Murder charge elevated to 2nd degree in George Floyd case; all four officers now face charges

[Nature Boy 2.0 8,378]

2 hours ago, elmcitymaven said:

For those of you wondering how Napolitano could theorize a first degree murder charge, it is important to note that the intent to kill does not require a significant period of time to develop. The intent may be developed in a moment, or over many years. All that is needed is deliberation and premeditation, both of which can occur in mere seconds. Is this hard to prove beyond a reasonable doubt? Yes. But here Chauvin pressed on Floyd's neck for nearly nine minutes. At some point, you have to ask yourself: how could Chauvin not have expected death to result from his actions? He may have started without the intent to kill, and that seems a reasonable read of the situation. However, there is a case to be made that at some point, there was development of a deliberate decision to have his conduct result in death.

 

Realistically, of course, it would be hard to stick. But prosecutors regularly overcharge to get a result that is hopefully more equitable given the circumstances.

Was hoping you would weigh in.

So if you overcharged,  the jury could still come back with a lesser charge ? 

I thought I read somewhere that one of the problems with the Trayvon case was that he was overcharged. 

 

Is that not accurate?

[elmcitymaven 9,712]

1 hour ago, Dashinka said:

Since you are around, just curious, do you see this actually going to trial?  I mean the notoriety of this incident makes me think it would be very hard to find an impartial jury almost anywhere in the US, I would think a plea may be in the mix.

I don't know, to be honest -- I don't work in any aspect of criminal law, even if some of our clients may be crooks. Seriously, the reality is that most cases, civil and criminal get settled or plead out. The three chaps standing around are more likely to plead out, and my impression (as an observer of all this, much like you) is that if they do, there will be little sense of injustice, more that the system is the system, and this is how things are.

 

Chauvin? Hard to say. The DA may say he or she wants a trial, but reality EVERYONE hates a trial more than ####### cancer except for people who are junkies for it. Trials SUCK. Juries are weird and slippery, the amount of money and preparation are staggering, and can hinge on something as dumb as what someone wears to court one day, or if a witness "looks funny." I think a plea is very realistic, and honestly, it is in everyone's interest to get him punished and focus on the more important aspects of restorative justice that surely will flow from this case. But who knows, it's Chauvin's right to have a trial and with the backing of the police union, he may feel he can come out with the same result or even better than pleading down.

 

24 minutes ago, Burnt Reynolds said:

I don't think anyone mentioned time, the key part of the word "premeditation" is the "pre" part, as in, before the act. You described the very same act conflating the "intent" (which actually is the defining trait of murder) with premeditation, which is flat out wrong. You might have a point if, for example (and beyond the obvious other examples of premeditation, such as discussing his intent before, or texting his intent, etc.), he put his knee on Floyd's neck, took it off, then put it back on resulting in his death. In that case, that short span of time offered the opportunity for premeditation. Of course, we know that didn't happen, or else they'd have charged him with first degree, so, out the window. Right now, the best case scenario is indeed what he's charged with.

I know exactly what intent is, and perhaps I was sloppy. Mea culpa, mea culpa, mea maxima culpa. [Insert TBone joke about tortfeasing.] What can I say, I was typing my response on my phone sitting on a recliner, printing objections to subpoenas.

 

I think you may be confused about what premeditation involves. There is no need for Chauvin to have removed his knee from Floyd's neck for premeditation to develop. Consider the case of Commonwealth v. Carroll, which has these basic facts (I admit I am stealing this from my outline from about 6 years ago):

 

Quote

 

Defendant married a woman who later suffered from a schizoid personality type, complained of nervousness and was violent in disciplining their children. Defendant was upstanding former military man. Upon his wife’s suggestion and request, Defendant placed a loaded pistol on the windowsill near their bed so that his wife would feel safe while he was out of town. When he returned from his trip, a violent fight ensued and continued for several hours. Defendant remembered the gun on the windowsill over his head, and according to his own testimony, he “reached up and grabbed the pistol and brought it down and shot her [his wife] twice in the back of the head.” He testified that he was not sure whether he felt his had move toward the gun and that the only thing he could remember from that point on is after the shots. “All I remember hearing was two shots and feeling myself go cold all of the sudden.” Defendant pleaded guilty to the indictment charging him with murder and he was subsequently tried without a jury and found guilty of first degree murder. The Defendant appeals, arguing that there was no premeditation and therefore the killing did not constitute first-degree murder.

