Former prosecutor Andrew McCarthy has a good piece in National Review explaining why charging
Officer Chauvin with Third Degree Murder and not a more serious charge was the right move – and why officials’ delay in arresting him was inexcusable:
Hennepin County attorney Mike Freeman announced that Chauvin is being charged with third-degree murder — sometimes called “depraved heart” or “depraved indifference” homicide. Under Minnesota law, third-degree murder occurs when a person, without intent to effect the death of a person, nevertheless causes death by an act that is “eminently dangerous to others” and “evince[es] a depraved mind, without regard for human life.”
The penalty is imprisonment for up to 25 years.
This is probably the appropriate charge. It is always dicey to make assessments when we do not know what evidence investigators have, but second-degree murder, which provides for up to 40 years’ imprisonment, must have been considered. That is a “crime of passion” type of homicide — not premeditated, but nonetheless intentional, out of an intense emotional impulse. From what we know of the incident, this appears more elongated and depraved than instantaneous and impulsive. Obviously, I am assuming first-degree murder and its potential life sentence were not on the table because there is no apparent proof of premeditation. (Minnesota does not have capital punishment.)
We don’t have “third degree murder” in Canada. It strikes me as most similar to our offence of “criminal negligence causing death,” which involves “wanton or reckless disregard for the lives or safety of other persons.”
To be sure, police necessarily get a measure of consideration that the rest of us do not. When police get involved in an altercation, it is presumptively because they are doing their duty to keep the peace, not because they are causing the confrontation. Police use force under the color of law, so, other things being equal, a police use of force enjoys a presumption of legitimacy that a similar use of force by you or me would not.
All that said, it is well known that police may not use excessive force. It is obvious, and was in real time, that Chauvin’s use of force on Floyd was excessive. And this was not a situation in which, after excessive force, everyone dusted off and went on their way. Mr. Floyd died.
Investigators did not need to be sure that they could make a third-degree murder charge stick to know that some kind of prosecutable homicide happened in the killing of George Floyd. This was not a fleeting incident, or a situation in which Floyd was resisting — he was pleading for his life. At the very least, this was a negligent homicide; more likely, it was something worse. Obviously, it was a crime. When a violent crime has clearly happened, the person who committed it should be placed under arrest, immediately.
I doubt it will be fatal to the case, but the prosecution is going to take some hits over the delay. Chauvin’s lawyers will contend that he was not arrested because investigators recognized that there was insufficient evidence; they will add that he was only charged because Minneapolis was burning and the mob had to be satisfied. I do not believe that claim will overcome the evidence of guilt. But the claim would not be available if Chauvin had been arrested promptly, as he should have been.
Floyd’s family is demanding that Chauvin be charged with first degree murder, for which premeditation and intent to kill must be proven. Another controversial and heavily scrutinized murder case – not involving police, but fraught with racial tensions – suggests that would be a very bad idea.
Public outrage about this case is understandable – read this piece by basketball icon and social activist Kareem Abdul-Jabbar to see why African-Americans in particular have had it – but it would be cruelly ironic the outrage forces prosecutors into mistakes and Chauvin is acquitted as a result.
And who would bet against that in this misbegotten year?