Derek Chauvin’s trial for the alleged murder of George Floyd is about to start . . . maybe. This case is what’s known in the prosecution biz as a charging nightmare. It has gotten more complicated due to the trial judge’s lawless attempt to defy a flawed higher-court ruling that, in effect, forced the reinstatement of a controversial murder count — a charge of “depraved-indifference” homicide, which the trial judge had thrown out in October. At this point, the Minnesota Supreme Court may need to sort it all out, which could delay matters for months. Or perhaps Chauvin’s trial will proceed under a cloud of uncertainty. Let’s back up. Chauvin is the most culpable of the four defendants charged in Floyd’s death, all of whom were police officers at the time but have since been fired. Chauvin is going to be tried separately, and jury selection is supposed to commence this week. The case is a charging nightmare because it is atypical. Murder usually involves an intentional and illegitimate use of force that obviously could cause death. Here, the case centers on police who were permitted to use reasonable force and who did not intend to cause death. Floyd, who was validly suspected of passing a counterfeit $20 bill, resisted a legitimate arrest, at least “passively.” That is, he does not appear to have assaulted or threatened the arresting officers, but he did refuse to comply with their lawful commands to submit to being restrained, including being detained in their squad car. Police are permitted to use reasonable force to place a suspect under arrest, and to subdue a suspect who resists arrest. The circumstances are further complicated by Floyd’s size and condition: He was a big, strong man, for whom none of the officers was a physical match; and he was impaired, having ingested fentanyl and methamphetamine. A Police Encounter Becomes a Lethal Assault The state of Minnesota, led by Attorney General Keith Ellison, has brought three charges against Chauvin. The main one is second-degree unintentional murder. It alleges that, while Chauvin did not intend to cause Floyd’s death, he did cause it in the course of committing another felony offense — criminal assault, which is the intentional, unjustifiable infliction of bodily harm. Now, the encounter did not start out as a criminal assault. To repeat, police are allowed to cause bodily harm to the extent reasonably necessary to subdue a suspect who is resisting a legitimate arrest. So, the complex questions are (1) whether a permissible police use of force evolved into a criminal assault over time, and (2) whether Chauvin intended bodily harm in the criminal sense — i.e., whether his use of force was so excessive under the circumstances that he understood the bodily harm he was intentionally causing was beyond what was reasonably necessary to restrain an uncooperative detainee. There is significant evidence that Chauvin’s use of force was excessive. Chauvin was a 19-year veteran who’d received extensive training. Minneapolis police are instructed not to use neck restraints, which can obviously make breathing difficult, on suspects who are only passively resisting. How passively Floyd was resisting is sure to be a hotly disputed issue at the trial; though he was not physically aggressive toward the police, he ended up lying on the ground because he physically resisted their vigorous efforts to place him in the squad car. That said, Chauvin maintained the neck restraint on Floyd, pressing his face into the hard street, for over nine minutes, despite Floyd’s pleas that he was having trouble breathing. Through more than the last four of those minutes, while Chauvin continued to apply this pressure, Floyd clearly was offering no resistance; Chauvin rebuffed a fellow officer’s suggestion that they roll Floyd onto his side (which, police are trained, facilitates breathing); concerned civilians beseeched Chauvin to relent; Floyd stopped speaking and appeared to stop breathing; the detaining officers could not detect a pulse; and an off-duty fire-department medic was denied the opportunity to provide CPR or other emergency assistance. Such was Chauvin’s persistence that he even maintained the pressure on Floyd’s neck for a full minute after the ambulance arrived on the scene. Less than an hour later, Floyd was pronounced dead at the hospital. The evidence is sufficiently horrifying and out of the mainstream to outweigh legitimate concerns that police will shy away from making arrests for fear of being charged with criminal assault. This is why the trial judge, Peter Cahill of the Fourth District Court in Minneapolis’s Hennepin County, denied a motion to dismiss this second-degree murder count. It is never certain before trial that the state’s evidence will unfold as the prosecutor predicts, and the