At least thus far, former Minneapolis police officer Derek Chauvin is the only person to be arrested in connection with the death of George Floyd. Some or all of the other officers present when Floyd died may be charged later, but the investigation is ongoing. As far as Chauvin goes, Floyd’s family has already stated that they feel the charges against him – third-degree murder and second-degree manslaughter – were insufficient and they would like to see first-degree murder charged instead.
That’s clearly understandable for a grieving family, but it’s also a subject brought up this week at the Washington Post by Georgetown University Law Professor Paul Butler. As he points out, charging and arresting Chauvin was the easy part. All it takes is a determination by the prosecutor. But convicting him is another matter, assuming he’s guilty. That’s going to be significantly harder if it’s possible at all.
Former Minneapolis police officer Derek Chauvin has finally been arrested for the murder of George Floyd. Now comes the hard part.
As the case against him moves from the court of public opinion to the Hennepin County District Court, prosecutors will face significant challenges in securing a conviction…
As a former prosecutor, though, I am well aware of the difficulty of convicting a police officer. The odds are against it. Since 2005, approximately 100 officers have been charged with homicide for using deadly force in the line duty. But most of those officers walked; the charges were dismissed or they were acquitted.
As of 2019, there had been only 35 convictions, almost all for manslaughter or negligent homicide, not murder.
Butler is bringing up a number of points in this column that mirror questions I previously raised about the pending trials of the McMichaels in Glynn County, Georgia. It’s almost never easy to convict a police officer (or sometimes even an ex-police officer) in a case of lethal force. It’s true that the prosecution will have that video to show to the jury (assuming Chauvin goes with a jury trial), and it certainly looks like a damning piece of evidence. It might even meet the bar for most jurors as proof that Chauvin’s actions were “eminently dangerous” and displayed “depraved” indifference to George Floyd’s life. This is the standard that the prosecution must prove to obtain a third-degree murder conviction.
What the video can’t speak to is intent. In order to go for first-degree murder, the jury must be convinced that Chauvin knew that he was in the process of ending Floyd’s life and it was his direct intention to make that happen. The defense will argue that Floyd was resisting arrest and Chauvin was simply trying to subdue him and things got out of control.
I would argue that it might not even be a slam dunk to secure a conviction on either of the current charges. Again, assuming that Chauvin is guilt and that he goes with a jury trial (and any lawyer that let him go with a bench trial should probably be disbarred for malpractice), a lot of curious things can happen in the courtroom and in the jury’s quarters. All it’s going to take is one or two people on the jury who are predisposed to believe police officers deserve the benefit of the doubt and are looking for an excuse to find him not guilty.
And they’ll be given plenty of excuses. There’s already a coroner’s report indicating that Floyd had some underlying health issues that might have contributed to his death. I agree with Professor Butler that it seems unlikely in the extreme that George Floyd just “happened to die” while he was pinned down on the street, but the defense will argue that it’s possible that a healthier person would have only been rendered unconscious and Chauvin had no way of knowing he would die. At that point, you would be lucky if a favorably disposed juror would even find him guilty of homicide.
The vast majority of instances where police wind up using lethal force don’t bring convictions because the vast majority of police only use such force as a last resort when they feel that their lives or the lives of others are in imminent danger. While I admittedly have nothing to go on here but a couple of bystander videos, that doesn’t appear to be the case in the death of George Floyd. But if anyone is under the impression that he’s definitely going down for this, to say nothing of the other officers on the scene, I would suggest that you’re getting ahead of yourself.