What took them so long?

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?

Rehtaeh Parsons: be outraged – but careful

A day after The Chronicle Herald‘s atom bomb of a story about Parsons, I’m still haunted by what happened to that poor girl – especially that her fellow classmates not only circulated photos of her alleged rape, they tormented her personally.

The story has now spread around the world, and there is pressure on the provincial government to commence in inquiry into the case, particularly the RCMP’s seemingly inexplicable decision not to lay charges against the animals who allegedly raped Rehtaeh Parsons and then circulated photos of their own brutality.

I agree wholeheartedly.  The “system” – our schools, our police, our social workers – is supposed to protect young people.  And in this case, it failed miserably.  But here’s the thing: once an inquiry is called, it must be allowed to do its job.

Lawyer and Liberal Party operative Warren Kinsella undeniably speaks for many people in this “open letter” to the controversial online hackers’ collective, “Anonymous”:

Rehtaeh was thereafter harassed and abused and bullied by students at her school.  The torment got bad enough that Rehtaeh had to move to another town.  Months later, she returned, but the bullying and abuse never stopped.  She was sent messages calling her a “slut.”

You may ask what happened to the four males who raped her, and who circulated the photograph of Rehtaeh being raped – which, incidentally, meets the definition in Canadian law of child pornography.

Nothing.  Nothing happened to them.

The RCMP, who allegedly investigated, are led in Nova Scotia by Alphonse MacNeil.  He calls himself a “consensus builder” and has two daughters.  I’m sure you could find his email address if you needed to.

The Nova Scotia government, which agreed with – and energetically defended – the RCMP’s decision to do nothing about the rape or the child pornography, is led by NDP leader Darrell Dexter.  Interestingly, he represents Cole Harbour in the provincial legislature.  His email isn’t readily available, either, but I know you’ll find that, too.

His Attorney-General is Ross Landry.  Yesterday, Landry refused to reopen the case; by the afternoon, he had seemingly changed his tune.  His constituency office email is here.  I don’t know what his email is.

The names of the little bastards who did this, and who are still alive and walk free in Cole Harbour, are unknown to most of us.  But, as in the Steubenville, Ohio case, I am certain anyone who is sufficiently motivated can find out who the little bastards are, and name and shame them.

I’m unclear how to appeal to you, Anonymous.  But if there was ever a case that cried out for your attention – and if there were ever men like MacNeil, Dexter and Landry who deserved to be fired, or worse, for their pathetic responses – I don’t know what it is.  What happened to Rehtaeh and her family is so horrible, so evil, I am ashamed that it happened in my country.

In closing, I should note that Rehtaeh’s heart was sent to Toronto yesterday, to be transplanted into another person.  I don’t know why I feel a need to mention that to you, but I do.

Maybe because, in some way, it feels like Rehtaeh is still watching now, to see who will do something, and who will do nothing.

My own feelings about this kind of online activism are decidedly mixed.  The Steubenville, Ohio case – the first one that came to mind when I read about Rehtaeh’s story yesterday – may never have been resolved at all had it not been for the work of Anonymous.

But I also know that online activism – especially when particularly reprehnsible criminal allegations come into play – can go very, very wrong.  When George Zimmerman shot unarmed teenager Trayvon Martin while patrolling a gated community in Florida, Zimmerman’s address and contact information quickly circulated online.

Just one problem: it wasn’t the same George Zimmerman:

An elderly Florida couple have been forced to move into a hotel after their home address was wrongly tweeted as belonging to the man who shot teen Trayvon Martin.

The tweets were traced back to a man in California and the address was also reportedly retweeted by director Spike Lee to his almost 250,000 followers.

The couple, aged 70 and 72, have been harassed with hate mail, been hassled by media and had scared neighbors questioning them since the tweet, their son Chip Humble told the Orlando Sentinel.

Fearful for their safety, and hoping to escape the spotlight, the couple have temporarily moved to a hotel.

The confusion seems to stem from the fact the woman’s son is named William George Zimmerman and he lived briefly at the address in 1995.

When William Zimmerman pleaded with the man who tweeted the address, the man responded, “Black power all day. No justice, no peace” along with an obscenity.

One of the most devastating books about the legal system I’ve ever read is Dorothy Rabinowitz’s No Crueler Tyrannies, about the infamous Fells Acres abuse cases in Massachusetts.  The Amirault family, who ran a child care centre, were caught up in the “Satanic Ritual Abuse” hysteria – remember that? – of the mid-to-late 1980s, and falsely accused of molesting young children in the most shocking ways imaginable.

The Amiraults were innocent, but thanks to overzealous prosecutors, exploitative media coverage and opportunistic politicians, their lives were destroyed.  If the internet had been around then, do you believe they wouldn’t have been targeted online as well?

I went to high school, I know how freaking horrible teenagers can be, so I’m inclined to believe Rehtaeh Parsons’s grieving mother.  However, we are only hearing her story – we have not heard from the police, her teachers or school officials, or her classmates.

That’s why I want an inquiry.  But emotional cases like this can lead to bad information, bad law, and innocent people getting caught in the net.  I work on criminal cases myself – albeit on the defense side – and I know how what gets reported in the media can bear only the slightest resemblance to what actually happened.

Even before Kinsella posted his open letter to Anonymous, they were already on their way to tracking down, naming and shaming the people who did this to that poor girl.  If they find them – and if they actually did it, assuming they get the right guys in the first place – well, I will shed no tears.

Justice must be done.  But our system protects criminal defendants, and places the burden of proof squarely on the prosecution, for very good reasons.

Postscript: according to CTV, Parsons’s family says donations in her memory “can be made to the East Coast German Shepherd Rescue, Metro SPCA, and the Laing House – a Halifax-based peer support organization for youth with mental illness.”