The trial of former Minneapolis police officer Derek Chauvin has just begun. It will be televised and promises to be one of the most watched trials since that of OJ Simpson.
The death of George Floyd is among the most consequential events of the 21st century. The image of Chauvin with his knee on Floyd's neck has traveled around the world and influenced hundreds of millions of people to seek racial justice.
Several important questions will determine whether the current atmosphere will allow for a fair trial: Can jurors be expected to ignore the potential for violence if they fail to convict? Has the attorney general properly charged Chauvin, or overcharged him for political or ideological reasons? How will the jury weigh different factors—Chauvin's actions, Floyd's medical complications or drug use—in pinpointing the "cause" of Floyd's death?
Floyd's lawyer has declared "This will be a referendum on whether police are held accountable for killing Black people in America." But trials are not referenda on macro issues of social justice. They should deal solely with the micro issue of whether a particular defendant is guilty of the charged crimes. If a prosecutor were to use the word "referendum" in his arguments, the judge would have to declare a mistrial. The judge must instruct the jurors to ignore all outside pressures, concerns or claims they may have received from the media.
I have no brief for Derek Chauvin. What I saw on the video was inexcusable. It warranted his firing and an investigation into possible criminal conduct. But I do have a brief for the fair application of law to every defendant, even those whose conduct I abhor.
The first issue is whether the trial should have been postponed and moved out of the city of Minneapolis, which recently reached a publicized mega-million-dollar settlement with the Floyd family. Some jurors may interpret that settlement as an admission of fault or guilt on the part of the city's employee.
Even more concerning is the likelihood that some jurors will fear that if they vote against a murder conviction, there may be violent reactions in their neighborhoods, and even against themselves. The fact that the names of the jurors are being kept secret may reinforce that fear.
These factors should have counseled postponing and moving the trial out of the city, with jurors who are less fearful of the consequences of an unpopular verdict.
This brings us to the issue of whether Chauvin has been properly charged. The most serious count is murder in the second degree, which requires proof beyond a reasonable doubt that Chauvin caused the death of Floyd "with intent to effect [his] death." There is no evidence that Chauvin intended to kill Floyd. Second-degree murder also applies to unintended killings that occur, for example, during a drive-by shooting, during the commission of a separate and independent felony such as bank robbery or "while intentionally inflicting...harm on a victim who was protected by a formal restraining order." None of these seem present in the Chauvin situation. If that is true, the charge of second-degree murder would be improper.
That may be why the prosecutor recently added a charge of third-degree murder, which is defined as follows: "whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act imminently dangerous to others." There are two plausible readings of that statute: one suggests that it applies only when the act is dangerous not only to the person who was killed, but to bystanders. This was true in the Breonna Taylor case, when the police shot into a darkened room, killing Taylor and endangering the lives of the people in the adjoining apartment. Under this reading, the statute would not apply to placing a knee on the neck of an individual—which poses only a danger to the victim and not to "others." The other plausible reading is that the word "others" applies to anyone other than the defendant. That is the reading accepted by a recent appellate court decision, now on appeal.
Regardless of how the Minnesota courts resolve this ambiguity, the Supreme Court has ruled that "due process requires 'fair warning'" that an action constitutes a crime under the clear language of the statute.
If the third-degree murder statute is reasonably subject to two interpretations, the law requires that ambiguities be resolved in favor of the defendant. This is especially the case when another homicide statute leaves no ambiguity about its clear application to the facts. That is the situation in the Chauvin case.
Here are the words of the statute defining manslaughter in the second degree: "A person who causes the death of another...by the person's culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death." This is so close to what is alleged against Chauvin, it is as if the statute were drafted specifically to cover this case.
Given this similarity, two legal principles require that Chauvin be charged with manslaughter in the second degree, and not with murder in the second or third degree. The first is that when there are multiple statutes that arguably cover an alleged crime, the state should charge the one that most closely fits the facts. This is because the legislature, by enacting the closest statute, plainly intended it to apply to the conduct at issue. That widely accepted principle of statutory construction should be applied in criminal cases.
The second principle is that of "lenity," and it has deep roots in our legal system. It requires that when there are equally plausible interpretations of criminal statutes, the courts must apply the one that is most protective of the defendant. Minnesota's statutes do not give rise to equally reasonable interpretations. The one that favors the defendant is more reasonable; it would require applying the manslaughter and not the murder statute to Chauvin's conduct.
If this were an ordinary case, it would be much easier for a prosecutor simply to charge manslaughter. But there are understandable pressures on this prosecutor to include murder among the charges, because so many people believe that Chauvin murdered Floyd. However understandable the reasons may be, overcharging Chauvin would be a mistake. Political and ideological concerns have no proper place in a criminal courtroom.
Finally, there is the issue of whether Chauvin's acts were the legal cause of Floyd's death. Homicide statutes require proof of causation, raising complex issues of science, law and morality.
The defense will argue that the knee-on-neck method of subduing a suspect is consistent with Minneapolis police protocol and that none of the many other suspects to which it was applied died. Therefore, Chauvin's use of the protocol could not have been the cause of this death—it resulted from other factors that were not present in the cases where the protocol was used without causing death.
The prosecution will argue that if Chauvin had not kept his knee on Floyd's neck for nearly 9 minutes, Floyd would still be alive.
Each side has a point, and a lot will turn on the judge's instruction. If he tells the jury that the defendant's act must be the "but for" cause of death, the prosecution will win (despite the fact that there may have been other "but for" causes). If, on the other hand, he instructs that the act must be the major cause, a substantial cause or the proximate cause, the defense may prevail or a hung jury may result.
This may look like an open-and-shut case morally and politically, because it is so clear in retrospect that Chauvin should never have kept his knee on Floyd's neck. But it is far from an open-and-shut case legally. So stay tuned and wait for the evidence, arguments and instructions. It's good that the trial is being televised, so that viewers can see for themselves how complex the legal issue may turn out to be.
Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes.
The views expressed in this article are the writer's own.