defense could present proof that puts matters in a more exculpatory light. But on a pretrial dismissal motion, the court must assume the facts, and the rational inferences that flow from them, in the light most favorable to the prosecution. On that standard, a rational jury could find beyond a reasonable doubt that Chauvin’s neck restraint did become an assault in which the former officer intended to cause Floyd bodily harm. But it’s no slam dunk. Police use of force is complex, intent is complex, the burden of proof is high, and the jury would have to be unanimous to convict. Hence, the two other charges. The Law and the Political Narrative If there is a count on which the evidence seems overwhelming, it is the second-degree manslaughter charge. For that, the prosecutor must establish that Chauvin caused Floyd’s death under circumstances where Chauvin was (1) culpably negligent in a way that created an unreasonable risk, and (2) conscious that this risk carried the potential of death or serious bodily harm. If the prosecutor’s proffer of the evidence is accurate and the jury is rational, Chauvin is certain to be convicted of this charge. Alas, here is where the politics weighs on the law. In the Left’s racialized narrative of Floyd’s tragic death, a white cop brutally killed a helpless black man who is to be seen as not just innocent but sacralized. Ergo, nothing less than a murder conviction will do. If we could tune out the political overtones and just focus on intent, it is easier to conclude beyond a reasonable doubt that Chauvin acted recklessly than that he intentionally sought to physically harm Floyd in a manner that went beyond what a cop can permissibly do to an uncooperative suspect. Both conclusions are supportable, but logically it is always easier to draw a conclusion that does not require a finding that someone had bad intent — which is why murder is a more serious offense than manslaughter. Moreover, this is not an either/or situation. The jury could convict Chauvin of both second-degree murder and second-degree manslaughter. (Whether a judgment of conviction could be entered on both — i.e., whether the manslaughter count would be subsumed into the murder count for conviction and sentencing purposes — is a separate question.) Still, if the prosecution’s case does not play out in the courtroom as convincingly as it appears on paper, it is clearly foreseeable that the jury could convict on the manslaughter but acquit on the murder. Third-Degree Murder: Depraved Indifference Because of the political and cultural significance of Floyd’s killing, Ellison is keen to convict him of murder, not manslaughter. That brings us to the third charge, which is third-degree unintentional murder, and the judicial infighting that has made matters even more fraught. To understand the controversy, we need to quote the language of the relevant statute, and note my italics. Under Section 609.195(a) of the state penal code, a defendant is guilty of third-degree murder if: without intent to effect the death of any person, [the defendant] causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life. Back in October, Judge Cahill granted the motion to dismiss this charge. Under the plain language of the statute, and the well-settled concept of “depraved-indifference” homicide, the accused must commit an act that is depraved because it is indifferent to human life, and thus imperils everyone in the vicinity. That is not what Chauvin did. His conduct was specifically targeted at Floyd. He was not indifferent to human life in general. If you believe, as I do, that he acted in a reckless manner that was heedless of Floyd’s well-being and created an unreasonable risk of death or serious injury, that is precisely what the above-described manslaughter charge alleges. Depraved-indifference murder is not supposed to be a sleight-of-hand that elevates manslaughter to murder, or that effectively turns an unintentional killing into an intentional murder by substituting depraved indifference for malice aforethought. It is meant to address the sociopath who, say, fires a gun into a crowd, not seeking to kill or wound anyone in particular, but who poses a lethal risk to everyone. That is why I believe Judge Cahill was right to grant Chauvin’s motion to dismiss the third-degree-murder charge, while rejecting his motion to dismiss the second-degree murder charge. This departs from my assessment when Chauvin was first charged; in hazarding an early view that depraved-indifference murder could be a fitting charge, I did not adequately account for the text of the statute and Minnesota’s law on the subject. If the state is going to convict Chauvin of murder, it needs to prove that he intended to cause bodily injury to Floyd specifically. If he killed Floyd in the