Getting a Conviction in the George Floyd Case

the three other police officers involved. But Ellison warned about the difficulties in getting a jury to convict police officers. Trying this case will not be an easy thing. Winning a conviction will be hard. In fact, County Attorney Freeman is the only prosecutor in the state of Minnesota who has successfully convicted a police officer for murder. Joining me as former federal prosecutor Elie Honig of Loewenstein Sandler Elly, Let's talk about how this was handled. Prosecutors initially charged

just the one officer with a lesser charge. Could they have brought these new charges against all four officers from the start and perhaps helped to quail some of the protests. Yeah, June, they could have charged this as a second degree murder from the start, And I wrote a piece the day after the initial charge came out saying they should have charged second degree from the start. I'm not sure what impact that would have had on the riots. That's a

complicated question. So the initial charge came from, This is important to understand from the Kennepin County Attorney, which is sort of the local DA, essentially a county level prosecutor, and I had some real questions about his approach. If you looked at that complaint, the initial complaints, it was baffling in some ways. He left out really important evidence

of guilt. For example, the initial complaint lists some of the things that George Floyd said while he was pinned down by the officers knee to his neck, but it omits the most important things he said, which where I can't breathe and please don't kill me. As a prosecutor, that's inexplicable why you would leave that out. So I had my doubts about, at a minimum, the competency of

the Hennepin County Attorney. Now a couple of days after that, the Minnesota state Attorney General took over the case, which I think was absolutely the right move, and then a few days after that he added a second degree murder charge, which I think was the right move. I think it's supported by the evidence and the way that the a G charge that second degree count. It's smart, it's clever, it's tactically smart. There's two ways you can prove a

second degree murder charge under Minnesota law. The harder way is to prove an intentional killing. That's not the way he charged it. The easier way is to prove there was an intentional assault that resulted in a killing, and he charged it that way. So I think he's doing what every prosecutor should do. You look for the highest, most serious applicable charge that you feel confident you can prove, and so at trial, the jury will have the choice

of finding the lesser included charge exactly. That's very important. Understand people hear this phrase lesser included offenses. So it's not going to be all or nothing yet or no on that second degree count, and that's it. Even if the jury finds not guilty or can't reach a verdict of guilty on the second degree charge, they still have the option to convict on the lower charges, including the third degree charge, the same one that was in the

first complaint, and an even lesser manslaughter charge. So there are sort of safety net options here against from the prosecutor's point of view. Now, the other three officers have been charged with aiding and abetting second degree murder and aiding and abetting second degree manslaughter. In terms of proof at trial, what does the prosecutor have to prove? So aiding and abetting is an important concept. I used to charge it all the time as a prosecutor, and essentially

the basic concept is a simple one. If you help someone else commit a crime, even in some small way knowingly you have to know what's going on, then you too are just as liable as the person who commits the crime with his own hands. Now the proof is going to be trickier on the other three police officers, because for each one of them, the prosecutors going to have to prove more than just the fact that the person was present. There's actually a defense called me or presents.

In other words, you will hear some of these police officers, I believe, defend themselves by saying yes, I was there, Yes, I was present, but I was merely present, meaning I did not do anything to knowingly assist in this assault and the resulting debt. And so the prosecutors are going to have to really break it down for the jury and say for each of these officers. They're not gonna

be able to lump of together. They're going to have to say, officer a officer, the officer, see, here's where he was at this moment, Here's what he did, Here's what he was able to see and hear, Here's what he did and did not do. And you could end up with varying degrees of proof against the varying officers. For example, one of the officers in the initial complaint, it says he said, shouldn't we roll? Meaning Mr Floyd, shouldn't we roll him on his side? And at one

point he says I should take his pulse. I mean, that's gonna be a harder charge to make than against some of the other officers. But things like helping to pull George Floyd out of a car, which appeared to have happened because the police car, the other officers who knelt on top of George Floyd, that's going to be the kind of evidence prosecutors are looking at. Let's talk about the medical examiners reports, because there are two medical

examiners reports, and there are differences in them. They both conclude it was homicide. Tell us about the differences and how the defense might use that. Yeah, this is a boy. As a prosecutor, you just sort of roll your eyes and go off, No, not this, because you never want competing medical examiners reports because then it becomes an issue

