This is my first time writing about the Floyd/Chauvin case since May, when I wrote that the county’s decision to charge third-degree murder, (not second-degree murder) made legal sense. Joke was on me, though: the state soon took over the case and charged second-degree murder on the legal theory that Chauvin was committing intentional felony assault against George Floyd which (perhaps unintentionally) caused Floyd’s death. So I’m demonstrably not an expert here, and I only trust myself to understand the jury instructions because they are specifically addressed to schmos like me. Feel free to jump into the comments with comments or clarifications… assuming the comments show up today. (I’ve been having technical problems with them lately.)

Each element of each crime must be proved “beyond a reasonable doubt.” This means “such proof as ordinarily prudent men and women would act upon in their most important affairs. Reasonable doubt is doubt based upon reason and common sense. It does not mean fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.”

Perhaps a good example: I had proof beyond a reasonable doubt when I got married that my wife was a good person. When I refinanced my mortgage, I proved beyond a reasonable doubt that the refinance company was not a scam and that I would be saving money. When I bought my house initially, I proved beyond a reasonable doubt (through inspections, etc.) that the house was not a lemon. (I did not do the same for my car, oddly.) None of these are absolute certainties. People throughout history have been fooled even after doing their due diligence, and I’m not special. But I was confident enough in my conclusions to stake a very great deal on them—in my wife’s case, I literally staked the rest of my life on it.

Manslaughter, 2nd Degree: It must be proved beyond a reasonable doubt:

1. That George Floyd died on May 25, 2020.

2. That Derek Chauvin’s actions were a “substantial causal factor” in Floyd’s death.

(NOTE: For all these charges, Chauvin’s use of force does not have to be the sole cause of Floyd’s death. If Floyd’s drug use and Chauvin’s use of force both contributed to Floyd’s death, then this criterion is met. This apparently doesn’t need to be but-for causation, either. If we imagine a counterfactual world where Floyd was never arrested, and we conclude that there’s a strong possibility Floyd would have died anyway just from the Fentanyl… Chauvin’s restraint still contributed to Floyd’s death if that restraint ended up being part of the reason Floyd’s body shut down in the actual non-counterfactual world. I think Ben Shapiro, among others, greatly overestimates how strong a defense the drug use is… although I am grateful to right-wing media for reminding us that this is not an open-and-shut guilty case, because it is not.)

3. That Chauvin’s actions were culpably negligent; that he may or may not have intended to harm Floyd, but that an ordinary and reasonably prudent person would recognize a strong probability of causing death or great bodily harm in Chauvin’s actions.

4. That Chauvin’s actions were not an exercise of objectively reasonable force in the line of duty in effecting a lawful arrest or preventing an escape, given all information available to Chauvin at the time of his actions (both at the start of his actions and toward the end, after Floyd had stopped breathing and lost a pulse).

Murder, 3rd Degree: It must be proved beyond a reasonable doubt:

1. That George Floyd died on May 25, 2020.

2. That Derek Chauvin’s actions were a “substantial causal factor” in Floyd’s death.

3. That Derek Chauvin’s knew that his actions were highly likely to cause death (not great bodily harm — death)

4. That Derek Chauvin acted that way not out of mere misjudgment, but out of reckless disregard for human life.

5. That Chauvin’s actions were not an exercise of objectively reasonable force in the line of duty.

(The textbook case of 3rd-degree murder is something like intentionally driving a truck into a crowd because they’re in the crosswalk on a red light—not intending to kill anyone but not caring if you do. I disagree with Andrew C. McCarthy that this charge can easily be dismissed in the Chauvin case, although I think his analysis is well worth reading.)

EDIT 10:03 PM: there is an ongoing legal debate in Minnesota about whether the “reckless disregard for human life” criterion for third-degree murder can include reckless disregard for the life of a single target, or if this statute refers only to reckless disregard for the lives of random bystanders. If the former, then third-degree murder applies to this case; it not, then Chauvin is innocent of third-degree murder. Judge Cahill initially ruled that the “reckless disregard” criterion only refers to the lives of bystanders, so he struck the charge from the Chauvin trial. An appeals court disagreed and forced him to reinstate it, and the jury instructions reflect the appeals court’s understanding of the murder statute. Litigation is ongoing in a different case, whose result will determine whether Chauvin’s conviction on this count will stand. For what little it’s worth, I think the appeals court has the more convincing interpretation of the statute, which you can read for yourself here.

