Chauvin last week with third-degree murder, in a complaint that was rife with subtly inexplicable statements and omissions. Third-degree murder carries a maximum penalty of 25 years and requires proof that the defendant committed an act “eminently dangerous to others and evincing a depraved mind, without regard for human life.” In other words, a third-degree charge requires prosecutors to show that Chauvin acted recklessly and dangerously, without necessarily intending to kill Floyd.
Ellison took over the case shortly thereafter, reportedly at “the urging of Floyd’s family, community activists, and some members of the Minneapolis City Council,” and now he has addressed a shortcoming in the original complaint by charging Chauvin with a more serious second-degree murder count, which carries a potential 40-year sentence. Ellison used a smart tactic here by charging what is known as “felony murder.” That means the defendant intentionally committed some felony – here, assault – and that a death resulted. Thus, prosecutors need to prove that Chauvin intentionally assaulted Floyd, but not necessarily that Chauvin intended to kill him.
The publicly-available evidence looks sufficient to sustain this charge. Chauvin kept his knee on Floyd’s neck for 8 minutes and 46 seconds, including three full minutes after Floyd stopped moving and nearly two minutes after he apparently “ceas[ed] to breathe or speak.” During the full eight-plus minutes, Floyd audibly stated, “I can’t breathe,” “mama,” “Don’t kill me,” and “I’m about to die.” I believe that evidence is sufficient to show an intentional killing – and all the prosecution must establish here is an intentional assault, with death resulting.
As a safety net, prosecutors also have charged Chauvin with third-degree murder and second-degree manslaughter.
Even if the jury does not convict on the top charge (the second-degree murder), it still can find Chauvin guilty on one or both of these lesser charges. He is currently in custody and is scheduled to appear in court later this month.
The other three officers now face charges of accomplice liability for aiding and abetting Chauvin in committing second-degree murder and manslaughter. Under Minnesota law, anyone who assists another in committing a crime is guilty just as if he committed the crime with his own hands. In one sense, these charges will be more difficult to prove than the charges against Chauvin, because Chauvin’s conduct is more direct and will be more palpable to a jury. But, in another sense, the bar is lower; if prosecutors can prove that the other officers knowingly assisted Chauvin even in some small way, they too are guilty. A newer video appears to show two of the other officers also kneeling on Floyd.
Ellison correctly noted that trying the case will not be easy and “winning a conviction will be hard.”
He’s right. We have not yet heard what the defenses will be, but rest assured, each defendant will have capable counsel fighting every inch of the way. Trial juries are inherently unpredictable; anybody who tells you any trial is a sure thing has never tried a case.
Much still lies ahead. The case next will go to a grand jury, followed by pre-trial discovery and motions, and ultimately, trial. Justice remains well down the road. Still, Wednesday’s charging decisions are an important step towards that end goal.