With sentencing, appeals and another trial still to come, professors from two Twin Cities law schools offered their perspectives on the future of Derek Chauvin’s case and the Minneapolis Police Department.
MINNEAPOLIS (CN) — With Derek Chauvin in custody after his murder conviction for the killing of George Floyd, celebrations broke out Tuesday night around the Twin Cities. The verdict is far from the case’s end, though, with another trial for Chauvin’s three colleagues on the horizon and sentencing still two months away. Legal experts in Minneapolis and its closest neighbor, the state capital of St. Paul, chimed in Wednesday on the pending issues in Chauvin’s case as well as its possible impact on the future of policing.
The next big hurdle in Chauvin’s case is sentencing. Though the former officer was convicted of all charges, his sentence will be determined by the most severe conviction, second-degree murder. That charge comes with a maximum sentence of 40 years in prison, but the typical sentence is between 10 and 15 years and the recommended sentence is 12 and a half years, according to Rachel Moran, a professor at the University of St. Thomas School of Law. Prosecutors have also raised a handful of causes for an upward departure in Chauvin’s sentencing, and Moran agreed with two professors from St. Paul’s Mitchell Hamline School of Law that at least a few were a sure bet.
The five grounds cited by prosecutors for a higher sentence include that Chauvin’s crime was witnessed by a child; that he abused a position of authority in committing it; that Floyd was particularly vulnerable by virtue of being handcuffed, in Chauvin’s custody and calling out for help; that the murder was particularly cruel; and that it was carried out with the assistance of three or more other people.
Chauvin waived his right to have a jury decide his sentence at the beginning of deliberations, so Judge Peter Cahill will be evaluating all those factors.
“It’s really just a practical decision. If the jury’s going to convict him… they were implicitly finding that these aggravating factors were present,” Moran said.
Moran and Mitchell Hamline’s Rick Petry and Bradford Colbert agreed that at least the “witnessed by a child” factor was sure to apply. Several minor eyewitnesses testified at Chauvin’s trial, including a 9-year-old.
The trio, interviewed separately, differed on some other issues. Colbert said he was interested in the outcome of the “group of three or more” factor.
“It was clearly intended for gangs,” he said of the statute which created the factor. “And so if you believe the Minneapolis Police Department is a gang, it’s kind of an interesting reading of that.”
Colbert added that this was a separate legal issue from the upcoming trial of three other officers involved in Floyd’s deadly arrest, currently scheduled for August.
Petry said he would be interested to see if Cahill considered that trial anyway. “It has yet to be adjudicated whether they are going to be found criminally liable for helping, and so I don’t know where he’ll land on that one,” he said.
The possibility of Floyd being considered particularly vulnerable was also not a certainty for all the experts.
“He’s handcuffed and on the ground, I think it’s pretty clear,” Colbert said.
But Petry was less certain.
“I think that’s a point of contention. The defense theory was that he was high on opioids, and all this kind of stuff. If that’s true, then perhaps he was a vulnerable person,” he said. As to the handcuffs and Floyd’s cries for help, those were on video. “I think the evidence was pretty clear on that, but again, I don’t know where Judge Cahill will land on that,” he said.
Looming over both sentencing and the appeal is the case of Mohamed Noor, the only other officer in Minnesota’s history to be convicted of murder for an on-duty killing. Noor is appealing his third-degree murder conviction and accompanying 12-year sentence to the Minnesota Supreme Court.
“The standard line about Judge Cahill, is ‘oh, he’s such a fair judge.’ And I do think he tried to be fair in this case,” Moran said. “But what he’s certainly going to have in mind is that Mohamed Noor received a 12-year sentence for a lower charge, in a certainly less egregious situation. He has to be thinking about that.”
Colbert and fellow Mitchell Hamline professor Ted Sampsell-Jones predicted a sentence closer to 25 years.
“Tough but not max,” Sampsell-Jones wrote in an email. He noted that Cahill had discretion to sentence Chauvin to up to 30 years, unless a rare exception to a rule restricting his discretion to twice the recommended sentence applied. “That seems unlikely,” he said.
Moran, Petry and Colbert all paid notice to Noor’s appeal, but said that it’s no longer especially relevant. The state is working to overturn a longstanding Supreme Court precedent with the Noor case by arguing that third-degree murder should be applicable even when a dangerous, deadly act endangered only the murdered person. A reversal of the Minnesota Court of Appeals’ decision in the state’s favor would likely vacate Chauvin’s third-degree count, but wouldn’t impact his sentence.
“It’s really almost irrelevant now,” Moran said. “Even if he got that conviction overturned, it would do him no good.”
As to Chauvin’s own appeal, to which he has an automatic right after sentencing, all four experts identified a few potential issues, but none gave them much credence.
“They’re all kind of related to the atmosphere,” Colbert said. “The decision not to sequester the jury, the decision not to move the trial, and everything regarding the courthouse being under siege….. I’m not exactly sure how they’re going to articulate it, but it’s certainly something they’re going to talk about.”
Those issues were definitely grounds for appeal, he said, but Cahill’s decisions would likely stand. “I think that it’s going to be hard to reverse, because usually they give so much discretion to the trial court,” Colbert said. “All these decisions are hard.”
