Derek Chauvin won’t get 40 years in jail

By now we all know George Floyd, the black American who died under the knee of police officer Derek Chauvin on May 25 in Minneapolis in the US state of Minnesota. The death created worldwide outrage and it further enraged global citizens when initially it was announced that no criminal charges would be laid, although all four officers involved were fired the same day.

As the protests grew, so did the pressure on authorities and the officer – who restrained George Floyd under his knee, on May 29, 4 days after the death of George Floyd, Derek Chauvin was charged with the charge of a Third Degree murder carrying a jail term of not more than 25 years under Minnesota Stature 609.195(a) and second-degree manslaughter which carries a jail term of maximum 10 years under Minnesota Statute 609.205(1).

After a very vocal public outcry about the leniency of the original charges Minnesota Attorney General Keith Ellison upgraded the charges against Chauvin, 44, to include an additional charge of second-degree murder. A Second Degree Murder charge under Minnesota Statute 609.19.2(1) carries a jail term of maximum 40 years.

Essentially for the purposes, the Minnesota Statute 609.19.2(1) simplified reads as below:

Whoever causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense, is guilty of unintentional murder in the second degree and may be sentenced to imprisonment for not more than 40 years.

This is the upgraded and additional charge against Derek Chauvin in addition to the first two. In essence, after the upgrade there are three counts of charges against him:

Count I – Charge of Second Degree Murder – carrying a jail term of not more than 40years;

Count II – Charge of Third Degree Murder – carrying a jail term of not more than 25 years; and

Count III – Charge of Second Degree Manslaughter – carrying a jail term of not more than 10 years.

To see a copy of the Charge Sheet filed against Derek Chauvin, click here.

But for those who think Derek Chauvin will be jailed for 40 years, in my view are going to be disappointed. The sentence for Derek Chauvin is not going to be anywhere near as long as the protestors would like to see.

His sentence will be governed by a number of factors including the Minnesota Statute and facts of the tragedy.

Firstly, the Minnesota Statute generally forbids punishing a defendant for more than one offense committed as part of a so-called single behavioral incident. Minnesota Statute’s subdivision 1 of 609.035 says if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses.

Secondly, and perhaps rightly, the Minnesota Attorney General has charged Derek Chauvin with “unintentional” Second Degree Murder although 609.19.1 does provide for it. Derek Chauvin’s Count I is Second Degree Murder without Intent under 609.19.2(1).

Thirdly, and Derek’s lawyers will know better, the charge of second degree murder requires the culprit (in this case Derek) to be committing a felony, which he will claim, he was not, and was in fact only doing his duty.

Also, Derek Chauvin is a decorated officer of some vintage who has been awarded commendation medals twice in 2008 & 2013. His judgement of the force he needed to use on this occasion – which ended up being more than he should have – will most definitely be explained to be tragically accidental than deliberate.

Neither the Attorney General’s office nor the other three officers – Tou Thao, 34, J. Alexander Kueng, 26, and Thomas K. Lane, 37, on the scene can attribute “intent” on Derek’s part. If they do, they fall into serious issues themselves. At the moment they have been charged with aiding and abetting Derek Chauvin.

Other factors include George Floyd’s health, personal circumstances and the medical examiner’s postmortem report. The report has revealed Floyd had arteriosclerotic and hypertensive heart disease. His toxicology testing revealed presence of fentanyl and evidence of recent methamphetamine use.

And Floyd also was COVID-19 positive.

The medical examiner “opined that the effects of the officers’ restraint of Mr. Floyd, his underlying health conditions and the presence of the drugs contributed to his death.”

To sentence Derek Chauvin to 40 years’ imprisonment, in my view, the judge will have to conclude that Derek Chauvin’s single act of restraining George Floyd with excessive force was the single reason for his death.

That’s not the case. Thus I believe it is almost impossible to imagine Derek Chauvin getting the maximum jail term of 40 years.

Dinesh Malhotra is a qualified Indian lawyer admitted to practice law in India.