Former Castile special prosecutor discusses charges against officers in Floyd case

George Floyd's family and friends will gather Thursday afternoon for a memorial service at North Central University, a private Christian institution in Minneapolis. The service will be livestreamed, and is one of several planned ahead of Floyd's funeral in Houston next week.

Four former Minneapolis police officers involved in the case are in custody and facing criminal charges. Attorney General Keith Ellison on Wednesday announced an additional, upgraded murder charge against Derek Chauvin, while three other officers are charged with aiding and abetting second-degree murder and manslaughter.

MPR News host Cathy Wurzer talked with Don Lewis for more on the charges and how the case might unfold. Lewis served as special prosecutor in the case against former St. Anthony police officer Jeronimo Yanez, who was charged with manslaughter in the 2016 shooting death of Philando Castile.

This interview has been edited for clarity and concision.

Let's start with that upgraded charge against former Minneapolis officer Derek Chauvin. We see him in the video with his knee on George Floyd's neck. He was charged last week with third-degree murder and second-degree manslaughter. Now we have a second-degree murder charge added as well. What does that new charge mean?

Well, the attorney general I think had two objectives. One was to upgrade the charge, both because the facts warranted it, second, because I think there were some legal scholars who were looking at the third-degree murder charge and thought it might be legally defective. But more important, he needed to find a vehicle to bring in the other three officers.

This second-degree murder charge for unintended killing that occurred during the course of a serious assault accomplished the objective of upgrading the charges, but also enabled him to bring in the other three [officers.] Because one important fact when you charge aiders and abettors, and these three cops are going to be charged as aiders and abettors, is that you have to share the same level of intent, and that's much easier to do with this second-degree murder charge, particularly where you do not have to prove that the killing was intentional.

If he had charged the second-degree murder as an intentional killing, he would also have to prove that the other three police officers intended that killing as well. So the way he structured these charges brings the other three officers in and increases, I think, his prospects for a conviction at trial.

I was trying to think back in all the trials I've covered and I don't remember this ever happening — how unusual is it to have other officers who were at a scene being charged as well? I mean, especially these three, with aiding and abetting?

I can't think of a situation in Minnesota, but the most prominent case that had a similar alignment of multiple officers was the Freddie Gray case in Baltimore. Freddie Gray was shackled and put in the back of a police van without being secured. There were multiple officers involved in doing that, and then the van drove away at high speeds and turned around, and it eventually broke his neck. And the officers were acquitted. So that is the example that I think of first.

But really, we haven't seen this in Minnesota. For these other officers, too, what will [Attorney General] Ellison need to prove to secure convictions on these aiding and abetting charges?

Well, he'll have to prove two elements, I think. He'll have to prove that the defendant knew that the principal officer here was doing something wrong, was committing an unlawful assault, and secondly, that each of these officers intended their presence or their actions to facilitate or further the commission of the crime.

You mentioned the Baltimore case. [In] that case, charges were brought pretty quickly. Keith Ellison has dismissed the idea that all the public outcry influenced the pace and the severity of the charging decisions here. What's your take?

Attorney General Ellison is a very ethical public servant, so he is going to follow his ethical duty not to overcharge a case. So I think he's been very careful in framing these charges, but I think it's fair to say that the pressure put on by the community in their protests expedited a lot of this decision making. It first and foremost expedited the governor's decision to bring the attorney general in the case to begin with, and it really made imperative the fact that the prosecutor act with some urgency here.

The Philando Castile case was very visible. Lots of public and media attention, obviously. Do you think it's possible to get a fair trial in Hennepin County given all the attention to this case?

I think it is. You'd have to make an argument that there is some county where no one has been watching TV, where no one has seen this videotape. But you still have a right to have defendants tried by a jury of their peers. I think there is always an overwhelming preference to try a case in the jurisdiction where the incidents occurred and the witnesses are located.

We've watched, as you know, trial after trial end in acquittal of these kinds of cases against police, and that includes the Philando Castile case that you were involved in.

Yes.

How likely do you think it is that we will see a conviction for former officer Chauvin, at the very least?

Well, these are very tough cases. I think the case against Chauvin is clear cut when you compare it to the other officers. I mean, I am having trouble, basically, arguing a defense for Officer Chauvin, unless it's rooted somewhere in the autopsy reports or the medical records. You know, I think the other officers are going to have something to say in their defense.

Here's a good example: Officer Lane, on at least two occasions on that videotape, suggested that, hey, we need to roll over this man because he looks like he's in some type of mental distress and Officer Chauvin basically says no. We also have this dynamic here where you have a very senior officer who's in charge of the situation and three much younger — at least two very young officers who've been on the force for only a year. So they may have things to say in their defense.

One other thing I want us to keep in mind is that we don't have the body-worn cameras. We don't have all the police reports. One big factor in this prosecution is what did these officers say when they wrote their incident reports? And is there any effort by any of them to conceal what was going on? Because if there are lies or misstatements in those reports, that's going to be evidence against those officers.

Don Lewis, I appreciate your time this morning. Thank you so much for joining us.

Thank you for having me, Cathy.

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