George Floyd

Derek Chauvin May Get a Sentence Much Shorter Than the One William Barr Thought Would Be Seen As Too Lenient

The former attorney general reportedly nixed a plea deal that involved a sentence of more than 10 years but would have precluded a federal prosecution.

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A few days after George Floyd died under the knee of Minneapolis police officer Derek Chauvin last year, William Barr, then the U.S. attorney general, reportedly nixed a plea deal that would have included a prison term of more than 10 years. Barr's approval was necessary because Chauvin wanted a guarantee that he would not face federal civil rights charges in connection with Floyd's death. The New York Times reports that Barr did not want to preempt Minnesota Attorney General Keith Ellison, who took charge of the case a few days later. Barr also was wary of inviting public outrage and unrest by approving a punishment less severe than many people thought was appropriate.

Even if Chauvin is convicted of second-degree murder, the most serious charge he faces in a state trial that is scheduled to begin on March 8, his sentence is likely to be only a bit longer than the one he reportedly was prepared to accept last May. If the jury rejects that charge but convicts him of manslaughter, his sentence probably will be much shorter than the one Barr thought would be perceived as too lenient. Without the plea deal that Barr rejected, Chauvin also could face a federal charge under 18 USC 242 for killing Floyd while violating his constitutional rights under color of law, which carries a maximum penalty of life in prison. But meeting the intent requirement for that charge could prove challenging.

Chauvin is charged with violating Subdivision 2 of Minnesota's second-degree murder statute, which applies to someone who "causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense." While that crime carries a maximum penalty of 40 years in prison, the presumptive penalty under Minnesota's sentencing guidelines is 150 months, or 12.5 years.

That charge is possible only because Minnesota, unlike the vast majority of jurisdictions that authorize murder charges against people involved in felonies that turn deadly, does not require an independent crime, such as burglary or robbery, to convict someone. In Chauvin's case, the underlying felony, third-degree assault, is the same act that caused Floyd's death.

As Ted Sampsell-Jones, a professor at Mitchell Hamline School of Law in St. Paul, observed in June, that is a "particularly weird" version of felony murder, a doctrine that criminal justice reformers commonly criticize because it can result in severe punishment for people peripherally involved in crimes that result in someone's death, regardless of their intent or knowledge. "Nearly all" jurisdictions that allow felony murder charges, Sampsell-Jones noted, follow the "independent felony" rule, which says "the underlying felony—known as the predicate felony—must be separate from the act causing death." That "generally means that assault and battery cannot serve as the predicate felonies for felony murder."

Since that rule does not apply in Minnesota, an assault that unintentionally kills someone, which ordinarily would be treated as manslaughter, can instead be charged as murder, dramatically increasing the potential penalty. Chauvin is also charged with the lesser offense of second-degree manslaughter, which seems to easily fit the facts of the case but carries a much less severe penalty.

The manslaughter charge alleges that Chauvin, who knelt on Floyd's neck for more than eight minutes while arresting him for buying cigarettes with a counterfeit $20 bill, caused his death "by his culpable negligence, creating an unreasonable risk and consciously [taking] the chances of causing great bodily harm to another." That offense carries a maximum penalty of 10 years in prison, but the presumptive sentence is four years, less than one-third the presumptive sentence for felony murder.

Chauvin originally was charged with third-degree murder, which carries the same presumptive sentence as felony murder, although the maximum (25 years) is shorter. The charge alleged that Chauvin caused Floyd's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." That charge, which was eventually dropped, was controversial because some case law suggests it does not apply to conduct that targets a particular person. But Sampsell-Jones notes that former Minneapolis police officer Mohamed Noor, who received a 150-month sentence in 2019 for killing Justine Damond after she called 911 to report a possible assault in the alley behind her house, was convicted of third-degree murder, "even though he pointed a gun at someone's chest and pulled the trigger."

If Chauvin is convicted of second-degree murder, he is apt to face a sentence similar to Noor's, which is in turn similar to the sentence contemplated in the plea deal that Barr rejected, although perhaps somewhat longer. If the jury instead convicts Chauvin of manslaughter, his sentence would be less than half as long as the one he reportedly was willing to accept last May.

A successful federal prosecution could extend Chauvin's imprisonment, but only by punishing him again for the same conduct. According to the Supreme Court's controversial "dual sovereignty" doctrine, that would not count as double jeopardy. But convicting Chauvin under 18 USC 242 would require proving that he "willfully" violated Floyd's rights, which is not easy. The Supreme Court has said that willfulness in this context requires that the defendant violated someone's rights "in open defiance or in reckless disregard of a constitutional requirement."