 

Issue: Was there enough time elapsed to support premeditation?

 

Rule:  While premeditation is an element of first-degree murder, where a killing is willful, deliberate and intentional, no time is too short for the necessary premeditation to occur.

 

Analysis: The specific intent to kill may be found from a defendant’s words or conduct or from the attendant circumstances and may be inferred from the intentional use of a deadly weapon on a vital part of another human being.  If a killing is intentional, willful, deliberate and premeditated, the amount of time between the premeditation and the actual killing is immaterial. Therefore, the defendant’s contention that there was insufficient time for premeditation is without merit. Premeditation is not negated by circumstances tending to show that the defendant acted with a lack of escape plan. 

 

The Court essentially holds that while some premeditation is a necessary element of murder in the first degree, “no time is too short for the necessary premeditation to occur”. In other words, it is immaterial how much time passes between the premeditation and the actual fatal act that takes place. Given the fact that premeditation can take place a fraction of a second before the fatal act takes place, think about the fine line between murder in the first, which requires premeditation, and second-degree murder, which does not.

So really (and I do apologize I am veering wildly into Wall o' Text territory here), the question is: did Chauvin premeditate a killing? Premeditation requires only that the defendant think out that a killing will result from his conduct, and that thought can arise in a moment (which is why I mentioned time earlier). Now, we cannot see into Chauvin's mind, and we as mere observers at some distance are not privy to the totality of whatever evidence exists currently. It can, however, be argued that Chauvin could have formed a thought during those 8+ minutes that hey, I could kill this guy if I keep doing this, why not. Arguendo, if he did and continued on, there is premeditation. Deliberation, at that point, is amply clear from the (putative) facts.

 

But this is all purely an exercise in "what if"-fery. We do not know, and we do not know what evidence exists. It is possible that there exist, or are developing, additional facts that support a charge of murder in the first degree. We are foolish to say that a superseding indictment is impossible in the absence of more. Just because there has been no charge of murder in the first degree yet does not mean the door is closed forevermore. Now, do I think it is likely? Hell no. Is it possible? Yes, if there exists sufficient evidence to support a charge. Facts reveal themselves over time, and we are so very early in the game.

 

 

[Voice of Reason 10,298]

Personally,  I expect a bench trial in this case, not a jury trial.

[elmcitymaven 9,712]

25 minutes ago, Nature Boy 2.0 said:

Was hoping you would weigh in.

So if you overcharged,  the jury could still come back with a lesser charge ? 

I thought I read somewhere that one of the problems with the Trayvon case was that he was overcharged. 

 

Is that not accurate?

No, that's accurate to the best of my recollection. My crim pro professor was a former US Attorney in San Diego and she said that overcharging was the name of the game. Most defendants plead down. The question is always whether there is enough to support the charge in the first place. I don't remember enough about the procedural history of the Zimmerman case to know what happened there. I have a vague recollection that the charging was messed up, some prosecutor wanting to grandstand. The charges need to be cognizable. 

[elmcitymaven 9,712]

4 minutes ago, Voice of Reason said:

Personally,  I expect a bench trial in this case, not a jury trial.

That's up to the defendant. When it comes to a criminal matter, the Sixth Amendment (as incorporated by the states through the Fourteenth Amendment) preserves the right to trial by jury in every matter. The Seventh is the one for civil matters, and there is no automatic right unless the amount in controversy is above a certain, piddling amount (checks text), oh, $20. But there are any number of civil actions for which monetary damages are not a remedy, and will be bench trials, unless there is a state law that grants such a right.

 

Chauvin should SERIOUSLY consider this, in my opinion. It is going to be difficult to find an impartial jury, and let's face it, it's cheaper, faster, and the judge may give him a more lenient result.

[Voice of Reason 10,298]

While I definitely want to see justice done in this case, and hope all the officers get the max penalty allowed by law, people who are looting and rioting for George Floyd should consider his criminal history:

 

1998 - 10 months in prison for armed robbery

2002 - 8 months in prison for cocaine possession

2004 - ditto

2005 - ditto

2007 - 5 years for armed robbery of a pregnant woman

 

https://www.dailymail.co.uk/news/article-8366533/George-Floyd-moved-Minneapolis-start-new-life-released-prison-Texas.html

 

 

No one deserves to die like he did.  No matter their past.  But our country does not deserve to burn for a criminal such as this.  The many crimes stemming from one criminal is just... criminal.