Murder, 2nd Degree: It must be proved beyond a reasonable doubt:

1. That George Floyd died on May 25, 2020.

2. That Derek Chauvin’s actions were a “substantial causal factor” in Floyd’s death.

3. That Derek Chauvin, by those actions, intended to inflict bodily harm on George Floyd.

(NOTE: the intent does not have to be “great bodily harm” or “substantial bodily harm.” Any intent to inflict harm suffices. The jury instructions spend a bunch of space breaking down the difference between “bodily harm,” “substantial bodily harm,” and, the worst category, “great bodily harm.”)

4. That Derek Chauvin did inflict substantial bodily harm on George Floyd, causing Floyd at least a temporary but substantial impairment of his bodily functions.

5. That Chauvin’s intent to inflict bodily harm exceeded the limits of objectively reasonable force in the line of duty. (In other words, that Chauvin wanted George Floyd roughed up beyond what was necessary for the arrest.)

(This would meet the definition of second-degree murder, because the third, fourth, and fifth element add up to felony assault. Chauvin would have unintentionally killed Floyd in the course of intentionally committing a violent felony.)

I am not sufficiently familiar with the evidence to offer any strong opinions on the outcome. I have some inclinations, some guesses, but I didn’t watch the trial. What I do know is that I trust the jury.

If the jury doesn’t go the way I’m leaning, it’s almost certainly not because they’re racists. It’s almost certainly not because they’re cowering from the mob. It’s almost certainly because they just spent weeks listening to detailed evidence. They became the world-leading impartial experts on the Chauvin situation. No one has learned the case better; no one has been more carefully protected from partisan spin for one side or the other. Whatever they decide, it’s a more grounded conclusion than the one I reached on very cursory examination. Even if you watched every minute of the trial, they still know the case better than you, and they have been insulated from things that have inevitably biased you.

There’s a lot—a LOT—about our justice system that is completely, possibly irredeemably broken. The grand jury system hasn’t worked since the ’50s. Prosecutors are out of control. Criminal defense is a joke for most of the people who need it. The law exists for people who have some money, is more sort of an aspiration for people who don’t, and is more sort of a joke to people who have lots of money. (Peter Thiel’s quote haunts me.) Plea bargaining is done unfairly. The constitutional right to a “speedy” trial has been grossly betrayed almost everywhere. I’d come up with more, but, seriously, we can all just read Popehat’s twitter feed for the horror stories.

But, for all that, I really do have faith in the jury system at the core of it all. Not that they are perfect. They are people, and people, by and large, are venal and incompetent. (I include myself here.) Original sin did a real number on us. But I deeply believe in the ability of twelve ordinary, free citizens to look at the evidence impartially, insulated from the extra information we sometimes see, and draw at least a very reasonable conclusion, at least a very great majority of the time.

Juries are unpredictable, yes, but I think partly because juries only get asked the really hard questions. (Most of the easy cases are settled by plea bargain long before this stage.) They and they alone get to consider the situation from all angles without being shaped by outside commentary and partisan polarization. They can review the evidence and the transcripts as needed, and, yeah, it’s a ton of information to process, but who better to process it than somebody with an outside perspective?

Maybe I’m putting too much faith in them; I’ve never served on a jury, so have never seen the sausage get made up close. But I really have a lot of faith that the Common Man, working according to a rule of unanimity, is the least bad system a fallen species can come up with. (I mean, wow, unanimity, what a rule! Congress can take us into world war on a mere majority vote! Cue Aaron Jay Kernis fanfare!)

I don’t know what verdict they will or should reach. I could believe anything from conviction on all counts to acquittal on all counts. (Although, tipping my hand a bit, I can’t easily see how they could acquit on manslaughter.) But, whatever their verdict is, I really believe it will be the right one.

