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.

Hollywood agrees. For example, in Star Trek: Deep Space Nine, there’s a really good scene where Lieutenant Dax, who is considering killing someone, asks Major Kira about what it’s like. It runs like this:

DAX: How many people did you kill?
KIRA: What?
DAX: While you were in the underground.
KIRA: Too many.
DAX: Were they all faceless Cardassians or did you know who you were killing?
KIRA: Why are we talking about this?
DAX: If it bothers you, we can stop.
KIRA: It bothers me.
DAX: I’m sorry.
KIRA: Why, are you thinking about killing somebody?
DAX: Me?
(Kira realizes)
[…] 
KIRA: Jadzia. Your questions about my experience with killing. If you’re wondering what it’s like. When you take someone’s life, you lose a part of your own as well.

You’ve probably never seen this one scene from a particularly obscure episode of Star Trek, but you’ve probably seen a hundred others like it. This exchange is everywhere in our media, from MacGyver‘s speeches to Harry Potter’s Horcruxes. There’s a deep, deep belief in our culture that most of us are incapable of committing murder, because we would just feel too guilty about it. Murder is supposed to feel different from other crimes. We are therefore shocked when we see unrepentant murderers in courtrooms, and we have never, as a culture, been able to come to grips with the way murderous governments can rise to power and enlist their own citizens in committing atrocities. “How could anyone do such a thing?!” we ask.

But, actually (with rare exceptions, like Major Kira) there’s nothing very special about murder, from the murderer’s point of view. It’s the same old story as any other act of cruelty: I want something, I have to do something wrong to get it, and so I’m going to convince myself it’s not really wrong. Human beings are incredible rationalizers. Murder isn’t different; it’s just a little bigger.

Murder is easy.

With all this in mind, I call your attention to new footage released today by the anti-abortion investigative outfit Center for Medical Progress. The footage is of an interview between CMP investigators (undercover as fetal tissue buyers) and an abortionist named Dr. DeShawn Taylor, currently in independent practice but, until recently, medical director of Planned Parenthood Arizona.

I didn’t watch the edited “highlights reel” CMP put together. I watched the full, unedited, 27-minute conversation–so you don’t have to!–and then I wrote a transcript.

In this passage, which begins at 14min 46sec in the video below, Dr. Taylor obliquely refers to the killing of babies. I don’t mean fetuses here. I mean 100% born babies. See, every once in a while, a fetus survives an abortion, and is delivered while still showing “signs of life.” According to Arizona law, since it is unquestionably a baby at that point, doctors must take all possible measures to save the baby, including transporting the baby to the hospital.

Instead, Dr. Taylor talks about doing “maneuvers after the fact to try to cause demise,” and how one gets away with that. She strongly implies (though never outright admits), that she has done this. If her conscience is troubled in any way about it, she makes no sign of it.

Again, these are born babies, which even the Supreme Court agrees have a right to live.

Murder is easy.

As a note before you watch/read, both people in the conversation refer several times to “didge” or “didging.” This refers to the use of digoxin poisoning to kill a fetus. (Digoxin is a poison fatal to all humans.) Digoxin is often injected prior to the start of a late-term abortion to ensure that the child dies in the womb. It is a more humane method of killing than dismemberment, and also (as we see here) can help avoid failed abortions and/or violating murder laws.

Here is my transcript of the relevant portion:

Center for Medical Progress [CMP]: Do you didge?
Dr. DeShawn Taylor [DT]: Yeah.
CMP: Starting when?
DT: Ah, 20 weeks.
CMP: Starting at 20 weeks.
DT: Mm-hm.
CMP: Okay.
DT: Yeah.
CMP: ‘cause that’s the other thing, ‘cause, y’know, didge kinda rules out–
CMP2: It ruins the integrity of the specimen.
DT: Oh, yeah.
CMP: And it kills the stem cells. (chuckles)
DT: I mean, so the thing is, it’s really–it’s really tricky, ‘cause in Arizona, if the fetus is—if it comes out with any signs of life, we’re supposed to transport it to the hospital.
CMP: Uh-huh. At any gestational age?
DT: Annnny gestational age. Yeah, yeah.
CMP: Mm-hm. Is there any standard procedure for verifying signs of life?
DT: Well, the thing is…
CMP: That doesn’t go on a chart!
DT: I mean, the key is, you need to pay attention to who was in the room, right?  And, like, you know, because the thing is the law states that you’re not supposed to do any maneuvers after the fact to try to cause demise. So, so, it’s really tricky, um…
CMP2: Yeah, sounds like it’s real hard to navigate that bad boy.
DT: Yeah, it’s really tricky so we do— most of the time we do didge, and it usually works. And then we don’t have to worry about that, because Arizona state law says if any, if there’s signs of life, then we’re supposed to transport them to the hospital.
CMP: Yeah.
DT: (chuckles) Yeah, it’s a mess. It’s a mess.

Now, to be clear, you can’t prosecute this. It’s not, legally, an admission of murder… even though it really obviously is an admission of murder. She killed some babies, but she’s wink-winking about it, so Arizona law can’t reach her. It’s like when O.J. Simpson authored a book called If I Did It. Yeah, he did it, but we can’t prove it in court, even as he winks at us about it. Dr. Taylor will (like O.J.) get away with murder, because that’s how our justice system works–and it’s good that our system requires hard proof for a murder conviction.

Also, I’d be remiss not to mention that CMP has faced both legal and moral problems of its own in the way it obtained these videos, which relied on deception and recording conversations without consent. Further, many have alleged that CMP’s edited videos remove vital context. That is why I watched the raw, unedited footage. If you do keep watching to make sure I didn’t miss any context (feel free to add anything relevant you think I missed!), you’ll be treated–a couple minutes after this exchange–to a rather horrifying discussion of how much easier it is to complete an abortion when the fetus is already dead… and thus, apparently, not able to fight for her life.

But what context in the world could change this?

“I mean, the key is, you need to pay attention to who was in the room, right?  And, like, you know, because the thing is the law states that you’re not supposed to do any maneuvers after the fact to try to cause demise.”

“You need to pay attention to who was in the room, right?… the law states that you’re not supposed to do any maneuvers… to try to cause demise”

“You need to pay attention to who was in the room, right?”

Jesus Christ.

As Dr. Taylor shows, it’s easy to commit murder. It’s even easier to rationalize your terrible deeds. Perhaps easiest of all is surrounding yourself with like-minded people who agree with you, many of whom do the same awful things.

This is the same defense mechanism that allows Wall Street bankers to defraud the nation without shame, the same trick sex-abusing priests use to assure themselves that they haven’t done anything wrong–that they’ve actually done something good! It’s natural, and it works. Murder is easy.

There’s a lesson here for all of us: don’t count on your feelings preventing you from becoming a bad person, don’t trust them to alert you once you have, and especially don’t tell yourself that it can’t have been so bad because you feel fine about it. Most bad people feel fine.

(Credit to the indispensable Chrissie’s Transcripts Site for the DS9 excerpt.)