[OriZ 3,157]

47 minutes ago, elmcitymaven said:

I don't know, to be honest -- I don't work in any aspect of criminal law, even if some of our clients may be crooks. Seriously, the reality is that most cases, civil and criminal get settled or plead out. The three chaps standing around are more likely to plead out, and my impression (as an observer of all this, much like you) is that if they do, there will be little sense of injustice, more that the system is the system, and this is how things are.

 

Chauvin? Hard to say. The DA may say he or she wants a trial, but reality EVERYONE hates a trial more than ####### cancer except for people who are junkies for it. Trials SUCK. Juries are weird and slippery, the amount of money and preparation are staggering, and can hinge on something as dumb as what someone wears to court one day, or if a witness "looks funny." I think a plea is very realistic, and honestly, it is in everyone's interest to get him punished and focus on the more important aspects of restorative justice that surely will flow from this case. But who knows, it's Chauvin's right to have a trial and with the backing of the police union, he may feel he can come out with the same result or even better than pleading down.

 

I know exactly what intent is, and perhaps I was sloppy. Mea culpa, mea culpa, mea maxima culpa. [Insert TBone joke about tortfeasing.] What can I say, I was typing my response on my phone sitting on a recliner, printing objections to subpoenas.

 

I think you may be confused about what premeditation involves. There is no need for Chauvin to have removed his knee from Floyd's neck for premeditation to develop. Consider the case of Commonwealth v. Carroll, which has these basic facts (I admit I am stealing this from my outline from about 6 years ago):

 

So really (and I do apologize I am veering wildly into Wall o' Text territory here), the question is: did Chauvin premeditate a killing? Premeditation requires only that the defendant think out that a killing will result from his conduct, and that thought can arise in a moment (which is why I mentioned time earlier). Now, we cannot see into Chauvin's mind, and we as mere observers at some distance are not privy to the totality of whatever evidence exists currently. It can, however, be argued that Chauvin could have formed a thought during those 8+ minutes that hey, I could kill this guy if I keep doing this, why not. Arguendo, if he did and continued on, there is premeditation. Deliberation, at that point, is amply clear from the (putative) facts.

 

But this is all purely an exercise in "what if"-fery. We do not know, and we do not know what evidence exists. It is possible that there exist, or are developing, additional facts that support a charge of murder in the first degree. We are foolish to say that a superseding indictment is impossible in the absence of more. Just because there has been no charge of murder in the first degree yet does not mean the door is closed forevermore. Now, do I think it is likely? Hell no. Is it possible? Yes, if there exists sufficient evidence to support a charge. Facts reveal themselves over time, and we are so very early in the game.

 

 

I honestly don't see how anyone can convict of first degree here. You just can't prove it. Granted, I'm not and will likely never be exposed to all the evidence, but to the extent that I know about this case, if I was sitting on the jury I could not in good conscience convict him of murder in the first degree. I just don't see the premeditation there. Second degree, sure. I don't think he was sitting there thinking "In a few minutes you're going to be dead, dude".

[elmcitymaven 9,712]

1 minute ago, OriZ said:

I honestly don't see how anyone can convict of first degree here. You just can't prove it. Granted, I'm not and will likely never be exposed to all the evidence, but to the extent that I know about this case, if I was sitting on the jury I could not in good conscience convict him of murder in the first degree. I just don't see the premeditation there. Second degree, sure. I don't think he was sitting there thinking "In a few minutes you're going to be dead, dude".

Yes, and there's the rub: you may not be able to prove it beyond a reasonable doubt, but you may be able to charge it. What it takes is a greater knowledge of the evidence and a clever prosecution -- and a jury willing to buy it. Now, you and I may not see premeditation (and I don't believe I do at all), but it's possible that a jury might.

