Smoke but No Fire: Convicting the Innocent of Crimes that Never Happened is available now from Amazon or your local bookseller.

Don’t Forget the Prosecutors in Talking About Police Reform

Millions of Americans have now watched the stomach-turning scene over and over: George Floyd handcuffed, lying prostrate on his stomach in the asphalt street, pleading for his life, calling for his mother, gasping “I can’t breathe.” All the while, Derek Chauvin, hands casually resting in his pockets, continues to deeply press his knee into Floyd’s neck. Officers Thomas Lane and K. Alexander Keung, with the help of Officer Tou Thao, hold down an already immobilized Floyd. Floyd dies before our eyes.

From left to right: Tou Thao, Derek Chauvin, J Alexander Kueng and Thomas Lane (credit: Henn. Co. Jail)

The urgent need for police reform has galvanized the nation, with good reason. Far too many black lives have been lost to police violence. Far too few officers have ever been held accountable for their actions.

But even as we demand police reform, let’s not forget the prosecutors. Because without prosecutors, the police will never be held criminally responsible for their unjustified acts of violence.

The County Prosecutor’s Initial Charging Decisions in Floyd’s Murder Were Troubling

When Hennepin County Attorney Mike Freeman finally responded to the crime, Chauvin was charged with murder in the third degree and second-degree manslaughter. Many of us who follow the law scratched our collective heads.

In Minnesota, murder in third degree applies where a person unintentionally causes death by “perpetrating an act eminently dangerous to others . . . without regard for human life.”

Those specifics don’t quite mesh with the now viral video of George Floyd’s death.

Minnesota caselaw says that murder in the third degree does not apply where “all the blows were directed towards the victim.” Yet, Chauvin’s action were directed exclusively toward Floyd. Murder three, at least to me, was a problematic charge from a legal perspective. Plus, it carried a maximum possible sentence of only twenty-five years.

The County Attorney also charged Chauvin with manslaughter in the second degree, a much less serious offense that carries with it a 10-year penalty. This would hold Chauvin responsible for Floyd’s death under the theory that he created “an unreasonable risk, and consciously [took] chances of causing death or great bodily harm to another.”

This too, hardly seemed an adequate description of Chauvin’s nearly nine-minute uninterrupted assault that strangled the life out of Floyd as he begged for mercy.

There were other puzzling features in the initial criminal complaint.

It failed to include Floyd’s desperate pleas in which he said “don’t kill me” and “I’m about to die,” critical details which show what Chauvin knew as he continued to press his knee into Floyd’s neck. What the complaint did include, however, was Floyd’s height and weight — that he was over “six feet tall and over two hundred pounds” — facts that are seemingly irrelevant to murder charges given that Floyd was already pinned to the ground and immobile. It included the allegation that Floyd had “actively resisted being handcuffed,” also not relevant to the issue of what Chauvin did to Floyd after the handcuffs were tightened around Floyd’s wrists. And it cited to the disputed coroner’s report that suggested Floyd’s death was caused not just by the compression on his neck alone, but also by preexisting health issues, raising a bizarre and insupportable suggestion that Chauvin and his conspirators were not singularly to blame because a healthier person could somehow have lived longer under Chauvin’s relentless assault.

The County Attorney failed to charge the other officers at all.

The Amended Charges Were Brought by the State Attorney General

Once the Minnesota Governor handed the case to Minnesota Attorney General Keith Ellison, I felt pretty confident that the case would be recharged.

And sure enough, nearly a week after George Floyd was killed, Ellison upgraded the charges against Derek Chauvin to include unintentional murder in the second degree, as well as murder in the third degree and manslaughter in the second degree, and finally charged the three other officers involved in the case with aiding and abetting.

Minnesota’s murder in the second degree charge is not an intentional crime. Instead, it can be proven where an aggravated assault, such as the one that took place when Chauvin jammed his knee on Floyd’s neck and held it there for 8 minutes and 45 seconds, unintentionally results in death. The murder charge is far more serious than what was initially charged by the County Attorney, and carries with it a maximum penalty of forty years.

Not everyone, however, is satisfied with the Attorney General’s charging decision.

The Floyd family would like to see Chauvin charged with intentional murder in the first degree. Chauvin, after all, disregarded police protocol in using the knee hold for nearly nine minutes, and was told by Floyd, with his very last breaths, that Floyd was in fact “about to die.” While intentional murder may be harder to prove, a persuasive argument can be made that first degree murder charges are warranted and, in fact, appropriate here.

Why Did the Case Have to Be Moved to the State Attorney General’s Office in the First Place?

I’ve just laid out the legal landscape and the criminal charges for you. But what really bothers me, aside from the officers’ actions and Floyd’s horrific death itself, is the way the case was handled by prosecutors in the first place.

It wasn’t until Floyd’s murder was wrested away from the county attorney to the State Attorney General that upgraded murder charges were brought against Chauvin, and that the other three officers were charged at all.

This begs the larger question of why the local prosecutor failed to properly charge the case in the first instance.

And it should raise a huge red flag.

After all, most crimes are prosecuted by local officials. If the County Attorney failed to bring proper charges in the Floyd murder case when the entire nation was scrutinizing his every move, I’d hate to imagine what happens in the more “typical” cases of police brutality that occur well outside the national spotlight.

The Prosecutor’s Critical Role in Charging the Police for Excessive Force

Prosecutors wield tremendous power. They decide whether a crime was committed, whether to bring charges and what charges to bring. This is true whether the defendant is a civilian or a police officer.

Significantly, however, prosecutors rarely charge the police and often fail to obtain convictions for their unjustified and excessive use of force.

This cannot continue.

Prosecutors represent “the people.” When a crime is committed, it is not just the individual victim who is harmed. It is society. It is all of us.

Jessica S. Henry

Which means that when the police commit a crime, they harm not only the actual victim, but also society at large by violating the public trust. And prosecutors have an obligation to hold them accountable.

But there’s the rub. Local prosecutors work hand-in-hand with the police to make and prove their cases. They form personal relationships that make it hard for prosecutors to be objective and unbiased about an individual officer’s use of force.

More fundamentally, though, prosecutors depend on the police to prove their cases. They rely on the police to investigate, testify, provide physical evidence, and identify witnesses. Prosecutors may fear that an aggressive approach to police abuse in one case could harm their police relationships in other criminal cases.

Whatever the explanation, there is a long history of prosecutors looking the other way in the face of police violence and in failing to obtain convictions in the rare cases where charges are brought. While police violence is a national scandal, the refusal of the prosecution to hold the police accountable should also be on the public’s radar as an area ripe for reform.

What Can Be Done?

Given the potential conflict of interest that exists in tasking local prosecutors with the prosecution of local law enforcement, it perhaps makes sense to turn elsewhere. Counties could create special independent units to respond to cases involving police defendants who are accused of using excessive force against civilians. Or perhaps every case involving a police defendant should automatically be referred to a specialized unit in the State Attorney General’s Office. Or perhaps the Department of Justice should be alerted whenever there are allegations that the local police used lethal force against unarmed citizens.

But one basic truth remains: if we want to hold police responsible for their actions, we need to have prosecutors who are up to the task of prosecuting them.

Business as usual isn’t an option.

Police reform is long overdue. But as we map out a reform agenda, let’s be sure to address the role of prosecutors in failing to bring justice when presented with cases of excessive police violence. Without prosecutorial reform, there can be no justice.

*Cross-posted on Medium at https://medium.com/@jhenryjustice/dont-forget-the-prosecutors-when-we-talk-about-police-reform-a3f32cceb31f

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