Prosecutors of George Floyd Police Officers Will Struggle to Get Four Convictions

Amid nationwide protests after the killing of George Floyd, Minnesota Attorney General Keith Ellison last week bumped up the top charge against Derek Chauvin, the officer who pinned Floyd's neck under his knee for almost nine minutes, to second-degree murder, carrying a 40-year maximum term. Ellison also lodged charges against the other three officers at the scene, of aiding and abetting second-degree murder.

Now that murder charges have been leveled against all four officers, the question is: Will they stick? Prosecutions of police officers are notoriously difficult to win, and the second-degree murder charges here are quite aggressive—they wouldn't even be legally possible in most states—but prosecutors have a real chance of convicting Chauvin, legal experts say. Winning jury verdicts against at least two of his alleged accomplices will be challenging, though. (The officers were all fired shortly after the incident, and, after last week's charges, are now in custody. Their lawyers either declined to comment or did not respond to Newsweek messages.)

The accused officers' likely defense strategies are beginning to come into focus. Clearly, "cause of death" will be one important issue. The Hennepin County medical examiner found that Floyd died from "cardiopulmonary arrest" caused by a confluence of circumstances. These included his being restrained by the officers—including "neck compression"—but also included "severe" underlying heart disease and powerful drugs in his system including fentanyl and methamphetamine. The county's autopsy report also opened up some obvious avenues of attack for defense lawyers, finding "no life-threatening injuries" and no specific neck injuries. (In contrast, two medical experts hired by the Floyd family found that Floyd died from "asphyxiation from sustained pressure.")

Another likely focus for the two most junior officers—who reportedly earned their law enforcement licenses just last August—will be "chain of command." During the incident one of the rookie officers, Thomas K. Lane, repeatedly urged turning Floyd on his side—apparently to let him breathe more easily—but was overruled each time by Chauvin, the 19-year veteran. A jury will probably be asked to grapple with whether the more junior officers were justified in deferring to the much more senior officer, or should have defied him under these life-and-death circumstances.

Defending Chauvin himself will be more challenging. The chilling videos may prove too damning for any lawyer's argument to overcome. As longtime Minneapolis criminal defense lawyer Joe Friedberg puts it: "When was the last time you had a guy killed on video while he's begging for his life?"

To understand the charges and the defenses, first review the grisly facts. The basics are fairly clear thanks to police scanner recordings and surveillance video from nearby buildings (obtained by the New York Times and the Washington Post): a 911 call transcript; a fire department incident report; the criminal complaints; the autopsy reports; and at least two bystander cellphone videos—especially the wrenching, viral one that bystander Darnella Frasier posted on her Facebook page. (Even more revealing videos are likely to surface. According to the criminal complaints, the body-worn cameras of the two rookie officers, Lane, 37, and J. Alexander Kueng, 26, were running throughout the incident.)

At about 8:01pm on May 25, an employee at the Cup Foods convenience store, at the corner of East 38th Street and Chicago Ave. in Minneapolis, placed a 911 call. A man had just bought cigarettes with a counterfeit $20 bill, he said. The man was still across the street in a parked Mercedes SUV. Two store employees had asked him to return the cigarettes, but were rebuffed. The man was "awfully drunk and he's not in control of himself," the 911 caller said.

The first squad car, containing Lane and Kueng, arrived on the scene at 8:08. The officers approached the SUV. George Floyd, 46, was in the driver's seat. (Another man was in the front passenger's seat, and a woman was in back.) As Lane spoke to Floyd, the officer "pulled his gun and pointed it at Mr. Floyd's open window," directing Floyd to show his hands, according to the complaints.

After Floyd put his hands on the steering wheel, Lane re-holstered his weapon. Lane then pulled Floyd out of the car and handcuffed him. Floyd "actively resisted," according to the original complaint filed against Chauvin, but "became compliant" after he was cuffed. (The second complaint does not mention resistance at this stage. The accounts in the first and second complaints are close, but not identical.)

Lane walked Floyd to a sidewalk, and sat him down on the ground. Floyd said "thank you, man," and was "calm," according to the second complaint. Lane saw "foam" at the corners of Floyd's mouth. He placed Floyd under arrest for counterfeiting.