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  3. Should he get a jail sentence at all, is a better question.

    Cop placing overdosing guy in the position they were trained to place breathing-distressed individuals in, doesn’t equal murder. May not even equal negligent homicide. I’ve no doubt Keith Ellison is up to screwing up the case, and causing Minneapolis to burn again, though.

    1. That depends on whether Chauvin’s lawyer can prove Floyd actually died of an overdose and not the actions of his client. That might be a hard sell, especially if the jurors are worried about what will happen if they let Chauvin walk. I’m sure that will be a big factor in their deliberations.

      1. It won’t matter. At this stage those watching are looking for an excuse to protest and burn first.

        He walks = burn it down
        He gets sentenced to not murder = burn it down

        1. You forgot one:
          Sentenced to murder but sentence not long enough = burn it down

        2. Sentenced to life without parole = burn it down in celebration!

      2. The 3x lethal dose of fentanyl in his blood probably helps.

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        2. Closer to 4x a lethal dose, unless he was a regular opiate user.

          1. I understand the validity of your post but it is really hard not to assume he was a regular opiate user.

      3. That depends on whether Chauvin’s lawyer can prove Floyd actually died of an overdose and not the actions of his client.

        Possibly true, but the exact opposite of how it’s supposed to work.

        1. Fortunately, DFG’s comment isn’t an accurate description of how it will work. What Chauvin’s lawyer has to do is provide enough evidence that Floyd might have died absent the actions of his client that it casts reasonable doubt on the idea that Floyd caused his death. It’s pretty likely that if the defense didn’t say or do anything, the prosecution would present sufficient evidence to paint a convincing picture that Chauvin’s actions caused Floyd’s death.

      4. The medical examiner wrote….wrote, for a jury to see…. that Floyd’s lungs were three times their normal weight from pulmonary edema, which means they were full of fluid to the point that Floyd could not breathe. This is how opioids often kill from significant overdoses. It is caused or exacerbated by congestive heart disease, which Floyd had. It is caused or exacerbated by stress, which Floyd had from being arrested and resisting. It is not caused by neck compression. In addition, the medical examiner also wrote that he would have listed the cause of death as acute Fentanyl overdose based upon the autopsy, but changed it to murder after an illegal meeting with prosecutors who told him of the officers holding Floyd down. (This resulted in a very, very rare dismissal of the prosecution team from the case by the judge for prosecutorial misconduct… a fact which would also play into any appeal.)
        Add in the fact that the MPD written procedures indicate to officers that they place combative suspects that are in medical distress into a prone position (onto their stomachs) with a knee onto the neck or back, until medics arrive….. written procedures which actually have an example image which looks exactly like what officers did with Floyd. This is supported in the video recorded by the witness in which officers discuss and confirm they are following procedure. In the MPD training white papers on prone restraint, it even states that to untrained members of the public, this restraint technique, which is used specifically to provide minimum injury to the suspect, looks to laypeople like it is injuring someone, and to beware onlookers reaction. This is why Chauvin dismissed the witness complaint about how they were treating Floyd even though he was being taped. Remember, officers generally do not like to be video recorded. You can be sure that if Chauvin thought he was doing something wrong, he would have stopped it once he knew he was on camera.
        You are free to go research this yourself, but these facts are not in dispute….the jury will hear them.
        Based upon this, a jury may find Chauvin guilty, but any jury operating under ethical standards would not do so in a million years. There is enough direct evidence of reasonable doubt to drive a semi truck through, and further, the evidence points to Chauvin doing the right thing that he was literally trained to do, regardless of public ignorance on the subject.

        1. Thank you for the valuable information. Sullum just rambles on and on, you should be paid whatever he got for writing the article. You ought be a journalist for the NYT or the Washington Post. But then again, not. If Floyd were not black, Chauvin would get off much easier, but he will be a victim of modern race stuff.

      5. Even if they are not worried about the inevitable riot, they will likely be worried about the mob coming after their families. I am sure the prosecutor will bake sure that the jury cannot remain anonymous.
        It is kind of sickening to imagine being on that jury, and coming to a verdict not on the facts of the case, but on the relative fear of being hunted down by communists after the trial.

    2. That is the playbook. BLM should create a video montage of all the burned and looted buildings and play it on a 24hr loop for Black History Month so that we are all even more aware of modern black history.
      Distance is the only answer.