UPDATE 4:04 PM:

With mere minutes until the verdict is announced, it seems worth adding:

No matter what the verdict is, at least one group of undeserving jerks is going to feel vindicated by it, and they are going to be obnoxious about it online. If the verdict is mixed, we could easily have extremist idiots on both sides being obnoxious online. Whatever the result, there will definitely be reasons to be crabby about the verdict’s secondary effects. I’m not looking forward to that part.

Don’t let all that distract you from the verdict’s primary effect: doing justice to Mr. Chauvin (and to Mr. George Floyd). Chauvin is the one on trial, not your online opponents, not our society at large.

UPDATE 5:07 PM:

Guilty on all charges. I support the jury’s prudent, informed, and (above all) unanimous judgment.

My social media feeds immediately erupted with anger that the murder charge is third-degree rather than first-degree. There is a perception that Chauvin is facing a lesser charge than a Black person in his position would receive. Given the 2017 acquittal of Philando Castile’s killer, this perception is not baseless.

However, in this case, it is misguided.

I will focus on the murder charge, since that seems to be what is causing the anger. I’m seeing less discussion of the manslaughter charge.

Minnesota’s murder statutes are on the State Revisor’s website, for first-, second-, and third-degree murder. The Revisor is offline right now, no doubt due to everyone in the country trying to log in at the same time, so here is the Wayback Machine archive for first-, second-, and third-degree murder.

Now let’s walk through those links very briefly, without the legalese.

To be charged with first-degree murder in Minnesota (sentence: up to life), it’s not enough to have just killed somebody. The perpetrator must also be proved guilty of one of committing one of the following crimes during the killing:

• Premeditation
• Rape
• Burglary, robbery, kidnapping, arson, witness-tampering, jailbreak, or certain kinds of drug sales
• Killing a law enforcement official
• Terrorism
• Child abuse, if a “past pattern” of abuse against the victim exists
• Domestic abuse, if a “past pattern” of abuse against the victim exists

While you can say many things about Mr. Chauvin, it seems clear that he was not trying rape Mr. Floyd, nor was he committing an arson, and it would be very hard to prove beyond a reasonable doubt that his killing of Mr. Floyd was premeditated. Therefore, a charge of first-degree murder is not supportable.

Second-degree murder (sentence: up to 40 years) requires one of the following:

• Specific, clear intention to kill (not simply harm) the victim.
• The perpetrator violated a restraining order
• The perpetrator was committing a drive-by shooting.
• The perpetrator was committing another violent felony not already mentioned.

Again, Mr. Chauvin doesn’t seem to be convictable under this standard. You can argue that, at some point in his long and awful knee-choke of Mr. Floyd, he made up his mind that he was going to kill Mr. Floyd, but I think that would be extremely difficult to prove beyond a reasonable doubt — and, if you charge him with second-degree murder and can’t prove your case, then he walks on the murder charge.

Third-degree murder (sentence: up to 25 years) requires one of the following:

• Selling illegal drugs that later kill someone
• An unintentional death caused by an act “eminently dangerous for others and evincing a depraved mind, without regard for human life”

Ding ding ding! I think you can probably make and prove a case in court that Chauvin’s knee-choke was “eminently dangerous,” that it was “without regard for human life,” and that it “evinced a depraved mind.” We have found the strongest crime under which Mr. Chauvin can be convicted under the laws of Minnesota.

For anyone concerned that third-degree murder is not punitive enough: it carries a sentence of up to 25 years. Derek Chauvin is, I understand, 44 years old, so any of these sentences would be fairly close to a life prison term. As someone who personally considers our prison system fairly brutal and our current sentencing rules considerably too harsh, I’m not inclined to see 25 years as too light a sentence.

Now that the government of Hennepin County is officially charging it as murder, we can refer to Mr. Floyd’s murder as “murder” without qualification or complication, at least until the court case is finished.

Many people are calling for the other three officers present at the scene to be charged with murder as well. I don’t see how that could happen, and, after walking through these statutes with me, I’m sure you see the same problem. The three officers who stood by and let this happen do not appear to have committed murder under Minnesota state law. But there are many, many other crimes in the lawbook, and one of them may fit the situation. Hennepin County Attorney Mike Freeman seems to think so, as he has stated that he anticipates charges in their case as well.