 

To be clear, I do think second degree is an appropriate outcome here. This is simply an interesting thought experiment: how would one get to first degree murder? All it would take is, as you say, the cop thinking "in a few minutes you're going to be dead, dude." The law is a slippery fish, as malleable as quicksilver. Rarely is anything black or white. If it were, there would be no need for lawyers. [insert TBone joke about lawyers]

[Burnt Reynolds 5,058]

1 hour ago, elmcitymaven said:

I know exactly what intent is, and perhaps I was sloppy. Mea culpa, mea culpa, mea maxima culpa. [Insert TBone joke about tortfeasing.] What can I say, I was typing my response on my phone sitting on a recliner, printing objections to subpoenas.

 

I think you may be confused about what premeditation involves. There is no need for Chauvin to have removed his knee from Floyd's neck for premeditation to develop. Consider the case of Commonwealth v. Carroll, which has these basic facts (I admit I am stealing this from my outline from about 6 years ago):

 

So really (and I do apologize I am veering wildly into Wall o' Text territory here), the question is: did Chauvin premeditate a killing? Premeditation requires only that the defendant think out that a killing will result from his conduct, and that thought can arise in a moment (which is why I mentioned time earlier). Now, we cannot see into Chauvin's mind, and we as mere observers at some distance are not privy to the totality of whatever evidence exists currently. It can, however, be argued that Chauvin could have formed a thought during those 8+ minutes that hey, I could kill this guy if I keep doing this, why not. Arguendo, if he did and continued on, there is premeditation. Deliberation, at that point, is amply clear from the (putative) facts.

 

But this is all purely an exercise in "what if"-fery. We do not know, and we do not know what evidence exists. It is possible that there exist, or are developing, additional facts that support a charge of murder in the first degree. We are foolish to say that a superseding indictment is impossible in the absence of more. Just because there has been no charge of murder in the first degree yet does not mean the door is closed forevermore. Now, do I think it is likely? Hell no. Is it possible? Yes, if there exists sufficient evidence to support a charge. Facts reveal themselves over time, and we are so very early in the game.

No doubt, an exercise of what if-ery, but I like it as it's actually thought provoking.

 

So, with regard to the removal of the knee thing, I want to point out that I prefaced that with "example". By no means is that example the end-all be-all of premeditation, but I felt it was the most appropriate/applicable.

 

Now, with regard to your example, this is entirely different. A premeditated choice to kill is one made before the action itself. It is logically inferred that a person in a right mind knows that picking up a gun and pointing it at someone, followed by pulling the trigger, is going to kill a person. It is not one act alone with much varying degrees of potential deadliness especially given where they are aiming. They then decide to shoot. Not once. Twice. Two acts. The action is shooting. The premeditation is picking up the weapon, pointing it. They know the high probability of death, they make a choice, or in this case, made at least two. 

 

In my biased assumption, the cop knows that a knee to the head can be deadly, and he made sure it was there for an awful long time. Of course, no one knows how much time is enough to kill someone, nor the probabilities, just that it's dangerous. My assumptions, however, that as a functional adult who was vetted for his officer position, he has more understanding of force and has more difficulty claiming ignorance. This is the first reason why I come to the conclusion he committed murder. Second, after Floyd was unconscious he continued another several minutes. This, to me, is icing on the cake for intent. But if that choice wasn't made before he did it, it wasn't premeditated, and to argue that mid-act he could've made a premeditated choice (that at this point would require a Now You See Me-level mentalist), simply isn't going to happen.. even if it's in the realm of most minute possibilities, which I concede is a possibility, despite the astronomical unlikelihood, because even I watched 12 Angry Men.  😉

Edited June 6, 2020 by Burnt Reynolds

[Voice of Reason 10,298]

20 minutes ago, OriZ said:

I honestly don't see how anyone can convict of first degree here. You just can't prove it. Granted, I'm not and will likely never be exposed to all the evidence, but to the extent that I know about this case, if I was sitting on the jury I could not in good conscience convict him of murder in the first degree. I just don't see the premeditation there. Second degree, sure. I don't think he was sitting there thinking "In a few minutes you're going to be dead, dude".

While I agree with you on this, I think the one wildcard in the whole thing might come out of the night club relationship, and Floyd recently firing Chauvin.  If this bears out at true, then motive and intent might be on the table. 

 

SO much we don't know yet.

[TBoneTX 45,961]

2 hours ago, elmcitymaven said:

we as mere observers at some distance are not privy to the totality of whatever evidence exists currently.