    3. If he can prove that he was trained/ordered to do this under these circumstances, I can’t see him convicted for anything.

      1. If that happens, U. S. Attorney General Merrick Garland will immediately announce federal civil rights charges, in an attempt to forestall riots.

  4. Sad as it may be, it will be very difficult to get a jury conviction. Everything Chauvin did is directly called for in the police manual that was in effect at the time including the knee to the neck. It is also not true that the defendant was arrested for passing a counterfeit bill. As the 911 call makes clear, the shop employees were concerned that he was a danger to himself and others because he was clearly under the influence of intoxicants while driving. The reality is that the defense has a very strong case. For better or for worse.

    1. Intoxication doesn’t justify murder. It doesn’t matter what random bystanders say.

      1. It matters that he was following the protocols found in the police manual. I’m not here to defend this guy. I’m just pointing out that he has a much stronger defense than many would like.

      2. The intoxication was the cause of Floyd’s death. It wasn’t murder. Or any homicide.

        1. The official autopsy ruled his cause of death homicide. Intoxication is a separate cause of death.

          1. Nope. Cause of death was “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.”

          2. A coroner’s conclusion is not legally binding in a criminal court of law. It is merely a piece of evidence.

          3. Let me quote the medical examiner in this case:

            [I]f he were found dead at home alone and no other apparent causes, this could be acceptable to call an OD.

            Now let me quote the DA’s charging document:

            The autopsy revealed no physical findings that support a diagnosis of traumatic asphyxia or strangulation,

            So, what we have in George Floyd is a man who, by the physical evidence, may well have died entirely as the result of a drug overdose.

            The official autopsy then says that it thinks that the subdual, restraint, and compression evident only in the video (not on the body) were causal factors . . . but then, the ME doesn’t have to prove any of that beyond reasonable doubt. He just has to think it’s probable that they were.

      3. Murder is a strong word. Trying to convict him of a murder could result in him walking. He didn’t murder Floyd and they have proof. Floyd murdered himself.
        Why all the love for Junkies?
        When I lived in the ghetto Junkies died regularly. People bet on how long they would live once they found the needle. Not every Junkie is Keith Richards.
        Bob……”Hey man, Joey the Junkie died”.
        Jim……..”Damn, what did he die of”?
        Bob…….”It was time”.
        Jim……..”Yep”. “It sure was, what a piece of shit”. “His poor Mother”.

        I never met a “hero” Junkie. Just murdering, thieving scumbags like “Saint George Floyd” the patron saint 0f misguided causes and false premise”.

        1. Exactly. That’s how Zimmerman walked when manslaughter was likely an easy conviction.

          1. Zimmerman was a real clear case of self-defense. His injuries bore out the story that Martin had him on his back on the pavement and was pounding his head on the cement real hard. Trayvon Martin was a worthless thug and POS who got exactly what he’d been looking for.

      4. Intoxication doesn’t justify murder.

        Well, first you have to establish that a murder occurred…and the evidence doesn’t support that.

    2. arrest whoever wrote the manual?

  5. Sullum is butt blasted that Barr (reportedly, by insane libshits) didn’t rule out federal charges against the policeman before an investigation.

    I used to come to this place to laugh at the lefty libertarians, but holy shit it’s just depressingly retarded now.

    1. Research project for one of you spergs: find one other case in the history of Reason where they advocated the federal government refuse to investigate and prosecute three days after an officer-involved death.

      1. They’ve shown zero interest in Ashli Babbitt a month later.

        1. Who? LOL.

          Telling, isn’t it?

  6. Suppose he goes to prison. How is he to be protected from the other inmates? Any term in jail is likely to be a death sentence.

    1. Not if the jailers don’t agree with it. Trust me, they know thousands of scumbags like “Saint Floyd”. Hell, they may know old George himself when he did time for putting a gun to the pregnant woman’s stomach.

  7. Based upon the evidence I’ve seen (especially the Coroner’s report stating that Floyd’s body contained a lethal dose of fentanyl, and the 20 minute audio/video footage before Floyd’s death that MN AG Keith Ellison refused to release for three months as BLM and Antifa riots destroyed American cities), Chauvin should be found not guilty.

    1. Odds are he walks.

      1. Odds are that’s what Ellison is hoping for.

    2. His body had three to four times a lethal dose of fentanyl, and he’d been complaining about being unable to breathe since before being placed in a restraining hold.

