Chauvin Attorney, Prosecutors Lay Out Sentencing Arguments

The former Minneapolis police officer could face up to 30 years in prison if any of five factors is met.

In this image from video, former Minneapolis police Officer Derek Chauvin listens as his defense attorney Eric Nelson gives closing arguments as Hennepin County Judge Peter Cahill presides April 19, 2021, in the trial of Chauvin at the Hennepin County Courthouse in Minneapolis. (Court TV via AP, Pool)

MINNEAPOLIS (CN) — Attorneys on both sides of former Minneapolis police officer Derek Chauvin’s murder case for the killing of George Floyd lined up their arguments on sentencing for Chauvin early Friday evening. 

Prosecutors are seeking an aggravated sentence for Chauvin, convicted April 20 of second- and third-degree murder and second-degree manslaughter, on the basis of five factors: that Floyd was a particularly vulnerable victim, that Chauvin treated him with particular cruelty, that he abused his position of authority as a police officer in doing so, that he committed the crime as part of a group of three or more, and that the crime was committed in the presence of children. They argued for, and Chauvin’s defense attorney Eric Nelson opposed, all five of those factors in memoranda of law published Friday. 

Chauvin was shown kneeling on Floyd’s neck for about nine and a half minutes in a viral video taped by a bystander on May 25, 2020. Floyd stopped breathing and was found to have no pulse well before Chauvin let up; he was pronounced dead at a hospital shortly afterward. Floyd’s death sparked protests and riots in Minneapolis and across the nation in the early summer of 2020, and Chauvin’s trial was widely viewed via livestream in a first for Minnesota courts. 

Chauvin faces a maximum sentence of 30 years for his highest charged offense, second-degree unintentional murder. The charge carries an absolute maximum sentence of 40 years, but other state statutes make that a near-impossibility in this case. Minnesota sentencing guidelines recommend 12.5 years in prison as a baseline for a first-time second-degree murder conviction, but Judge Peter Cahill has discretion to sentence him to as much as 15 years or as few as 10 years and 8 months if no aggravating factors are found. With a finding that any of the aggravating factors apply, the judge would have leeway to raise Chauvin’s sentence as high as that 30-year maximum. 

Assistant Attorney General Matthew Frank, who took the lead of Chauvin’s prosecution after Attorney General Keith Ellison’s office took it over from that of Hennepin County Attorney Mike Freeman, argued in his memorandum that Floyd was rendered particularly vulnerable by the fact that he was handcuffed and pinned to the ground in the prone position. Floyd’s intoxication and health conditions, he said, could also render him particularly vulnerable. 

Frank also argued that Chavin’s treatment of Floyd, who repeatedly cried out in pain and said that he couldn’t breathe before falling unconscious, was cruel.

“This use of force went well beyond the minimum amount of force necessary to commit unintentional second-degree murder,” he wrote. “Defendant’s prolonged restraint of Mr. Floyd was much longer and more painful than, for example, a near-instantaneous death by gunshot, which is one ‘typical’ scenario for this type of offense.”

He pointed out that Chauvin “responded dismissively to Mr. Floyd’s pleas,” saying “uh-huh” and telling him “it takes a heck of a lot of oxygen to say things.” 

Nelson objected to the state’s arguments on both of those factors. “Officers were authorized to both handcuff Mr. Floyd and restrain him as part of their lawful duties. Mr. Chauvin did not place the handcuffs on Mr. Floyd,” he wrote. “At the time Mr. Floyd was placed on the ground and restrained, he was not particularly vulnerable and there is no reason for Mr. Chauvin to have suspected that he was. Mr. Floyd was handcuffed in the course of a lawful arrest, and not as a part of the offenses for which Mr. Chauvin was convicted.”

He also pushed against the “particular cruelty” factor, arguing that Chauvin was aware that his colleagues had called for an ambulance and that the state could not prove that he’d inflicted gratuitous pain on Floyd. “The infliction of substantial bodily injury necessarily causes pain. The assault of Mr. Floyd occurred in the course of a very short time, involved no threats or taunting, such as putting a gun to his head and pulling the trigger, and ended when EMS finally responded to officers’ calls,” he wrote. 

Chauvin is the second police officer in Minnesota history to be convicted of murder for an on-the-job killing, and the first to be convicted of second-degree murder. His colleague Mohamed Noor was convicted of third-degree murder in 2019 in a case that created appellate turmoil during Chauvin’s own trial. That dearth of cases, Nelson argued, creates an issue for the state. “The defense is aware of no caselaw in Minnesota, precedential or otherwise, in which a peace officer’s position has been considered an aggravating factor for an upward departure in sentencing,” the defense attorney wrote. 

Frank saw it differently. “It is hard to imagine a more textbook example of a ‘relationship fraught with power imbalances’ than that between a police officer and an individual in his custody,” he wrote. “MPD policies provide that officers occupy a position of ‘public trust’ and ‘public faith.’”

“As a police officer in full uniform, Defendant had a ‘defined relationship’ of authority over Mr. Floyd, and was ‘in a position to dominate and control’ him,” Frank added. “That ‘position of control’ enabled Defendant to restrain Floyd, and therefore to ‘manipulate the circumstances’ of the incident ‘and commit the crime.’ And that is exactly what Defendant did.”

With Chauvin’s colleagues J. Alexander Kueng, Thomas Lane and Tou Thao still awaiting trial on aiding-and-abetting charges, the state also argued that their involvement justified an aggravating factor for crimes committed “as part of a group of three or more individuals who actively participated in the crime.” 

“As the body-worn camera footage demonstrates, Defendant acted in concert with Mr. Kueng, Mr. Lane, and Mr. Thao while committing the charged offenses. Defendant pressed his knee into Mr. Floyd’s neck and upper back for nine minutes and 29 seconds,” Frank wrote. “During that period, Mr. Kueng held down Mr. Floyd’s back and handcuffed arm. Mr. Lane held down Mr. Floyd’s legs. And Mr. Thao stood between Defendant and the bystanders, pushing the bystanders back to the sidewalk and preventing them from interceding.”

Nelson objected to that, pointing out that all three of the other officers are still awaiting trial. “At this point, Mr. Chauvin’s codefendants have merely been charged with accomplice liability for Mr. Chauvin’s actions— which places the burden on the State to prove beyond a reasonable doubt that the codefendants intentionally aided Mr. Chauvin in commission of the offense. This means that the codefendants must have been aware of Mr. Chauvin’s intent to commit third degree assault. However, the State has not yet met its burden of proving as much,” he wrote. “In fact, at this point the codefendants must be presumed innocent of the alleged offenses.”

Kueng, Lane and Thao are scheduled to go to trial in August. 

Also at issue was the fact that Floyd’s death was witnessed by several minors, four of whom testified at trial. One of those four, then-17-year-old Darnella Frazier, shot the viral video which was replayed frequently during the trial. Frank also pointed out that at least two other children were shown on cameras apparently witnessing the events.

Nelson argued that this case differed from established caselaw on the topic. “In most such cases, the crime was committed in a home or a location in which children were present at the outset, actually witnessed the crime, and were unable to leave the scene while the crime was being committed,” he wrote. “The defense is unaware of any case in Minnesota in which the presence of children factor has been considered in a bystander-witness situation where the children, themselves, were not placed in danger.”

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