At 8:14, Lane and Kueng walked Floyd to the driver side of the squad car. Floyd "stiffened up" and fell to the ground, according to the complaints. The officers lifted him back up. Floyd told them that he wasn't resisting, but he wouldn't get in the car, saying he was claustrophobic.

At that point—about 8:17pm, according to a New York Times reconstruction of events—Chauvin, 44, and the fourth officer, Tou Thao, 34, arrived in another squad car. The four officers tried to force Floyd into the back seat of the first squad car, but he wouldn't go, the complaints allege. (Floyd was 6 feet 4 inches and 223 pounds, according to the autopsy that was later performed.)

Something important happened at this point that the officers' defense lawyers will likely emphasize. Either "while [Floyd was] standing outside the car" (according to the first complaint) or "as the officers were trying to force Mr. Floyd in[to] the backseat," Floyd began protesting that he couldn't breathe. The defendants may argue that this shows that Floyd began suffering from some sort of medical crisis even before Chauvin first placed his knee on his neck.

At some point, Chauvin went around to the passenger side of the squad car. He was trying to pull Floyd in from that side while the others pushed him in from the driver side. At 8:19:38, for reasons that aren't clear, Chauvin pulled Floyd out of the car from the passenger side, where Floyd fell to the ground, face down and, of course, still handcuffed.

This is when the ordeal that most of us have seen begins. Lane held Floyd's legs; Kueng held his back; and Chauvin "placed his left knee in the area of Mr. Floyd's head and neck," according to the complaints (and bystander video). "Police are trained that this type of restraint with a subject in a prone position is inherently dangerous," according to both complaints.

The fourth officer, Thao, stood a few feet from Chauvin, according to bystander and surveillance videos. He was keeping a growing number of bystanders at bay, and ignoring their increasingly urgent pleas on Floyd's behalf.

While on the ground Floyd continued to repeat, "I can't breathe"—sixteen times, according to the New York Times video analysis. He also said "mama" and "please" multiple times, according to the criminal complaints. On one occasion he said, "I'm about to die."

At some point an unidentified officer responded to Floyd, "You are talking fine," according to the complaints. But Officer Lane, one of the least experienced, was evidently uncomfortable with what he was seeing.

"Should we roll him on his side?" he asked.

"No, staying put where we got him," Chauvin responded.

"I am worried about excited delirium or whatever," Lane said.

"That's why we have him on his stomach," Chauvin replied.

At 8:22 the officers called for non-emergency medical assistance, reporting bleeding from Floyd's mouth, according to the Times and Post accounts. A minute later the call was upgraded to an emergency.

With extraordinary precision, the complaints report that Floyd stopped moving at 8:24:24, and that the "video"—presumably from one of the officers' body-cams—"appears to show Mr. Floyd ceasing to breathe" at 8:25:31.

"Want to roll him on his side," Lane said around then—his third comment.

Kueng checked Floyd's pulse and said, "I couldn't find one." None of the officers moved from their positions, according to the complaints.

Chauvin did not remove his knee from Floyd's neck until 8:27:24, when the EMT ambulance arrived. Floyd was loaded into it on a gurney but never regained consciousness. He was pronounced dead at a nearby hospital at 9:25pm.

Chauvin had his knee on Floyd's neck for 8 minutes and 46 seconds in all, according to the complaints. "Two minutes and 53 seconds of this was after Floyd was non-responsive," they report.

The Charges

The initial charges were filed on May 29, accusing only Chauvin. Hennepin County Attorney Mike Freeman charged him with third-degree murder and second-degree manslaughter. Both of these counts involve so-called "nonintentional" crimes, which do not require proof that the accused intended to cause death or even harm.

The manslaughter charge—punishable by up to 10 years—can be proven if Chauvin took Floyd's life with "culpable negligence," i.e., by "creating an unreasonable risk and consciously [taking] the chances of causing death or great bodily harm" to him.

The third-degree murder charge—known as "depraved mind" murder—requires a worse frame of mind, but still one that falls short of an intent to kill. The classic example, explains Minneapolis defense lawyer Peter Wold in a Newsweek interview, "is when someone takes a machine gun and shoots continuously at a passenger train going by. He doesn't have any specific, intended victim, and yet the act is sick and depraved, with no concern for life." Depraved-mind murder carries a 25-year maximum sentence.