See below:

1 hour ago, Voice of Reason said:

the one wildcard in the whole thing might come out of the night club relationship

I've looked and looked for a piece that I read just this morning about how incurious the mainstream media are about this, and how they should be absolutely swarming all over it.  I agree with VoR that this relationship (a whole year working at the same place!) holds some answers.

[TBoneTX 45,961]

2 hours ago, elmcitymaven said:

Mea culpa, mea culpa, mea maxima culpa.

Tantumodo in regionalibus colloquiis aliter atque Anglice loquimini!

2 hours ago, elmcitymaven said:

[Insert TBone joke about tortfeasing.]

Heterodox tortfeasin',  Maven ma'am.

Seriously:  If there's a subpoena, why isn't there a suprapoena?

1 hour ago, elmcitymaven said:

[insert TBone joke about lawyers]

A placeholder while I search for one better:  What do you call 8,107 lawyers at the bottom of the ocean?  A good start, si man.

[yuna628 9,700]

13 hours ago, Voice of Reason said:

While I definitely want to see justice done in this case, and hope all the officers get the max penalty allowed by law, people who are looting and rioting for George Floyd should consider his criminal history:

 

1998 - 10 months in prison for armed robbery

2002 - 8 months in prison for cocaine possession

2004 - ditto

2005 - ditto

2007 - 5 years for armed robbery of a pregnant woman

 

https://www.dailymail.co.uk/news/article-8366533/George-Floyd-moved-Minneapolis-start-new-life-released-prison-Texas.html

 

 

No one deserves to die like he did.  No matter their past.  But our country does not deserve to burn for a criminal such as this.  The many crimes stemming from one criminal is just... criminal.

This makes me a little uncomfortable in two ways. As I had mentioned before Christianity Today had put out a wholesome piece on Mr. Floyd making no real mention of his past history and the entire implication was that he was a very decent person trying to do good in the community. And perhaps, he was. Perhaps he had or was on a path of turning his life around. He served his time, and it's now 2020.. not 1998 or 2007. But it is clear that he had a lingering drug problem. There are many Libertarians that advocate the decriminalization of drugs, and though I am not sold on that aspect - no man deserves to be callously murdered because they need help for their addiction problem or because they were merely accused (not proven) of passing a bad $20 (afterall the cop's wife passed bad checks and it seems the cop himself committed voter fraud).  I say this in earnest, people that committed crimes in the past or were on the path to getting help for a drug problem can and do change. A person can behave appallingly and then reform, and make real changes as penance. They should not always be thought of as inherently irredeemable unless proven as such. The ability to redeem is as important as the ability to forgive. It can be hard to redeem oneself, especially if that life was all one was used to (as many young men in that life are), and the temptation of drug abuse is great. Libertarians would argue a great many young men 'hustling' in poverty and making cash from pot growing and dealing and being tossed in jail, while typically wealthier state-sanctioned medical growers get a free pass - if legalization occurred these young poor men with little hope could one day be seen as entrepreneurs (just using pot as an example because heavier drugs that are dangerous is where I tend to diverge).

 

I am uncomfortable at making Mr. Floyd out to be wholesome, while at the same time shifting goalposts to form an emerging narrative I've been seeing in some that the cop will surely use in his defense (Floyd is scum and deserved what he got somehow). This dehumanizes Mr. Floyd. The real inhumane person is his killer and the people who stood by and allowed it to happen. While it is interesting that Mr. Floyd and the cop worked together, attempts to say this was a pre-meditated murder is hearsay and too difficult to prove. It may be possible, but it is also likely easier to simply go with the current theory they are charging him under (even then it will be an uphill battle.. when it shouldn't have to be).

[Sarge2155 4,590]

14 hours ago, Voice of Reason said:

While I definitely want to see justice done in this case, and hope all the officers get the max penalty allowed by law, people who are looting and rioting for George Floyd should consider his criminal history:

 

1998 - 10 months in prison for armed robbery

2002 - 8 months in prison for cocaine possession

2004 - ditto

2005 - ditto

2007 - 5 years for armed robbery of a pregnant woman

 

https://www.dailymail.co.uk/news/article-8366533/George-Floyd-moved-Minneapolis-start-new-life-released-prison-Texas.html

 

 

No one deserves to die like he did.  No matter their past.  But our country does not deserve to burn for a criminal such as this.  The many crimes stemming from one criminal is just... criminal.