      That’s also common in opiate overdose events.

      He could breathe just fine, meaning inhaling and exhaling. Including talking. What wasn’t happening was CO2 being exchanged for O2 because his lungs were heavy with fluid.

    3. The progressive-controlled media’s refusal to show the full footage is disgraceful, and helped fuel the riots that cost so many lives and destroyed thousands of businesses and jobs.

      1. There has been, however, plenty of video of this event, including audio.
        Is there a single instance where Chauvin, or any of the officers uses a racial slur, directed at Floyd?
        So, what is it that makes this into a “racial” incident?
        Just because Floyd is black and Chauvin is white?
        Usually, what separates an assault from being your average, everyday offence, but gets turned into a “hate crime”, is the use of racial epithets by the instigator.
        That never happened.
        Not only was this not murder or manslaughter, but there is no basis for a federal charge of denying Floyd of his “civil rights”.
        Since Chauvin was acting on the established guidelines of his department, for how to treat an individual in Floyd’s condition, it wasn’t “police brutality”, either.
        The riots that followed had no legitimate justification.

        1. “The riots that followed had no legitimate justification.”

          Even assuming it were a genuine case of police brutality, that wouldn’t justify burning and looting businesses, killing security guards, etc.

          1. People forget the long term. Anyone that lives in those burned-out neighborhoods just lost much of the value of their homes. We lost half the value of our home after the busing riots. Those burned buildings never get rebuilt in those areas. There are still burned buildings in Detroit and Chicago from the 60s riots. Same shit, 50, 60, 70 years later. What will be achieved? Absolutely nothing but “free” Jordans and more intensified hatred by everyone that had to watch it.

        2. If Chauvin and he others are acquitted and the strongest evidence is that it was because they were following procedure taught to them as part of Minneapolis Police Dept. policy, then that could mean a better chance that Floyd;s survivors could win big in a civil suit against the city and the department. The plaintiffs strategy will be that the policy was no good because it resulted in his death, and the defendants will settle and change the policy (if they haven’t done so already).

      2. Odds Chauvins defense team refers to this refusal as The Big Lie ™?

  8. I live in Minneapolis. I have seen ALL the publicly released videos and the autopsy reports. IAAL and former prosecutor, in my opinion Chauvin will be found not guilty on all charges.

    1. Knowing that…..when are you leaving?

      1. But a knee in his neck for 8 minutes is guaranteed death. Unless of course you have proof that Chauvin did not have his knee on his neck for that long. Maybe his knee was on Floyd’s neck for only 5 seconds and all the videos out there are fake. Probably not. But if you want to make that argument, you can. But I’m about 99.99% it was a knee to his neck for 9 minutes that killed him.

        1. A knee to the side of the neck is *not* a strangulation hold.

  9. Why does nobody bring up the bodycam video where you can see the baggie of fentanyl in Floyd’s mouth before he get’s out of the car?

    Also the fact that almost a year to the day prior to his death, he was arrested for oxycontin trafficking and swallowed those pills during his arrest. The difference between then and now was he told the police, they got him to a hospital quickly and his life was saved.

    1. The truth doesn’t matter after the mob has formed. The “denizens of the ghetto” love rioting and looting.

      “The truth doesn’t get you paid”. Jessie Jackson

  10. “A few days after George Floyd died under the knee of Minneapolis police officer Derek Chauvin last year”

    No need to read anything after the first line. Like Biden, this Journalist has trouble with FACT.
    You should try reading the autopsy and toxicology report. Then get back to us.

  11. Except he’ll be acquitted because he followed his training and it was a drug overdose that killed Mr. Floyd.

  12. Sullum is seeing why Ayn Rand never wasted time arguing with mystics. The faith based fact that admits no contradiction is that Messr Chauvin FOUND that dead overdose victim on the sidewalk and only knelt on his neck to better rummage pockets for ID for next-of-kin purposes. Likewise any suggestion that NARAL mobilized women voters after the Trump-Schlafly harridan replaced Judge Ginsburg while 8 states conspired to try t overturn the ’72 plank that became Roe v Wade soon after the vote count is lèse-majesté against former Boss Trump AND conspiracy to shield rooshian chink hackers.

  13. Chauvin deserves to walk free….He’s the victim of the race/hate crime hoax that is George Floyd….the evidence of this is all of the race hustlers involved with the case…..this race/hate crime hoax exists for only one reason…..to justify the months of antifa/BLM violence & insurrection…..

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