Though "depraved mind" might seem a perfect description of Chauvin's apparent indifference to Floyd's desperate pleas, it turns out that there may be a major technical, legal hurdle to using that charge in Chauvin's case.

"The law doesn't support it," says criminal defense veteran Friedberg, who has practiced in Minneapolis for more than 50 years. He points to a 2006 ruling of the state supreme court which held that "depraved mind murder ... cannot occur where the defendant's actions were focused on a specific person."

The law isn't crystal clear on the point, however. In fact, another Minneapolis police officer, Mohamed Noor, was convicted of depraved-mind murder just last year in the shooting death of an unarmed woman, Justine Ruszczyk, who had called 911 to report a possible assault. But Noor's case is now on appeal, and the legal propriety of the depraved-mind murder charge is one of the issues being challenged.

As demands arose for the other three officers to also be charged, prosecutors faced a second potential legal problem with the depraved-mind murder charge.

As a legal matter, it's unclear whether you can charge someone as an accomplice to a non-intentional crime, like depraved-mind murder—or like manslaughter, too, for that matter, which is a crime of negligence. For accomplice liability, the accused needs to intend to help someone else commit a crime.

"It doesn't make sense to intentionally help somebody to be negligent," says criminal defense lawyer Friedberg.

"This is one of the classic criminal law conundrums," says Richard Frase, a professor of criminal law at the University of Minnesota Law School. "Can you aid and abet an unintentional crime?" he says. "None of the third-degree murder cases I've ever seen have involved accomplices."

Attorney General Ellison may have solved these problems with the new charges he added last week. On June 3, two days after Minnesota Governor Tim Walz ordered Ellison to take over the lead role in the prosecution, Ellison added a second-degree "felony murder" charge against Chauvin, while charging Lane, Kueng, and Thao as accessories to that charge. (Though the family has demanded a first-degree murder charge, punishable by life imprisonment, that would require proof that Chauvin murdered Floyd with "premeditation," which would be exceedingly hard to prove on the facts of this case.)

"Felony murder" can be charged when someone unintentionally dies during the during the course of an "underlying" felony. Many states require that the underlying felony be an inherently violent crime like robbery or rape.

Minnesota's felony murder law is among the nation's broadest, however, according to Professor Frase. The state is one of a minority that permit assault to serve as the underlying felony, which is what made it possible for Ellison to charge all of these officers with felony murder. So long as Chauvin intended to inflict "bodily harm" on Floyd (assault), and he in fact inflicted "substantial bodily harm" (felony assault), he can also be charged with felony murder if Floyd's death resulted, even unintentionally. If the other officers intended to help Chauvin commit the felony assault, they can be charged as accomplices to felony murder.

Of course, no matter what the law says, a jury might find the snowballing logic of felony murder to be unfair and unfounded, especially when it comes to the alleged accomplices. It is notoriously difficult to convict police officers of crimes to begin with. Former officer Noor, convicted last May, is believed to be the first Minnesota police officer convicted of murder for an on-duty killing. And while he was convicted of depraved-mind murder, he was acquitted of the top charge, felony-murder. (Officer Noor was black while his victim was white—the opposite of Officer Chauvin's and victim Floyd's situations; that may have an influence on a jury.) Similarly, the Minnesota police officer who killed Philando Castile during a traffic stop outside St. Paul in 2016—the tragic event live-streamed on Facebook—was acquitted of all charges in 2017.

Building a Defense

"Cause of death" will be a focus of all the officers' defense, according to defense lawyers Friedberg and Wold. The autopsy findings so far have been confusing, and we have not yet heard from the medical experts who will doubtless be retained by the defendants.

The original criminal complaint against Chauvin, filed on May 29, said that the Hennepin County Medical Examiner's autopsy showed "no physical findings that support a diagnosis of traumatic asphyxia or strangulation." (The autopsy report at that time was preliminary and "pending," because toxicology tests had not yet been completed.) The complaint went on to say that "the combined effects of Mr. Floyd being restrained by the police, his underlying health conditions, and any potential intoxicants in his system likely contributed to his death."

