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New Floyd murder charge will be hard to prove
Posted on: June 4, 2020 at 11:44:32 CT
Calca STL
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https://www.nationalreview.com/2020/06/new-floyd-murder-charges-will-be-tough-to-prove-and-may-imperil-good-cops/
Most of the coverage did not note that Minnesota’s second-degree murder statute prescribes alternative theories of murder: intentional murder and felony murder. The new charges in the case reflect the latter theory. The complaints filed against all four officers concede that Floyd’s death was unintentional. Instead, they charge that Chauvin, with the other cops as accomplices, committed the felony of third-degree assault by physically restraining Floyd when he refused to cooperate in being taken into custody. Death is said to have resulted from this purportedly criminal act of assault.
Defense lawyers will certainly note that the new theory may have led to some sleight-of-hand by Ellison in drafting the charges. In the original complaint, prosecutors more forthrightly acknowledged that Floyd, while he did not threaten the cops, was uncooperative. For example, the original complaint states, “Mr. Floyd actively resisted being handcuffed”; in the amended complaint, that allegation has mysteriously vanished — we are now told simply that “Officer Lane handcuffed Mr. Floyd.”
Why the change? Because Ellison has changed the direction of the prosecution since taking it over. Originally, prosecutors were not concerned about accurately describing Floyd’s resistance, since their theory was that, no matter what Floyd may have done, the recklessly excessive manner in which he was restrained — with his ability to breathe impeded — established depraved indifference. But now, Ellison is alleging that the arrest and accompanying restraint of Floyd was felony assault from the start. To pull that off, he realized he needs to soft-pedal Floyd’s resistance. Otherwise, physical restraint by the cops may appear to have been reasonable, at least at the start; Ellison wants it to look unreasonable through and through, to the point of assault.
Competent defense lawyers will make mincemeat of this legerdemain, showing the jury how prosecutors massaged facts to make them fit their evolving theories. A case that prosecutors should win will suffer.
Most of the coverage did not note that Minnesota’s second-degree murder statute prescribes alternative theories of murder: intentional murder and felony murder. The new charges in the case reflect the latter theory. The complaints filed against all four officers concede that Floyd’s death was unintentional. Instead, they charge that Chauvin, with the other cops as accomplices, committed the felony of third-degree assault by physically restraining Floyd when he refused to cooperate in being taken into custody. Death is said to have resulted from this purportedly criminal act of assault.
Defense lawyers will certainly note that the new theory may have led to some sleight-of-hand by Ellison in drafting the charges. In the original complaint, prosecutors more forthrightly acknowledged that Floyd, while he did not threaten the cops, was uncooperative. For example, the original complaint states, “Mr. Floyd actively resisted being handcuffed”; in the amended complaint, that allegation has mysteriously vanished — we are now told simply that “Officer Lane handcuffed Mr. Floyd.”
Why the change? Because Ellison has changed the direction of the prosecution since taking it over. Originally, prosecutors were not concerned about accurately describing Floyd’s resistance, since their theory was that, no matter what Floyd may have done, the recklessly excessive manner in which he was restrained — with his ability to breathe impeded — established depraved indifference. But now, Ellison is alleging that the arrest and accompanying restraint of Floyd was felony assault from the start. To pull that off, he realized he needs to soft-pedal Floyd’s resistance. Otherwise, physical restraint by the cops may appear to have been reasonable, at least at the start; Ellison wants it to look unreasonable through and through, to the point of assault.
Competent defense lawyers will make mincemeat of this legerdemain, showing the jury how prosecutors massaged facts to make them fit their evolving theories. A case that prosecutors should win will suffer.
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New Floyd murder charge will be hard to prove - Calca STL - 6/4 11:44:32
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