The state’s highest court indirectly invalidates the prosecution’s depraved-indifference murder theory.
The state’s highest court indirectly invalidates the prosecution’s depraved-indifference murder theory.
R ecently, there was a ruling by Minnesota’s highest court that would have been big news if it had happened prior to Derek Chauvin’s trial for the killing of George Floyd — as it should have. At this point, its importance is greatly diminished, even though it will almost certainly result in the reversal and dismissal of one of the charges against the former Minneapolis cop — specifically, the third-degree “depraved indifference” murder count.
The news was easy to miss because it did not come directly in Chauvin’s case, which is now on appeal, and — more significantly — because it is unlikely to affect Chauvin’s 22-and-a-half-year sentence. Judge Peter Cahill imposed that term mainly because Chauvin was also convicted of second-degree unintentional murder (i.e., murder committed in the course of committing another crime — aggravated assault). That charge is unaffected by the state supreme court’s new ruling.
I explained even prior to Chauvin’s trial why the third-degree murder charge was flawed. “Depraved indifference” is a concept that conveys wanton disregard for human life. The textbook example is a gunman who shoots into a crowd, not targeting any person, not intending to kill any specific victim, but cruelly indifferent to the threat to human life he is willfully creating for everyone in the vicinity.
That was not the Chauvin/Floyd situation. Chauvin specifically targeted Floyd in his use of force and had a rational reason for doing so.
Chauvin’s conviction for second-degree unintentional homicide is proper because the jury rationally found that his encounter with Floyd evolved into a use of excessive force, which amounts to the crime of aggravated assault, and caused Floyd’s death. But the encounter did not amount to depraved indifference to human life, as that term of art is understood. Chauvin was targeting Floyd specifically, and no one else, in using force. Moreover, if he killed Floyd without intent but in an extremely negligent manner, that would warrant a manslaughter conviction (as the jury also found). But the law must not confound criminal negligence with depraved indifference; the latter is very different and significantly more serious (which is why the potential sentence is twice as long).
For that reason, Judge Cahill dismissed the depraved-indifference count at the pretrial stage. Nevertheless, the Chauvin/Floyd confrontation was not the only tragic police-involved killing pertinent to this issue. In another case, a police officer named Mohammed Noor recklessly killed a woman named Justine Damond. She had called the police late at night to report a possible crime. When Noor and his partner responded, she approached their squad car in the dark and knocked in what Noor took to be a threatening way on the window; he panicked and fired his gun from inside the car at the silhouette he saw, killing her.
Obviously, Noor was criminally irresponsible. He did not, however, intend to kill an innocent woman. It was gross negligence, an open-and-shut case of manslaughter. In the anti-police tenor of our times, though, city prosecutors are loath to charge a cop in such a case with mere manslaughter, even though it carries a potential ten-year sentence in Minnesota.
The state realized the proof was weak for purposes of establishing second-degree unintentional murder (Noor acted under duress in a split second, not over a course of ten minutes like Chauvin). Prosecutors worried that if presented with a stark choice between manslaughter and second-degree murder, a jury would probably convict on the former and acquit on the latter.
As a hedge against this probability, prosecutors warped the law. They added a depraved-indifference murder charge, even though it didn’t fit legally, because they figured they could rhetorically whip the jury into concluding that, for Noor, even under a perception of peril, to shoot before identifying whom or what he was shooting at was not merely reckless but depraved. The trial judge let them get away with it. With the distinction between criminal negligence and depraved indifference thus blurred, the jury predictably acquitted Noor on the second-degree murder charge but convicted him of the third-degree depraved-indifference count, as well as manslaughter.
BLM and other activists threatened more rioting if Chauvin was not convicted of a murder charge. Prosecutors worried that Chauvin’s jury, like Noor’s, could acquit on second-degree murder — especially after they heard the evidence that Floyd resisted arrest, which would have justified Chauvin in using some degree of superior force (though not necessarily the degree that he used) — and convict Chauvin only of manslaughter. So, like the Noor prosecutors, they hedged their bets, charging depraved-indifference murder even though the facts did not fit the depraved-indifference concept.
