The trial of former Minneapolis police officer Derek Chauvin, accused of killing George Floyd, is set to begin on March 29 with opening statements. This is unusual not only because police officers are very seldom accused of criminal acts, but because trials themselves are exceedingly rare. On average nationwide, only 2% of criminal prosecutions end in trials.
Defendants plead guilty for a variety of reasons, but by far the two most important are that they actually are guilty of something and the punishment will be exponentially greater if a jury convicts than if the case ends with a plea bargain.
That George Floyd died under Chauvin’s knee is not at issue. The question is whether Chauvin is criminally responsible for it, and this rests on whether a jury will decide beyond a reasonable doubt that he intended to kill him. Chauvin is charged with first, second, and third-degree murder. What distinguishes these is the depth of the killer’s intent.
Chauvin could swallow his bitter medicine—which is likely to be less bitter than if he is convicted at trial—by pleading guilty to the lowest charge if the prosecution drops the two higher ones. (This assumes, of course, that the prosecutors agree.)
Third-Degree Murder Does Not Require Specific Intent
A stone-cold murder “aforethought,” as some old statutes still call it, is more serious than a killing done recklessly. Punishments vary accordingly. Minnesota requires life imprisonment for killing “with premeditation,” while murder in the second degree, in which a person acted “with intent to effect the death … but without premeditation,” carries a lesser punishment of “not more than 40 years in prison.”
An appellate court ordered the judge in this case to include a charge of third-degree murder, which does not require proof that the killer specifically intended to kill. It says that “without intent to effect the death,” the offender nevertheless “perpetrate[ed] an act eminently dangerous to others and evincing a depraved mind, without regard for human life.” The punishment is “imprisonment for not more than 25 years.”
The excruciating death of George Floyd was documented from multiple cameras. Taken together, they show that officers quickly arrested and handcuffed him early in the encounter; that Floyd gave them his name and date of birth and in obedience to their orders sat on the sidewalk with hands cuffed behind his back as they prepared to transport him to booking.
But then Floyd was agitated, crying out, repeatedly claiming to be claustrophobic and refusing to get into the police SUV. After a struggle, the officers managed to get him prone into the back seat, but he would not sit there, and more struggle ensued. At that point, the viewer first hears the fatal words “I can’t breathe!”
Floyd was handcuffed the entire time. He was incapable of threatening these officers. They were aiming to transport him, not arrest him. They could have waited until he calmed down, but they reached for a “hobble,” a strap to attach his rear-cuffed hands to his feet to further control his movements so they could load him into the SUV. (Hobbles are forbidden in many departments. Compare New York’s police training: “persons in custody should not be restrained … in a prone position for longer than it takes to complete rear cuffing them.”
But hobbling did not kill George Floyd. What allegedly killed him was holding him prone on his stomach, presumably to attach the hobble, (as captured in bodycam video) while Chauvin knelt on his back and neck until he died. The medical examiner’s autopsy report stated that he died of “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression,” meaning he couldn’t breathe when Chauvin forced his windpipe into the ground, and then his heart stopped beating. The video shows that Chauvin kept his weight pressing onto Floyd’s body a full three minutes after it went limp.
Chauvin’s defense attorneys will try to blame Floyd for his own death because he had drugs in his system, as the coroner’s report also stated. Based on pretrial motions, the defense also likely will produce evidence of an earlier arrest, in which Floyd was similarly agitated and emotional.
A Jury Could Easily Convict on Third-Degree Murder
What will jurors make of all this? Not much, if they remember that Floyd was handcuffed and prone on the street, no matter what he said or had in his system, while Chauvin full-on knelt on his neck despite his cries and those of bystanders to “check his pulse! He’s dying!”
Horrible as this is, it probably does not add up to premeditated murder. Chauvin was called to the scene with no preconceived notion of killing anyone. After engaging with Floyd, his intent is obscure. He matter-of-factly communicates with younger officers and rejects a suggestion to turn Floyd onto his side.
These videos and trial testimony might evidence “intent to effect the death … but without premeditation,” possibly proving second-degree murder. But it is the third-degree charge on which a jury can convict easily. No matter the drugs in Floyd’s body or his emotional agitation, Chauvin displayed complete indifference to the handcuffed man dying beneath him. The jury can see “a depraved mind, without regard for human life.”
So, Derek Chauvin: Plead guilty to third-degree murder, because that’s what the evidence shows.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Candace McCoy is a professor of criminal justice at the Graduate Center and John Jay College, City University of New York. She has also served as director of policy analysis for the Inspector General of the New York City Police Department. McCoy is the author of “Politics and Plea Bargaining” (University of Pennsylvania Press).