A killing in Minnesota: the murder of George Floyd

BY:

Caterina Conti
Media Operations

31 May 2020 (Washington, DC) – Boy, you’d think a country that can equip every cop like a soldier could equip every doctor like a doctor when fighting a pandemic. Or maybe a teacher like a teacher, and a school like a functioning school.

But, hey: when you produce way more weapons and war gear than medical supplies it’s almost like we love taking lives over saving them.

The basic assumption here, of course, is America is a functioning modern society, not a death cult driven by violence, wealth, and power. I wish that assumption wasn’t wrong.

And I realize that none of this concerns the e-discovery industry but I still wanted to say something. We are fortunate in the e-discovery industry because we do not need to deal with real life. Disparities in wealth and income, the collapse of the American criminal justice system, the  collapse of the U.S. health care system, the entrenched kakistocracy, etc. are of no concern of ours. Because we practice process, not law … we are mere data jockeys on corporate transactional matters. Our task is to work for (or against, depending on the client) Corporate America/Corporate EMEA/Corporate Asia – its commercial interests/transactions be it transactional or investigative. In the U.S., it is an industry divorced from the reality of what is happening in American law and American politics. We talk about “innovation” and “disruption” but merely as elements to save money for us (and our corporate clients). As told to us by one much-esteemed magistrate judge who laid down some of the definitive rules in e-discovery: “Rule #1 of the rules of Federal civil procedure is to make the process speedy and inexpensive”. Not for delivering justice. 

And he’s correct. It’s all about the money. Because politics and “real life” are bad for business in our industry. Yes, we lay on a patina of “we-do-law” at many legal technology events with the traditional circle jerk of e-discovery judges but what they say means nothing in the practice of real law in our society. But at least we have the sense to recognise we are bit players, powerless to change anything.

On May 25, George Floyd was killed in Minneapolis, begging for his life with a police officer’s knee on his neck. On March 13, EMT Breonna Taylor was shot to death by police officers who burst into the wrong apartment. In February, jogger Ahmaud Arbery was killed by two vigilantes.

For many black Americans, this moment feels like a crisis within a crisis within a crisis. It’s not just George Floyd’s killing by police. Or the deaths of Taylor and Arbery. Or the demeaning of birdwatcher Christian Cooper and journalist Omar Jimenez. Or the coronavirus pandemic’s disproportionate harm to African Americans. It’s that it’s all happening at once.

We are living in two Americas, one in which the people who are already left behind are now facing even greater (and sometimes fatal) blows to daily life, and there seems to be growing consensus that we can’t ignore that reality. As Brittany Packnett Cunningham, co-founder of Campaign Zero aid:

Everybody’s world got made smaller by coronavirus. But when you’re black, your whole world got a lot smaller.

From voting to demonstrating, there’s a constant calculation over whether it’s more important to protect your health or express your civic voice – and whether it’s possible to do both at once. If you’re living in multi-family or multi-generational housing, you’re at greater risk for infection. But if you leave the house, you open yourself up to new worlds of risk, including from the law enforcement that are supposed to protect you.

Early counts in New York showed the overwhelming majority of people police arrested for violating social distancing rules were black. If you’re a person of color wearing a mask, you may be viewed differently by store clerks or police than a white person. But if you don’t wear a mask, you may jeopardize your own health as well as the health of others – or risk a penalty for violating social distancing rules. Even going for a jog has different considerations. Black Americans are twice as likely to be shot and killed by police as white Americans, per a Washington Post database of police-involved shootings.

COVID-19 presents another disproportionately deadly threat to black Americans. Roughly 13,000 African Americans would still be alive today if they had died of coronavirus at the same rate as white Americans, per data compiled by the American Public Media (APM) Research Lab.

Guess what city that is in the above photo.  Not Minneapolis. Not New York or L.A. or Chicago or Philly, although demonstrators set massive fires in all those places yesterday. It’s Washington, D.C. — near Lafayette Park, within sight of the White House.

The problem with the rioters’ destruction puts the spotlight on themselves, not the crime that sparked the protests. But I am not unmindful of Martin Luther King, Jr. :

Neither do I forget the outrage when Janet Napolitano released in 2009 her comprehensive report (with reams of data) saying Federal law enforcement agencies discovered that white supremacists were infiltrating local law enforcement. We might want to give that report another look. It’s not “a few bad apples” anymore. It’s “there’s only a few good apples left”.

But I wanted to understand what I thought were the bizarre set of charges against the ex-police officer, Derek Chauvin, who killed George Floyd. So I turned to Ira Robbins ho is a professor at American University’s College of Law, and a recognised expert on criminal law and procedure, the death penalty, habeas corpus, prisoners’ rights, etc. He has been posting on Facebook over the last few days and he has kindly provided the following summary:

* * * * * * * * *

I have been describing the different degrees of murder under Minnesota law and elaborated on the category of third-degree murder, which is a rarity among the states, and I have received many good questions and comments. Let me elaborate and focus on the key questions:

– Is third-degree murder the appropriate charge? It’s hard to know what the “appropriate” charge is at this point, as a full investigation will take some time. The important thing is that the prosecutors needed to charge something – at the very least, to alleviate the understandable anger of members of the community – and it was a good idea for that charge to have the word “murder” in it. The degree of murder in the charge doesn’t really matter for now. Chauvin was arrested, he is in custody, and state and federal investigations are under way.