Initially, Judge Cahill correctly refused to let them do it. Yet an intermediate appellate court then upheld Noor’s depraved-indifference conviction. The Chauvin prosecutors thus pressed Cahill to reinstate the third-degree murder count. Because the appellate court is superior to Cahill’s trial court, he had no choice but to defer to its ruling even though he disagreed with it. He thus acceded to the state’s demand; that is why the depraved-indifference charge was put back in the case.
There was an effort to plead with Minnesota’s supreme court to expedite Noor’s appeal so the depraved-indifference issue could be decided definitively prior to Chauvin’s trial. But the state’s highest tribunal refused to accommodate this eminently reasonable request. The blunt fact is that the radical Left’s extralegal intimidation works — which, as Charlie Cooke demonstrated in his column Monday, is why the radicals chase a United States senator into the lady’s room . . . while the left-leaning press looks the other way or even applauds. In Chauvin’s case, no court that had the discretion to refuse to stick its neck out was willing to risk making a correct legal ruling that was likely to have the streets erupting in violence.
As a result, the Chauvin prosecutors had the considerable advantage of having a charge that should not have been in the case but that invited them to portray Chauvin not just as reckless, not just as a cop who went too far in restraining a physically formidable and resistant suspect, but as a depraved monster who lacked any regard for human life — even though Chauvin posed no threat to anyone in the crowd around Floyd.
So now, with Chauvin safely convicted nearly three months earlier, the state supreme court finally deigned to rule on Noor’s appeal. Predictably, the court threw out the depraved-indifference charge, correctly reasoning that “the mental state necessary for depraved-mind murder . . . is a generalized indifference to human life, which cannot exist when the defendant’s conduct is directed with particularity at the person who is killed.” That is to say, prosecutors had no business charging it in Noor’s case, or in Chauvin’s.
Would it have made a difference in Chauvin’s case? Only in how the prosecutors presented their evidence, but probably not in the outcome of a second-degree murder conviction. As noted above, the second-degree unintentional-murder proof was stronger in Chauvin’s case than in Noor’s.
Dismissal of the depraved-indifference charge will now be a mere formality in Chauvin’s appeal. But even if he had had to challenge that conviction without the benefit of the new Noor ruling, it would have been a second-order matter. The key issue in Chauvin’s appeal will be whether prejudicial actions and public statements by state and federal officials, including remarks by President Biden and Congresswoman Maxine Waters (D., Calif.), deprived him of a fair trial — a claim bolstered by Judge Cahill’s failure to address prejudicial publicity adequately and the jury’s rapid-fire verdict, in the reaching of which they asked not a single question despite the trial’s length and complexity.
If one assumes that Chauvin would have been convicted on second-degree murder even if the third-degree murder count had not been in the case, then the improper conviction on the latter had no bearing on his sentence. The second-degree murder count carried a possible 40-year sentence. As a practical matter, because of some quirks in state sentencing law, Chauvin was facing a sentence of up to 30 years on that charge alone. The 22.5-year term imposed was well within the guidelines.
The third-degree depraved-indifference count carried a possible sentence of 25 years; and as with the manslaughter count on which Chauvin was also convicted, it was subsumed for sentencing purposes in the more severe second-degree count. Consequently, the 22.5-year term will stand unless Chauvin can get the second-degree murder conviction reversed on appeal.
As I’ve explained before, the question of whether Chauvin was denied due process is different from whether he was guilty. I believe he was guilty of manslaughter, but I can’t say the second-degree murder conviction was irrational. The evidence was sufficient to uphold the guilty verdict; the question is whether the trial was fair. I wouldn’t hold my breath waiting for Minnesota’s higher courts to wrestle with that question in a meaningful way — not with the mob watching and waiting.