That language was removed from the upgraded complaint against Chauvin. The new complaint just says that "Officer Chauvin's restraint of Mr. Floyd ... for a prolonged period was a substantial causal factor in Mr. Floyd losing consciousness, constituting substantial bodily harm, and Mr. Floyd's death as well."

After completing the toxicology tests, the ME's office issued a press release and final report giving the cause of death as "cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression." Still, the final report reported "no life-threatening injuries" and no specific injuries to the neck. The key underlying health problems were identified as "arteriosclerotic heart disease"—characterized as "severe"—and "hypertensive heart disease." The main intoxicants were identified as fentanyl—the powerful synthetic opioid—and methamphetamine.

The family's own privately-retained medical experts reached very different findings. They concluded that Floyd died from "asphyxiation from sustained pressure" when his neck and back were compressed during his arrest. A lawyer for the family told CNN that any intoxicants or medications in his system were "irrelevant to the cause of death." One of the family's experts, Michael Baden—who was the New York City medical examiner from 1978 to 1979—told CNN that there was "no other health issue that could cause or contribute to death."

Amid these conflicting perspectives—which will doubtless only intensify once the defendants' own experts weigh in—it seems likely that Chauvin's counsel will contest the cause of death. Although both the county medical examiner and the family's experts declared the "manner of death" to be "homicide," those determinations will not be legally binding on the jury.

The officers will likely argue that Floyd was undergoing some medical crisis independent of their actions, reflected by the fact that Floyd was already having trouble breathing before Chauvin put his knee on his neck. The argument will be that "if Floyd had not been under these preexisting conditions, [Chauvin's] actions would not have killed him," Friedberg explains. Even if the argument doesn't win acquittal, he continues, it "may help try to get a compromise verdict."

The Alleged Accomplices

As for the alleged accomplices, their defenses—especially those of the rookies, Lane and Kueng—will probably focus on "chain of command." They may argue that they were deferring to the judgment of the most senior officer, Chauvin, says Friedberg.

One key focus of contention will be Lane's statements during the event—repeatedly asking Chauvin whether they should roll Floyd onto his side. But it's not certain which way those statements cut.

Prosecutors could actually argue that they hurt Lane's case. "It shows you he knew this guy was in distress," professor Frase says, imagining the state's argument. "Police officers have a duty to protect the public, including suspects, from unjustified serious harm," Frase continues. Prosecutors could claim that, "in spite of being a junior officer, he should have gotten up."

On the other hand, jurors might find that "that's a lot to ask," Frase says. In fact, if jurors believe Lane made a "reasonable effort" to prevent Chauvin from committing the crime, they could find that Lane "abandoned" any criminal purpose he might have had, and can't be convicted as an accomplice.

On balance, Lane's statements are probably helpful to him and unfavorable for the prosecution, criminal defense lawyer Wold believes. "Prosecutors need to show Lane knew he was aiding and abetting an assault," he says. How are they going to prove that, he asks rhetorically, when Lane seemed to be asking Chauvin to let up? "Naturally in that situation [the rookies would] defer to senior officers," Wold says, predicting the defense argument.

That leaves Thao—the officer who stood between Chauvin and the onlookers. He never touched Floyd. Does that put Thao in the best legal position of all?

No, say both Friedberg and Wold. "He's within three feet of Floyd," says Friedberg. "He hears what Floyd is saying. He's not even curious. And he's more of a veteran than the others."

Not only that, Friedberg continues, but Thao's "making sure nobody can help Floyd. That's like being the lookout in a burglary. To me, he looks worse than the other two."

There will be more evidentiary twists and turns in this case, as well as important procedural ones. The most crucial might be whether the defendants seek, and win, a change in venue, so that the case can be tried before a jury in another part of the state. For what it's worth, every Minnesota county outside the Twin Cities is more white and conservative than Minneapolis. (Changes of venue are rarely granted in Minnesota, however, according to Friedberg.)

Still, a top-count conviction for Chauvin seems feasible; acquittals appear possible for at least two of the alleged accomplices.

Would that be justice? And how would a split result be received in Minneapolis—and everywhere else in the world, for that matter? Those questions may have greater impact than the legal ones.