Can the prosecution prove Chauvin kept his knee on Floyd’s neck to hurt him?

Jury selection is underway this week in the trial of former Minneapolis police office Derek Chauvin, who is charged with second-degree murder and second-degree manslaughter in the death of George Floyd in May of last year. 

Floyd’s killing sparked world-wide protests over police violence and reignited the Black Lives Matter movement, drawing an estimated 15 to 26 million participants in 2020. An appeal of the trial court’s decision to dismiss a third count against Chauvin for third-degree murder threatens to delay the trial. For the prosecution, a pause is probably worth it.

The difference between the third- and second-degree unintentional murder charges under Minnesota law boils down to intent. For second-degree murder, the prosecution must prove that, at the time of Floyd’s death, Chauvin caused him serious bodily harm. For third-degree murder, the prosecution’s burden is lower: it only needs to prove that Chauvin acted recklessly — not with the subjective intent to hurt Floyd specifically. 

Here’s how the trial judge described the two charges under Minnesota law. For both, the prosecution must prove Floyd’s death and that Chauvin caused Floyd’s death.

These two elements are probably readily established by witness videotapes of Floyd’s killing and other security footage showing Chauvin pinning Floyd to the ground with his knee on his neck for at least eight minutes and 15 seconds — a full minute after Floyd went limp and 20 seconds after paramedics arrived.

On these facts, in order to prove second-degree unintentional murder, prosecutors must additionally show: that Chauvin intentionally inflicted or attempted to inflict bodily harm on Floyd; or he caused Floyd to fear immediate bodily harm or death; and that he inflicted substantial bodily harm on Floyd.

Again, proving the third step — the fact that Chauvin harmed Floyd — is the easy part. The harder part for prosecutors to show is Chauvin’s subjective intent.

By contrast, third-degree murder has no requirement that the prosecution prove Chauvin’s subjective state of mind vis-à-vis Floyd at the time of the killing. Instead, the government must establish beyond a reasonable doubt that Chauvin’s conduct was “eminently dangerous to other persons and was performed without regard for human life.”

The government must still prove that Chauvin intentionally kept his knee on Floyd — i.e., it wasn’t done by mistake or accident. But for third-degree murder, it need not prove that Chauvin was intentionally out to hurt Floyd as opposed to acting in a way that was singularly focused on executing his duties as a law enforcement official, albeit recklessly.

If the third-degree charge gets back into the case, the jury will have a broader menu of charges from which to pick for conviction. Second-degree murder carries a sentence of up to 40 years in prison in Minnesota. Third-degree murder triggers 25 years. If convicted on the other pending charge — second degree manslaughter — Chauvin will only serve up to 10 years in prison. 

So, without the third-degree murder charge in the case, the options are 10 or 40 years in prison for Chauvin, a distinction that hinges on proof of his subjective intent. If the jury is convinced that this was merely a tragic situation that got out-of-hand — rather than a murder that Chauvin intended to cause by virtue of a desire to hurt Floyd — the possible maximum sentence on conviction will be much lower. Reinstating the third-degree murder charge could also give the prosecution more leverage to secure an acceptable plea agreement.

The trial judge dismissed the third-degree murder charge on the grounds that the Minnesota law establishing the elements of the crime requires that Chauvin’s actions that caused Floyd’s death be eminently dangerous “to others.” Because there weren’t other people in harm’s way at the time of Floyd’s death, the court reasoned, third-degree murder is off the table. The appeals court disagreed, reversing the trial court’s decision and deciding that third-degree murder is a viable charge against Chauvin. Chauvin’s counsel reportedly appealed that reversal to the Minnesota Supreme Court. Everyone must wait for the Minnesota Supreme Court’s final say.

Meanwhile, the government has asked the appeals court to stay the trial for at least 30 days while the Minnesota Supreme Court decides what to do about the third-degree murder charge. Chauvin’s defense says no — the trial should proceed. The government is worried that if the trial proceeds before the Supreme Court rules and the ruling ultimately upholds the intermediate appeals court’s decision that the third-degree charge belongs in the case, it could be too late to add it back in. The Constitution’s Double Jeopardy Clause bans the prosecution of an individual twice for what amounts to the same crime. 

For Chauvin’s part, if the Minnesota Supreme Court does uphold the government’s bid to prosecute him for third-degree murder, his lawyer will likely argue that due process requires that he have more time to prepare a defense. If that request is granted, the trial could be delayed even longer than 30 days. The prosecution apparently takes the position that no extra preparation is needed to defend the additional charge.

This is a relatively rare criminal case in which the law and facts decided could have a massive ripple effect across the social and political landscape. There is no question that, given the international interest in the case and the ongoing unrest in Minneapolis, it is vital that the judicial system gets it right. The rest of us should take a deep breath and exercise patience — something that Floyd, heartbreakingly, said he could not do.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” “What You Need to Know About Voting — and Why,” and the forthcoming “How to Think Like a Lawyer–and Why.” Follow her on Twitter and Instagram @kimwehle.