– Why did he get only third-degree murder? Chauvin hasn’t “gotten” anything at this point (other than arrested and fired from his job). The charges can always be changed as the investigation unfolds. Depending on the evidence, the charge could be increased to second-degree murder (intent to kill but without premeditation and deliberation, or intent to cause grievous bodily harm) or even first-degree murder (intent to kill with premeditation and deliberation, as well as to killings of children, police officers, judges, witnesses, killing a spouse after continued domestic abuse, and some felony murders). As I said – and will continue to say – wait for the evidence; let the investigation run its course. Among other things, it will be important to learn about the prior relationship between Chauvin and Mr. Floyd, as the media has reported that they both worked security at the same club. What we appear to know is that Chauvin killed Mr. Floyd (although undoubtedly the defense will assert that there were other factors at play). What we do not yet know is the mental element of the crime (mens rea). That element will determine the appropriate level of conviction.

– Chauvin has been charged not only with third-degree murder, but also second-degree manslaughter. What’s that all about? Can he be convicted of both? The Minnesota manslaughter statute provides, in pertinent part: “A person who causes the death of another by any of the following means is guilty of manslaughter in the second degree . . . : (1) by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another . . . .” This crime is roughly the same thing as involuntary manslaughter in other jurisdictions. Chauvin could not be convicted of more than one type of homicide crime. The jury will have a choice; they could opt for the higher crime or lower crime, but they could not convict for both. (Of course, a jury could also vote to acquit or it might be divided. I will save that topic for another time.)

– What punishment could Chauvin receive? The maximum punishments for the relevant homicide crimes in Minnesota are:

• First-degree murder: Mandatory life imprisonment (Minnesota is not a death-penalty state);
• Second-degree murder: 40 years;
• Third-degree murder: 25 years;
• Second-degree manslaughter: 10 years.

Note that these are the *maximum* punishments allowable under Minnesota law. A judge has discretion to impose a lesser punishment (except when the punishment is mandatory, as with first-degree murder). But that discretion is not unfettered. Minnesota (like many states and the federal government) has a sentencing-guideline scheme, whose purpose is to “establish rational and consistent sentencing.”

– What about the other three officers? Why haven’t they been arrested? The simple answer is that they can and may well be. But for what? Some people are suggesting felony murder, but for reasons I won’t get into now (because this is already a long post), I think that is unlikely. A better charge may well be some level of accomplice liability or a violation of their duty to intervene. Why didn’t they stop Chauvin’s use of unreasonable force? Although members of the public generally do not have a duty to come to the aid of others in most situations, there is a higher duty for members of law enforcement. 

Let’s see what facts develop during the investigation. The process has barely begun. We have a lot more to learn.

* * * * * * * * *

America suffers institutional racism (also known as systemic racism) and will always suffer such racism. It is expressed in the practice of every social and political institutions. It is reflected in disparities regarding wealth, income, criminal justice, employment, housing, health care, political power and education, among other factors. It originates in the operation of established and respected forces in the society, and thus receives far less public condemnation than individual racism.

When white terrorists bomb a black church and kill five black children, that is an act of individual racism, widely deplored by most segments of the society. But when in that same city – Birmingham, Alabama – five hundred black babies die each year because of the lack of proper food, shelter and medical facilities, and thousands more are destroyed and maimed physically, emotionally and intellectually because of conditions of poverty and discrimination in the black community, that is a function of institutional racism.

When a black family moves into a home in a white neighborhood and is stoned, burned or routed out, they are victims of an overt act of individual racism which most people will condemn. But it is institutional racism that keeps black people locked in dilapidated slum tenements, subject to the daily prey of exploitative slumlords, merchants, loan sharks and discriminatory real estate agents. The society either pretends it does not know of this latter situation, or is in fact incapable of doing anything meaningful about it.

And there is more to be said about the burgeoning genre of videos capturing the deaths of black Americans, and the complex combination of revulsion and compulsion that accompanies their viewing. They are the macabre documentary of current events, but the question remains about whether they do more to humanize or to objectify the unwilling figures at the center of their narratives. Death is too intimate a phenomenon to not be distorted by a mass audience. Very few of us knew who George Floyd was, what he cared about, how he lived his life. Today, we know him no better save for the grim way in which that life met its end.

Shit, I wish I had an answer but I have none. In the U.S., policing’s institutional racism of decades and centuries ago still matters because policing culture has not changed much. For many African Americans, law enforcement represents a legacy of reinforced inequality in the justice system and resistance to advancement – even under pressure from the civil rights movement and its legacy.

One thing I do know: this is not the way to rebuild trust after one of your brethren murdered someone:

And Trump? Oh, so predictable now. He has made known his disdain for protests that target him or his record. He tends to view them through a simple lens: as provocations that must be put down with unyielding force. Less important to Trump, it seems, are the grievances that give rise to the demonstrations in the first place. He’s described himself as a “law and order” president who admires practitioners of a certain rough justice. Yesterday, he tweeted praise for two generals from history: George Patton and Douglas MacArthur (he misspelled MacArthur). Both played a role in the government’s heavy-handed quashing of a protest in 1932 by war veterans who, in the midst of the Great Depression, wanted early payment of a bonus they were due.

Past presidents have sought to play a healing role when the nation is on edge, but Trump’s instinct is to plunge into combustible circumstances in ways that rouse his base. He encourages protests that align with his interests. Eager to see an economic revival, Trump last month egged on demonstrators who pressed Democratic governors to ease stay-at-home orders despite the coronavirus threat. “LIBERATE” Michigan, Virginia, and Minnesota, he tweeted. (Some protesters showed up in the Michigan state Capitol with guns and tactical gear).

Listening to Trump’s bizarre Tweets is to hear a man who’s already sold himself on an alternate version of reality. Having convinced himself of his version of the facts, all that remains is for him to win over the rest of the world. The only thing that will bring him down in the end will be his inability to distinguish the truth from what he wanted to be true.