Charges Against Officers Show No intent to Kill George Floyd: So How Can Prosecutors Prove Second-Degree Murder?

Millions around the world saw the graphic, horrendous, heartbreaking video of Minneapolis police officer Derek Chauvin pressing his knee on the neck of George Floyd. Floyd’s cries “I can’t breathe” have become a lightning rod for police reform, to modify the ways officers are trained to police citizens.

Strong video evidence is great to have in criminal cases but people worldwide who are keeping a watchful eye on the developments in the case must be reminded that prosecutors know they must bring forth the correct charges underpinned by sound logic if they hope to convict the officers of the higher penalty charge of second-degree murder in Floyd’s death or even convict them period.

derek chauvin, Minneapolis police photo
Former officer Derek Chauvin, Minneapolis police photo.

“This is not a shoo-in,” Minnesota defense attorney Mike Brandt told Channel 11 news. “There are lots of lines prosecutors have to connect. If you raise questions about even one, you could raise reasonable doubt.”

Charges of homicide related offenses against the four officers indicate from a legal standpoint that George Floyd’s death wasn’t intentional, meaning the officer committed no direct act to murder Floyd.

So how can prosecutors actually convict the officers of second-degree unintentional murder?

Retired criminal attorney and U.S. Texas Representative Craig Washington, said there are ways that different states interpret the act of murder.

“Murder in most jurisdictions includes varying degrees of culpability including committing an act clearly dangerous to human life.”

This article will provide a thorough analysis of why the former officers weren’t charged with intentional murder.

Following Floyd’s brutal death at the hands of police the shocking event sparked riots across the United States.

Shouting out the oft-spoken words, “No Justice no Peace,” protesters took over the streets in dozens of cities demanding justice for Floyd’s alleged murder and demanding justice for other black citizens unjustifiably killed by police.

Violent protests erupted in L.A. California, New York, Minneapolis, Atlanta, Washington, D.C., Miami and Chicago. At least 10 people have died during protests over Floyd’s death. Activists, civil rights leaders, celebrities, athletes, politicians, including law-abiding citizens are calling for an end to police brutality, racial profiling, police shooting unarmed black men and other injustices against black people.

“Here you have an officer using what I have yet to hear experts say is a (legitimate) police tactic, putting his knee into the throat of Mr. Floyd,” said Sean Malone, a former chief counsel for the Baltimore Police Department.

People insist the image of George Floyd begging for his life is one of the worst videos to be shown and that the officers should automatically be found guilty.

Yet, by all means, a damning video doesn’t always mean a conviction can outright be had but in all likelihood the possibility of conviction is reasonable to consider. Convicting police officers in the line of duty isn’t always easy.

For example, according to the Washington Post, charges against officers are rare; convictions are rarer. Since 2005, the Post reported, 110 law enforcement officers in the United States have been arrested for murder or manslaughter for shooting someone on duty. Statistics compiled by Bowling Green State University Professor Phillip Stinson showed that out of the aforementioned stats, five have been convicted of murder while five others were convicted of homicide, and 22 convicted of manslaughter.

A 2016 investigation by Texas Tribune News showed that only seven of 880 Texas officers involved in shootings had been indicted. Two on-duty law enforcement officers in Houston were convicted of murder of citizens. Houston Police Officer Arthur J. Carbonneau was given nine years of probation for shooting 14-year-old Eli Eloy Escobar in the head at Burnham Woods Apartments in 2003. And former Harris County Sheriff Deputy Joseph Kent McGowan was given 20 years in state prison in 2002 for the 1992 murder of Susan White. McGowan shot White to death while executing a false arrest warrant. Body camera helped a Texas jury in 2018 to convict Roy Oliver, in the shooting death of Jordan Edwards on May 2, 2017. Oliver had been employed by Balch Springs Police Department as a patrolman when he killed Edwards.