Moran also pointed to those as potential grounds, but agreed that they were unlikely to get far. “The reality is, there’s actually no evidence that anyone was prejudiced,” she said. “[Defense attorney Eric] Nelson had additional strikes that he could have used when jury selection ended…. That doesn’t bode well for his attempt to say he should have had a change of venue.”
She added that Nelson had also objected to some of Cahill’s jury instructions, which could come up on appeal. Petry also called attention to Nelson’s eleventh-hour accusations of prosecutorial misconduct, raised in response to prosecutor Jerry Blackwell referring to defense narratives as “stories,” or on one occasion “a Halloween story.”
“I don’t think it would be so far afield that it would be grounds to overturn the conviction,” Petry said. “I don’t know that it rises to that.” He pointed to Cahill’s own assertion that a curative instruction he’d given jurors would likely be enough.
Both Moran and Petry said that the defense could raise two particular potentially prejudicial events on appeal, though Moran said she didn’t think it would make much difference. The first was the city of Minneapolis’ announcement that it had made a record-breaking $27 million settlement with Floyd’s family. The second was an appearance by California Congresswoman Maxine Waters at a nearby protest, where she encouraged demonstrators to stay in the street and “get more confrontational” should Chauvin be acquitted.
“It wasn’t hard to tell that [Cahill] was not happy about it, versus other things that he kind of dismissed out of hand,” Petry said of Waters’ comments.
Moran, however, said she didn’t think those arguments would get far. “It got a lot of attention, but the reality is the only way that that would have caused any kind of issue on appeal is if one of the jurors were to come forward and say ‘we heard the statement, and it had an influence on our decision,’” she said.
Colbert, Moran and Petry agreed that things also look a lot worse for the other former officers charged in George Floyd’s death – Tou Thao, Thomas Lane and J. Alexander Kueng – on Wednesday than they did on Monday.
“I think that things just got a lot more serious for them, considering that he was convicted,” Petry said. He cited his own work as a defense attorney, during which he sometimes defended police. “In terms of whether or not we’ll wind up with another trial for all three of them, I don’t know. I can tell you, if I was representing the two younger guys, I would be trying to figure out some way that I could work out a deal.”
He speculated that should they go to trial, they may be able to argue that they expressed concern about Floyd’s well-being but that their efforts were rebuffed. “The challenge there, though, is that means these guys would have to testify, because– well, it’s not the only way that it comes out, but it’s the best way that it comes out,” Petry said. The officers’ Fifth Amendment rights allow them to decline to testify, he said, but making an argument about their states of mind without actually entering their testimony into the record would be difficult.
To many who protested, however, Chauvin’s case was not as much about the fate of the men themselves as about the fate of policing and police accountability in Minneapolis and around the country.
A new development in that field came up Wednesday when the Department of Justice announced a federal civil rights investigation into the Minneapolis Police Department. “Worthwhile things sometimes happen during the course of those investigations,” Moran said. “I’m sure that there’s a lot that they could find, there’s a lot to critique about the MPD.”
Beyond that, each expert said that the case was obviously impactful, but the exact nature of that impact remains to be seen.
Colbert said it was part of a broader sea change in prosecutors’ willingness to go after rogue cops. “I’ve been practicing for 30-plus years, and police have killed hundreds of people in the time that I’ve been practicing. And they’ve only started charging police in the last five years,” he said. “The law hasn’t changed. It’s the culture that’s changed.”
Whether more prosecutions will lead to more convictions, he said, remains to be seen: “We’ve got quite a small sample size of what jurors are willing to do.”
Moran agreed. “It does mark sort of a turning point in this long history of being unwilling to hold police officers accountable,” she said. “I think that what happened yesterday was appropriate accountability, or you could call it justice, but…. We have much bigger problems with policing than one criminal case can solve.”
“The fact that someone who committed a pretty obvious murder on video in front of the world gets convicted, it’s important, it’s necessary, but it doesn’t necessarily speak to how we move forward from here,” she added.
Petry agreed: ”This old pass card that police can do anything, and nothing will happen to them — well, that pass card has been revoked.”
He also waxed philosophical, drawing a line between what he thought would happen and what he hoped would. “My hope is that this conviction does serve as a turning point,” Petry said. “And there’s another thing that I hope really comes out of this, and we’ll see if this occurs — but if you watched the testimony of Dr. [Martin] Tobin, that testimony could be a masterclass for police departments across the country for the dangers of using the prone position.”
As someone who had also defended and built relationships with police officers, he said, he also hoped for a change in the culture of policing, locally and nationally. He pointed to a longstanding issue at the MPD of longtime union leader Bob Kroll dictating practice in opposition to the policy made by a series of shorter-lived police chiefs. “I’m hopeful that this time around might be a little bit different, with Kroll stepping aside and with Rondo being the chief,” he said, using a local nickname for MPD Chief Medaria Arradondo.
He didn’t put much credence in discussions of defunding or disbanding the department, though: “We need the police. We just need good police, and we need a culture inside the organization that allows good police to be good police, and to hold police accountable when they start to go off the rails.”