course of criminally intending to assault Floyd specifically, not to create a general lethal risk without caring who might get hurt, the appropriate charge is murder in the second degree, not the third. Furthermore, if he did not exhibit depraved indifference to human life in general, but rather was recklessly irresponsible in connection with Floyd specifically, the appropriate charge is manslaughter, not depraved-indifference murder. The Noor Case and Reinstatement of the Third-Degree Murder Charge That is where matters stood until a Minnesota appellate-court panel, in a divided ruling, distorted homicide law in another excruciating case, in order to make it easier to convict a criminally negligent police officer of murder. In salient ways, the case of Officer Mohamed Noor is similar to Chauvin’s. Noor and his partner were responding to a distress call — that of a woman named Justine Damond, who had reported a possible sexual assault against a different woman. Upon driving up to the scene at night, Noor heard what he thought was a threatening bang on the door of his squad car. Tragically, the person outside the door was Damond, who’d been waiting for the police to arrive. But a Noor saw only a silhouette and, in his panic, fired from inside the car, killing her. Like Chauvin, Noor was charged with second- and third-degree murder, in addition to a second-degree manslaughter count of which he was patently guilty. The jury did exactly what Ellison fears a jury could do in Chauvin’s case: It acquitted Noor of second-degree murder because the evidence of the officer’s intent to criminally assault the victim was weak. It was in anticipation of that contingency that the prosecutor had added the third-degree depraved indifference murder charge against Noor, just as Ellison sought to do against Chauvin. The trial judge in Noor’s case permitted that charge. The jury found him guilty on the third-degree murder and manslaughter counts, and Noor was sentenced to twelve-and-a-half years’ imprisonment. In early February, the appellate panel upheld Noor’s third-degree murder conviction in a 2-1 decision. The majority reasoned that, for purposes of depraved-indifference murder, the statute’s requirement of an act “eminently dangerous to others” could include an act that endangered only a single person. Dissenting, Judge Matthew Johnson reasoned that this conclusion flouted the language of the statute and the concept of depraved indifference. Noor has now appealed this ruling to the Minnesota Supreme Court. It will hear arguments in the case, but not until June. Regardless of what one thinks of the appellate court’s Noor decision, it is binding on Judge Cahill in Chauvin’s case. That, however, is not how Cahill chose to see it. When Ellison justifiably moved, based on Noor, to reinstate the third-degree murder charge against Chauvin, Cahill denied the motion — nattering nonsense about how the ruling might not be procedurally final, and could be appealed. Of course, in the judicial system, as in the military, the inferior does not get to ignore the superior. The fact that Cahill thinks the dissent had the better of the argument in Noor is about as relevant as my thinking on the matter — which is to say it makes no difference. The lower court must follow the higher court’s precedent unless and until it is overruled by the highest court. That’s the way it works, as the appellate court patiently reminded Judge Cahill last week. The court unanimously reversed his denial of the state’s motion and reinstated the third-degree murder charge against Chauvin. So . . . What Now? This is where matters stand as jury selection is supposed to begin on Monday. Obviously, Chauvin’s counsel may seek a delay, either to directly appeal the reinstatement of the third-degree murder charge to the state supreme court, or to hold Chauvin’s trial in abeyance until that tribunal rules on the Noor case. Either course would entail a delay of several months, unless the Supreme Court expedites matters. To be clear, Chauvin may seek an adjournment but he is not entitled to one, even if it would be preferable to have a determination from the state’s highest court on the validity of the depraved-indifference homicide count. The courts could decide to let Chauvin’s trial go forward, with everyone on notice that the charge is uncertain. In the interim, the increased likelihood that he could face conviction for depraved indifference to human life – as, of course, could the other three former officers who are charged with aiding and abetting Chauvin – will weigh on whatever plea negotiations are ongoing. Maybe Derek Chauvin’s trial is about to start. Maybe it is not. But there is no end in sight to the strife in Minnesota, and across the nation, over George Floyd’s death in police custody.