Floyd died on May 25th, after police arrested him when a store employee at Cup Foods located at 3759 Chicago Avenue in Minneapolis accused Floyd of trying to pass off a counterfeit $20 bill. After the release of the video went worldwide showing Derek Chauvin nonchalantly pressing his knee on the neck of a dying George Floyd as he cried out for his mother and uttering the stressful words “I can’t breath” – the police attack on Floyd triggered riots and protests throughout America and even angry protesters marched in the streets overseas chanting Floyd’s agonizing dying words “I can’t breathe.”

Chauvin and three other officers have been charged in Floyd’s death. Chauvin has been charged with second degree murder and manslaughter stemming from the death of Floyd while the three assisting officers are charged with aiding/abetting Chauvin in the second-degree of murder and manslaughter.

D. Chauvin, T. Thao, T. Lane, J. Keung. Source: Hennepin County Sheriff Department
D. Chauvin, T. Thao, T. Lane, J. Keung. Source: Hennepin County Sheriff Department

Although the video filmed by a witness is a damning piece of evidence, defense lawyers and legal experts say the attorneys representing the officers do have a swinging chance to present a reasonable doubt defense for their clients. Attorney General Keith Ellison, forewarned the public during a CNN news interview that the case won’t be as simple for the prosecution and that jurors generally tend to resolve doubts in favor of the police.

“Convicting police officers of murder is no easy task,” Ellison said during press conferences.

Breakdown of Criminal Charges Against Minneapolis Officers in Floyd’s Death

Copy of the Charges Against Police

On June 3rd, 2020, prosecutors added a new charge against the 44-year-old Derek Chauvin: unintentional second-degree murder. Previous charges of third-degree murder and second-degree manslaughter remain pending against Chauvin. Meanwhile, Thomas Lane, 37, J. Keung, 26, and Tou Thao, 34, are charged with aiding/abetting both second-degree murder and second-degree manslaughter. If Chauvin is convicted of second-degree murder the maximum penalty carries 40 years in prison. Third-degree murder carries a penalty of up to 25 years; and second-degree manslaughter conviction carries a penalty up to 10 years in prison.

Bond for each officer is set between $750,000 and $1,000,000,00 dollars.

“I strongly believe that these developments are in the interest of justice for Mr. Floyd, his family, our community and our state,” AG Keith Ellison said, announcing the charges.

Second-Degree Murder Charge Against Derek Chauvin

Former officer Derek Chauvin’s criminal charge stemming from Floyd’s death is proscribed under Minnesota criminal statute as “[unintentional] second-degree murder caused by felony assault involves causing the death of a human being, without intent – while committing or attempting to commit a felony offense.”

In Chauvin’s case, the underlying felony that Chauvin committed is assault. The second part of the statute is crucial because prosecutors allege Chauvin killed Floyd while in the course of committing felony assault that led to Floyd’s death.

To convict the disgraced ex-cop, prosecutors must prove that the act of Chauvin kneeling on Floyd’s neck for 8 minutes and 46 seconds amounted to a felony assault, according to Minneapolis criminal defense attorney Peter Wold.

“If they prove (Chauvin) was engaged in felony assault that resulted in (Floyd’s) death, ‘that’s second-degree murder in Minnesota,'” Wold explained, in an article published by Voanews.com

Aiding and Abetting Second-Degree Murder and Second-Degree Manslaughter

Under Minnesota Law, aiding and abetting is clearly defined as “a person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.” Officers Lane, Keung and Thao face the same 40-year penalty as Chauvin – if found guilty of aiding him to commit second-degree murder and the three officers will face up to 10 years in prison – if found guility of aiding/abetting second-degree manslaughter.

Information contained in the charges against Lane, Keung, and Thao detail how the officers took no action to assist the restrained victim George Floyd nor offered help to reduce the force Chauvin was using against Floyd’s neck.

Will George Floyd’s “Cause of Death” Prove Difficult For Prosecutors to Win Second-Degree Murder Convictions?