in the case when it doesn't really need to be. So, as I understand, one of the reports concluded that the cause of death was essentially a heart attack or some combination of a pre existing medical condition along with the physical actions taken by the police, that it was sort of a combination. That was the original report, and then the later report, the quote unquote independent report that the family had done, says it was asphyxiation, suffocation, cut off

of oxygen or blood to the brain. That's I think the more logical conclusion. So there will be a fight over which one of those is real. But the bottom line, though, is either way, the prosecution should be fine because even if you use the original report, the one that defense is going to like that or the mixed causes autopsy report, as long as you can show that the officers actions

were a significant contributing factor. In other words, I would argue to a jury, look, George Floyd wasn't going to die on that day if not for what this police officer did. This police officers actions, even under their theory, combined with whatever helps conditions he had to cause the debt. So legally that's enough. But it's a needless complication from the prosecutor's perspective, and it gave me flashbacks to when things like this would happen. You, Oh no, why couldn't

they just get it right? For first, the Minnesota A. G. Keith Allison said that winning a conviction will be hard. People will look at this video and say, oh, how can this not be a slam dunk case. But in the past, we've had lots of cases of police officers exerting violence, perhaps leading to death against black men, and the juries have acquitted the officers time and time again. So how do you get over that? Chief Ellison? The Attorney general is nobody should assume that this is going

to be an easy conviction. And I'll tell you why. A couple of reasons Number one. Anyone who tells you any jury trial is a sure win or a sure loss doesn't know what they're talking about. Haven't tried enough cases. No jury trial at certain juries are inherently unpredictable. They are comprised of twelve everyday, regular, normal human beings, and you have to get them unanimous beyond a reasonable doubt

in order to convict. I mean, and now, if you're trying to get twelve people to agree on a pizza topic, that that's hard to do, never mind on something like this. Second, police cases tend to be even more unpredictable because people tend to sometimes like the police. They're brought up to respect and look up to the police. And also police officers sometimes have defenses available to them that normal people don't have, which is, he was trying to do his job,

he was in difficult circumstances. And then you add on top of that the fact that this is going to be a racially charged case and a massive media case, and that throws in another element of uncertainty. So if you're a prosecutor, you're right, June that there is, of course the history of inexplicable and I think unjust verdicts. In police cases, and especially in racially charged police cases.

The best you can do here as a prosecutor is to keep your jury focused and just say, this is not about all the hype that's out there in the world. This is about this videotape and what these police officers did to George Floyd on that corner on that day. That to keep dry on the ball, focus on it, focused on the evidence and that video above. All two of the officers have had several misconduct complaints against them.

Will that come in a trial against them? That's gonna be one of the motions that will likely be fought out in pre trial motions. I think it's it depends on the nature of those prior complaints. Now here's here's the problem. The defense lawyers are gonna say, that's prejudicial, meaning that's this is evidence of things that my my clients, this former police officer had done, did it completely different times, completely different places. It's just intended to inflame the jury

and tell the jury he's generally a bad guy. Um, when that's not the relevant legal question. The relevant legal question is did he commits this crime on this state? I think the prosecutor may are you. Well, but it's admissible because it goes to a broader pattern of conduct that goes to his m so to speak, his motus operandi. But if I had to guess, most judges are going to keep that kind of evidence out there, going to say it's undo, be prejudicial to the defendant, and it's

it's not probitive enough. It doesn't tell you enough that's relevant about what happened on the date of the charge crime. But that's going to be a heated battle in the pre trial motions for sure. So, um, the US Justice Department Civil Rights Division is also investigating Floyd's death. What charges might they be looking at? Yeah, so I think they are looking at a charge called deprivation of civil rights. It's a little misleading because the word civil is in

the title. But it is a crime. And here's what the crime is. It is a crime for somebody acting under color of law. And that just means anyone exercising any public authority, police officers, unquestionably qualified. If a person acting under color of law deprive somebody, willfully deprive somebody of a constitutionally protected right. Now hear you would think, well, what's the right I mean it's the right to be alive. But the technical way you would phrase that would be