Why would they consider his criminal history? Does his criminal history make him MORE deserving to have the cop put his knee on his neck for almost 9 minutes until he was dead? Oh I see what you are saying, he had a criminal record two decades old so it's OK if we knee his neck until he is dead! The protestors and the cops alike had no idea at that time about Mr. Floyd's criminal history so your comment is totally biased and out of line!

 

The main difference between criminals of color and criminals that or not of color is the criminals of color most likely end up dead during apprehension and or capture (there are exceptions yes). Criminals that or not of color usually are taken alive i.e. James Holmes (Colorado movie theater mass murderer.) Timothy McVeigh and Devin Kelley (Texas church shooter) he had an criminal record also. Did YOU consider their criminal records or mental health concerns of course you did not! The list goes on and on but those are just a few. As what was pointed out even the cops wife wrote a worthless check. What makes George Floyd different I ask you? Why would his criminal record entitle him to be killed on video then aired on national TV, I might add that (lynchings) used to be legal in the U.S. but it took people of ALL colors protesting and yes sometimes rioting to effect CHANGE! I am by no means advocating looting and rioting or any type of violence.

 

Even your ending statement  " No one deserves to die like he did.  No matter their past.  But our country does not deserve to burn for a criminal such as this.  The many crimes stemming from one criminal is just... criminal." The no matter their past portion of your text hinted at a voice of reason, but you lost it in the ending.

 

Violence is violence we as a nation and other country's too use it regularly to further our agendas (and also to defend ourselves), this is a known fact and has been this way since the beginning of time. It will never change. I submit to you, it's hard for you to understand because you have not, but most importantly you can not walk a mile in the other persons shoe.

 

In summary like I have said several times before in my posts, racial discussions usually always end badly, but one thing is for sure true feelings usually always come out too as several have within this thread.

[Nature Boy 2.0 8,378]

1 hour ago, yuna628 said:

This makes me a little uncomfortable in two ways. As I had mentioned before Christianity Today had put out a wholesome piece on Mr. Floyd making no real mention of his past history and the entire implication was that he was a very decent person trying to do good in the community. And perhaps, he was. Perhaps he had or was on a path of turning his life around. He served his time, and it's now 2020.. not 1998 or 2007. But it is clear that he had a lingering drug problem. There are many Libertarians that advocate the decriminalization of drugs, and though I am not sold on that aspect - no man deserves to be callously murdered because they need help for their addiction problem or because they were merely accused (not proven) of passing a bad $20 (afterall the cop's wife passed bad checks and it seems the cop himself committed voter fraud).  I say this in earnest, people that committed crimes in the past or were on the path to getting help for a drug problem can and do change. A person can behave appallingly and then reform, and make real changes as penance. They should not always be thought of as inherently irredeemable unless proven as such. The ability to redeem is as important as the ability to forgive. It can be hard to redeem oneself, especially if that life was all one was used to (as many young men in that life are), and the temptation of drug abuse is great. Libertarians would argue a great many young men 'hustling' in poverty and making cash from pot growing and dealing and being tossed in jail, while typically wealthier state-sanctioned medical growers get a free pass - if legalization occurred these young poor men with little hope could one day be seen as entrepreneurs (just using pot as an example because heavier drugs that are dangerous is where I tend to diverge).

 

I am uncomfortable at making Mr. Floyd out to be wholesome, while at the same time shifting goalposts to form an emerging narrative I've been seeing in some that the cop will surely use in his defense (Floyd is scum and deserved what he got somehow). This dehumanizes Mr. Floyd. The real inhumane person is his killer and the people who stood by and allowed it to happen. While it is interesting that Mr. Floyd and the cop worked together, attempts to say this was a pre-meditated murder is hearsay and too difficult to prove. It may be possible, but it is also likely easier to simply go with the current theory they are charging him under (even then it will be an uphill battle.. when it shouldn't have to be).

Evidently Mr. Floyd was a carrier addict and criminal. Assaulted a pregnant woman and spent 5 years in jail. Sorry but if you assault a pregnant woman you are scum

 

None of this justifies or excuses anything the cop did .