Hennepin County Chief Medical Examiner Andrew Baker issued the following findings and conclusion of the autopsy performed on the decedent: Baker wrote, “George Floyd, age 46, died of cardiopulmonary arrest, (which) complicated law enforcement subdual, restraint and neck compression.”

Baker’s previous preliminary ruling indicated Floyd suffered “Cardiopulmonary arrest while restrained by police.”

Cardiopulmonary arrest is a complete stoppage of a person’s heart that usually results in death. M.E. Baker also noted there were “No life-threatening injuries identified – although trauma to Floyd’s face, elbows and hands, were consistent with Floyd being handcuffed.”

A second autopsy performed on Floyd’s body by renowned Dr. Michael Baden concluded the former Texas athlete died of asphyxiation due to neck and back compression. Prosecutors will likely use the cause of death ruling by Dr. Baden while defense attorneys for the officers will use Baker’s conclusion that Floyd died from cardiopulmonary arrest due to prior heavy drug use.

Writing online for the National Review, Author Andrew C. MCCarthy pushes the narrative that Floyd’s cause of death will create dueling conflicts centered on the autopsy evidence. “[C]ontrary to most people’s assumption, Mr. Floyd appears not to have died from asphyxia or strangulation as Chauvin pinned him to the ground, knee to the neck. Rather, as alleged in the complaint, Floyd suffered from coronary-artery disease and hypertensive-heart disease.”

MCCarthy further wrote, “The complaint further intimates, but does not come out and allege, that Floyd may have had ‘intoxicants’ in his system.” (Please note: the M.E. in fact indicated past use of narcotics were observed during Floyd’s autopsy. MCCarthy continued: “The effects of these underlying health conditions and ‘any potential intoxicants’ are said to have ‘combined’ with the physical restraint by three police officers, most prominently Chauvin, to cause Floyd’s death.”

MCCarthy’s narrative pointing to evidence of drug use found in Floyd’s body is true. As stated, Floyd’s autopsy showed signs of fentanyl, meth, and THC. THC is the ingredient commonly found in marijuana. All three were present in Floyd’s organs including traces of COVID-19. Fentanyl is a potent synthetic opioid with heroin-induced effects and meth is a stimulant referred to in the illegal drug market as “speed.”

A Forensic expert shot down MCCarthy’s suggestion that drugs in Floyd’s system may hamper the prosecutors’ drive to prove the officers were solely responsible for Floyd’s death.

“I believe the presence of these substances isn’t relevant,” said Bruce Goldberger. Goldberger serves as the Forensic Medicine Chief at the University of Florida College of Medicine. “We know his death is not due to Toxicological means,” because of the video of the circumstances, Goldberger added. “I don’t believe the drugs played a significant role in causing Mr. Floyd to become unresponsive while being restrained by law enforcement officers,” Goldberger concluded.

Friends and Classmates of George Floyd Honor Floyd's Legacy. Source: Facebook
Friends and Classmates of George Floyd Honor Floyd’s Legacy.
Source: Facebook

Raising More Doubt?

Defense attorneys for the officers may bring forth other medical examiners and coroners to raise more doubts about whether Chauvin is solely responsible for Floyd’s death. Former Minnesota Attorney General Mike Hatch said the defense may benefit from the use of a clip by Hennepin County Attorney Mike Freeman, who said in a news conference before charges were filed against the officers that it was his job to prove that Chauvin violated criminal statute, “and there is other evidence that doesn’t support a criminal charge.” “I guarantee you that clip will be shown often because that’s the issue in a criminal case – is there reasonable doubt if the county attorney is indicating that there is some indication there wasn’t criminal behavior?” Hatch concludes the video makes it “a very strong case as it relates to Chauvin.”

Ronald Sullivan, Director of Criminal Justice Institute of Harvard University, told CBC News, that for the prosecution to win, they’ll have to focus the jury on a finite period of time and argue that at some point, Chauvin should have taken his knee off Floyd’s neck and applied medical aid to someone clearly not functioning anymore.