the right to be free of unreasonable police seizure. So we do see cases like this. Sometimes the d o J has brought charges against police officers officers for using excessive sometimes I think famously they declined to do so in the Eric Garner case. Um, but they've given off d o J has given off pretty strong signals that

they intend to charge it. That's how I read the statements that are coming out of d o J. And so also important to know you can have state charges and federal charges simultaneously, or for or for the same crime. That's not a double jeopardy problem. The U. S. Supreme Court actually just ruled last year in that you can have charges in the coming from the federal government's Department of Justice and the state government as well. And I

think it's likely we'll see that. So that's another sort of safety net, I guess, um for people who want to see a conviction here and believe that that's that's what justice requires. Are are a federal civil rights charges more almost more of a political decision or partially a political decision, because as you mentioned, Eric Garner, they didn't charge, and they didn't charge um Freddy Gray's death in Maryland. In so some of the very controversial ones we didn't

see federal civil rights charges. Well, the no prosecutes, no prosecutorial decision is ever supposed to be political, And I think every every prosecutor in office will tell you that this is all about the facts in the law, and that's as it should be. As a practical matter. Prosecutors are human beings. I mean, I was a prosecuted for fourteen years. Everyone reads the papers, everyone watches TV and

listens to the radio. And you wouldn't beat human if you did if if you didn't consider, um, what's the effect of this going to be in in the real world. Another thing to keep in mind is every case stands on its own merits in different cases have different levels of sort of culpability, and um, you know, you could well see a different determination made now. I mean, look, this case is similar in a lot of ways in the Eric Garner case, but it's not identical. And same

goes with the Freddie Gray case. Also, you have different people making the decisions. I mean, right, the Freddie Gray case was under a different administration. Eric Garner was under this presidential administration, but a different attorney general, so you have different decision makers. So, UM, I think you're right to know, and it's important to be aware of the history of the Justice Department in deciding to bring these kind of charges or declining. Um. And I will obviously

see what they do here. But I'm fairly confident, and this is not based on inside information. This is just based on reading the tea leaves from the public statements. I'm fairly confident they will charge UH, at least officers Chauvin. President Obama called on mayors to review their police department's use of force policies. Does it depend on states calling for new legislation to overhaul police procedures to ban show colds? Is that where it starts? So? I worked on police

reform for five years as a prosecutor. When I was with the new Jersey Attorney General, we worked very closely with police departments on reform. I don't think there's any one answer. I think it needs to start at the highest levels, from from our elected officials in Washington, d C. But the real action, the real rubber hits the road. I believe at the local levels of state, county, and

local level. And there there are a whole range of readily available police reforms out there, whether it's changing your use of force policy, when is it okay to use what level of force up to an including lethal force? Can you you know can UM? Chokeholds and strangleholds should be I think barred in and they are barred in some but not all police departments. UM use of body warrant cameras, UM, training police officers to recognize individuals with

mental health problems. UM. I mean there there's just there's there's many reforms out there that can be adopted. I think legislation is part of it, I think, but but not by itself the answer. I think the real leadership has to come from police leaders, from mayors, from local prosecutors. And the key thing is building relationships between those leaders. And you're real community leaders, You're real clear g your

people who the community will listen to. Because when a crisis like this happens, and I'm proud to say in New Jersey we've actually had a very good response. We've had enormous spirited protests in Newark and Camaden around the state, and very little violence and I think a big reason for that is because we have strong police leaders, like

strong local leaders, they already have the relationships. You can't just pick up the phone and try to figure out who the leader of the religious community is in New York for the first time when this happens, you have to already know each other. And you can see that happening a bit in New Jersey, and I think there's a good model there to follow. Thanks for being on Bloomberg Law Alley. That's former federal prosecutor Ellie Honig of

Lowenstein Sandler. And that's it for this edition of Bloomberg Law. Remember you can always get the latest legal news by going to our Bloomberg Law podcast. You can find them on iTunes, SoundCloud for Bloomberg dot com, slash podcast Slash Law. I'm John Rossel. Thanks so much for listening, and remember to tune to the Bloomberg Law Show weeknights. Attend them Easter right here on Bloomberg Radio.