“I think they got a treasure trove of arguments there,” Sullivan said.

As for the officers’ defense attorneys, Sullivan further said, “They need to convince the jury that in the context of an escalating set of facts with a man who was on serious drugs, which made (Floyd) unpredictable,” and the officer behaved “consistent with his training and certainly didn’t intend to kill.”

Sullivan went on to say that as a police officer, Chauvin had a form of immunity to commit what the prosecution has deemed an assault.

Author Andrew MCCarthy insists the aiding and abetting charges against Lane, Keung and Thao may not have too much substance to really stick. MCCarthy went further, accusing AG Ellison of overcharging the three officers with aiding and abetting officer Chauvin in the second-degree felony murder of George Floyd.

MCCarthy adds, “There is evidence that (officer) Lane told Chauvin he was ‘worried’ about the manner in which Floyd was being restrained and with Chauvin pressuring his neck could trigger excited delirium.” Delirium is a condition of agitation, capable of causing heart or respiratory failure. “Due to this worry, Lane suggested, rolling Floyd on his side – A suggestion Chauvin rebuffed.”

Retired Houston Police homicide investigator Rick Moreno who previously worked cases where suspects died in police custody including several other homicide cases weighed in on the matter. “Maybe Prosecutors should try and make a deal with Officer Lane who tried to get Chauvin to roll Floyd over to help him up,” Moreno said.

“This evidence will make it difficult for prosecutors to establish the alleged accomplices (Lane, Keung and Thao) had it in their minds to assault Floyd.” (Felony assault is the underlying charge related to the second-degree murder charge filed against all four officers). Second-degree murder in Minnesota doesn’t require direct intent by a defendant to commit murder as long there’s an underlying(separate) intentional felony act that results in someone’s death.

“Therefore, MCCarthy further stated, it is difficult to apply aiding and abetting (against the three additional officers) – if what (Chauvin) did (under the second-degree murder theory) was unintentional.”

Expect the cases of the Minneapolis police officers to be one of the biggest criminal trials in the annals of the 21st century.

All four former officers are presumed innocent until convicted in a court of law. Only time will tell if new police reforms are implemented in this country to satisfy Americans.

Newsblaze Criminal Justice Legal Affairs Reporter Clarence Walker Jr. can be reached at: [email protected]

As an analyst and researcher for the PI industry and a business consultant, Clarence Walker is a veteran writer, crime reporter and investigative journalist. He began his writing career with New York-based True Crime Magazines in Houston Texas in 1983, publishing more than 300 feature stories. He wrote for the Houston Chronicle (This Week Neighborhood News and Op-Eds) including freelancing for Houston Forward Times.

Working as a paralegal for a reputable law firm, he wrote for National Law Journal, a publication devoted to legal issues and major court decisions. As a journalist writing for internet publishers, Walker’s work can be found at American Mafia.com, Gangster Inc., Drug War Chronicle, Drug War101 and Alternet.

Six of Walker’s crime articles were re-published into a paperback series published by Pinnacle Books. One book titled: Crimes Of The Rich And Famous, edited by Rose Mandelsburg, garnered considerable favorable ratings. Gale Publisher also re-published a story into its paperback series that he wrote about the Mob: Is the Mafia Still a Force in America?

Meanwhile this dedicated journalist wrote criminal justice issues and crime pieces for John Walsh’s America’s Most Wanted Crime Magazine, a companion to Walsh blockbuster AMW show. If not working PI cases and providing business intelligence to business owners, Walker operates a writing service for clients, then serves as a crime historian guest for the Houston-based Channel 11TV show called the “Cold Case Murder Series” hosted by reporter Jeff McShan.

At NewsBlaze, Clarence Walker expands his writing abilities to include politics, human interest and world events.

Clarence Walker can be reached at: [email protected]